ethics of social media - us district court conference · 2015-04-02 · ethics of social media...
TRANSCRIPT
U.S. District Court Conference Las Vegas, Nevada
5/7/2015
Charity Felts, Esq. & Rebecca Bruch, Esq. Erickson, Thorpe & Swainston, Ltd. 1
ETHICS OF SOCIAL MEDIA
Presented by:
Rebecca Bruch, Esq.
Charity F. Felts, Esq.
Erickson, Thorpe & Swainston, Ltd.
U.S. District Court Conference
May 7, 2015
Sound familiar?
I don’t have to worry about social media
because I don’t use social media.
Social media doesn’t concern me, I don’t even
have a Facebook account.
What the heck is social media?
It’s time to face the monster
U.S. District Court Conference Las Vegas, Nevada
5/7/2015
Charity Felts, Esq. & Rebecca Bruch, Esq. Erickson, Thorpe & Swainston, Ltd. 2
Social media and the related
ethical issues
Ethical issues and the use of social media can
impact your practice in the following ways:
1. The use of social media as a discovery and
investigatory tool during litigation;
2. Counseling clients on their use of social
media; and
3. Using social media as a marketing tool
Communications with represented
parties
In the social media context
An attorney is barred from making an ex parte
friend request of a represented party
When the communication is intended to illicit
information about the subject matter of the case,
it is impermissible no matter how the
communication is transmitted
See SDCBA Ethics Op. No. 2011-2
Communications with unrepresented
witnesses
In the social media context
Duty not to deceive prohibits attorney from making a friend request of an unrepresented witness without disclosing the purpose of the request
See SDCBA Ethics Op. No. 2011-2
Accessing public social networking sites
You can access public pages of another party’s social networking site (e.g. Facebook)
See NY State Bar Ethics Op. No. 843
U.S. District Court Conference Las Vegas, Nevada
5/7/2015
Charity Felts, Esq. & Rebecca Bruch, Esq. Erickson, Thorpe & Swainston, Ltd. 3
Obtaining information from social
media
Gaining access through a third person
Lawyers are not permitted to engage in
dishonesty, fraud, deceit, misrepresentation, or
false statements
See Philadelphia Bar Association Ethics Op. No.
2009-02.
Juror research
Internet research is becoming a fundamental
component of client representation and
advocacy
Standards of competence and diligence vs.
ethical obligations
Attorneys may use social media sites for juror
research, but beware of engaging in
communication as a result
Juror research
Carino v. Muenzen, 2010 WL 3448071, (N.J.
Sup. Ct. App. Div. Aug. 30, 2010) (unpublished
opinion)
Trial court barred plaintiff’s attorney from using
his laptop to look up potential juror’s using the
courthouse's open WiFi
Sought a new trial after trial judge prohibited
attorney from using laptop during jury selection
U.S. District Court Conference Las Vegas, Nevada
5/7/2015
Charity Felts, Esq. & Rebecca Bruch, Esq. Erickson, Thorpe & Swainston, Ltd. 4
Juror research
Per the Carino court:
There was no suggestion that counsel’s use of the computer was in any way disruptive. That he had the foresight to bring his laptop computer to court, and defense counsel did not, simply cannot serve as a basis for judicial intervention in the name of “fairness” or maintaining “a level playing field.” The “playing field” was, in fact, already “level” because internet access was open to both counsel, even if only one of them chose to utilize it. Carino at *10.
Juror research
New York City Bar Association Op. No. 2012-
02
No communications with a juror -- even if
accidental or inadvertent
Do not follow a potential juror’s Twitter feed
Do not “friend” a juror
Do not “like” juror’s page
Inadvertent access - ABA’s Formal Op. No.
466 has a different view
Reviewing jurors’ internet presence
U.S. District Court Conference Las Vegas, Nevada
5/7/2015
Charity Felts, Esq. & Rebecca Bruch, Esq. Erickson, Thorpe & Swainston, Ltd. 5
Reviewing jurors’ internet presence
Highlights from the ABA opinion:
Passive review of juror’s social media, available
without making a request, and which the juror is
not aware, does not violate the rules
Lawyer may not personally, or through another,
send an access request to a juror
Reviewing jurors’ internet presence
Highlights from the ABA opinion:
A lawyer who uses a shared social media
platform to passively view juror social media
information does not constitute communication
with a juror
If a lawyer discovers criminal or fraudulent
conduct by a juror, the lawyer must take
reasonable remedial measures, which can
include disclosure to the tribunal
Anonymous browsing
Attorneys must not communicate with a juror
If a juror has any sort of notice that a lawyer
has viewed his or her page, the lawyer may
have violated an ethical rule
Even if the contact was inadvertent
Model Rule 3.5 – Impartiality and Decorum of the
Tribunal
U.S. District Court Conference Las Vegas, Nevada
5/7/2015
Charity Felts, Esq. & Rebecca Bruch, Esq. Erickson, Thorpe & Swainston, Ltd. 6
Anonymous browsing
Facebook – search for juror via Google or by
logging into Facebook if you have an account
Allows you to see the user’s public profile
May not be much available if the individual is
using privacy settings
Twitter – search for juror via Google or by
logging into Twitter if you have an account
Do not “follow” or “request to follow”
Anonymous browsing
LinkedIn – change settings in your LinkedIn
account to anonymous before searching for a
juror
Riskier tool unless you change to “completely
anonymous” searching
Consult your social media provider’s privacy
settings regularly to be sure you are browsing
anonymously. Settings are subject to change.
Jurors’ social media activity
“I guess all I need to know is GUILTY. lol.”
“[T]his is my secret blog. I don't know how secret it really is though. I want to tell secret jury things.”
Juror discussed case on a newspaper’s online comment board
Texting in plain sight of the judge – the unexpected glow in the juror’s chest while the courtroom lights were dimmed during video evidence
U.S. District Court Conference Las Vegas, Nevada
5/7/2015
Charity Felts, Esq. & Rebecca Bruch, Esq. Erickson, Thorpe & Swainston, Ltd. 7
Juror social media activity
Florida juror held in contempt and sentenced to three days in jail
Friending a defendant in a personal injury case
Posting “Score…I got dismissed” after being discharge from the jury
New York juror held in contempt and fined $1,000 after texting friends details about deliberation in a case
The friend was a district attorney who alerted the judge of the texts
Example from Missouri wrongful-
death trial
Juror: “Got picked for jury duty.”
Juror: “Sworn to secrecy as to details of this case. Most importantly the 3:00 p.m. Cocktail hour is not observed!”
Friend: “If he's cute and has a nice butt, he's innocent!”
Juror: “Drunk and having a great food at our fav neighborhood hangout.”
Friend: “I'm still amazed they allow jurors to nip from a flask all day.”
Juror: “Starting day 8 of jury service.”
Friend: “Remember nice ass = innocent!”
Juror: “Civic duty fulfilled and justice served. Now, where's my cocktail????”
Friend: “Was it Miss Peacock in the library with the lead pipe?”
Juror: “Civil case Verdict for the defendants . I was the jury forearm deliberations and verdict in under one hour.”
Jury admonishment
Majority of judges take steps to warn jurors not
to use social media during trial
Suggest frequent reminders
Before trial
Close of case
End of each day
Other times as appropriate
Violations are usually reported by fellow jurors
U.S. District Court Conference Las Vegas, Nevada
5/7/2015
Charity Felts, Esq. & Rebecca Bruch, Esq. Erickson, Thorpe & Swainston, Ltd. 8
Model jury instruction
Model jury instruction
Social media: the more you know
U.S. District Court Conference Las Vegas, Nevada
5/7/2015
Charity Felts, Esq. & Rebecca Bruch, Esq. Erickson, Thorpe & Swainston, Ltd. 9
What you might learn
Simply using a search engine can yield extensive public information on prospective jurors
What to look for:
Likes
Dislikes
Friends and Followers
Education and Employment
Social Media Activity Level
Political Affiliations
Personal Blogs or Websites
Using social media in litigation
Accessing the other party’s social media posts
and information
Common objections:
Privacy concerns
Fishing expedition
Overly broad
Burdensome
Harassing
Embarrassing
Using social media in litigation
Locked or private? It may not matter.
Emotional injuries will manifest on social
media posts
What’s potentially relevant?
Relevant discovery often include
profiles, postings, messages, photographs or
videos
EEOC v. Simply Storage Management, 270
F.R.D. 430 (S.D. Ind. 2010)
U.S. District Court Conference Las Vegas, Nevada
5/7/2015
Charity Felts, Esq. & Rebecca Bruch, Esq. Erickson, Thorpe & Swainston, Ltd. 10
Using social media in litigation
Broad discretion of the court
Physical capabilities and social activities
depicted on Facebook
Balancing access against personal interest
Thompson v. Autoliv ASP, Inc., 2:09-CV-
01375-PMP-VCF, 2012 WL 2342928 (D. Nev.
June 20, 2012).
Spoliation
Allied Concrete Co. v. Lester, 736 S.E.2d 699 (Va. 2013). Personal injury and wrongful death case.
New trial sought because of undisputed misconduct by Plaintiff and his attorney
Defense attorney sought discovery of relevant info on Facebook page
Client instructed to “clean up” his Facebook page because “we don’t want any blow-ups of this stuff at trial.”
Spoliation
Allied Concrete Co. v. Lester, cont’d.
Plaintiff deleted his account and said he didn’t
have a Facebook account
Motion to Compel resulted in a partial response
Trial court awarded sanctions - $542,000 against
plaintiff’s counsel and $180,000 against plaintiff
Adverse inference jury instruction
Appellate court did not grant a retrial on the basis
of misconduct
U.S. District Court Conference Las Vegas, Nevada
5/7/2015
Charity Felts, Esq. & Rebecca Bruch, Esq. Erickson, Thorpe & Swainston, Ltd. 11
Advising clients
Advise your clients about the potential consequences of posting information on social media What they should/should not post
What postings may/may not be removed
Implications of social media posts
New York City Law Association Ethics Op. No. 745 (July 2, 2013)
Caution: Do not instruct the client to remove information that, because of the commencement of litigation, must be preserved
Attorneys using social media
Avvo.com
Yelp
Justanswer.com
Lawyers.com
Confidentiality concerns
Rule 1.6 – Confidentiality of Information
In re Tsamis (Ill. Disc. Comm’n 2013). Lawyer defends herself in an online controversy.
Client posted a bad review of lawyer on Avvo.com
Lawyer responded and posted confidential information
Lawyer suspended
Moral of the story: Don’t engage
U.S. District Court Conference Las Vegas, Nevada
5/7/2015
Charity Felts, Esq. & Rebecca Bruch, Esq. Erickson, Thorpe & Swainston, Ltd. 12
Thrashing your opposing counsel
In re Carlson, 833 N.W.2d 402 (Minn. 2013)
Carlson represented the husband in a contentious divorce.
Carlson did not get along with opposing counsel, S.L.
Carlson posed as a fictitious former client of S.L. and posted a very negative review of on Avvo.com
Carlson resigned and stipulated to a public reprimand
Endorsements and specialties
Do LinkedIn endorsements violate legal
ethics?
Some bar associations (SC, NY, FL) say yes
Prohibits a lawyer from listing specialties unless
the lawyer actually holds the specialization
A lawyer shall not make a false or misleading
communication about the lawyer or the lawyer’s
services. Rule 7.1.
Other pitfalls
Groupon – choosing a lawyer based upon
Groupon may not lead to retention of a person
with the requisite skill to handle the case
Blogs/chats offering advice – may lead to the
inadvertent creation of client relationship; may
not allow for proper conflict check or
disclosure of adverse interest
Blogging about clients – may lead to violation
of confidentiality obligations
U.S. District Court Conference Las Vegas, Nevada
5/7/2015
Charity Felts, Esq. & Rebecca Bruch, Esq. Erickson, Thorpe & Swainston, Ltd. 13
Monster, what monster?
Questions/Comments
Rebecca Bruch, Esq.
Charity F. Felts, Esq.
Erickson, Thorpe & Swainston, Ltd.
99 W. Arroyo St.
Reno, NV 89509
775-786-3930