Social Media Posts Trip-Up Lawyer

I went to GW Law. It’s in D.C. When I was there, Washington didn’t have a major league baseball team.  But, Baltimore did.

Early in my 2L year, the Red Sox played a day-night double-header against the Orioles. My buddy Tom and I made the trek to the old Memorial Stadium.  (aside: it’s depressing to realize that my law school days pre-date Camden Yards. It didn’t open until the fall of my 3L year.)

I remember two things about the game.  The first is that Roger Clemens pitched & dominated.  Don’t take my word for it: per the magic of the interwebs, the box score is here.

The second thing I remember is that I skipped class to go.  I have no recollection of doing so, but it wouldn’t shock me if, during the game, I made a stupid, off-hand comment to Tom along the lines of “if a foul ball lands near us, I hope the professor isn’t watching on tv!”

These days, Tom and I are both quite active on Instagram.  Had it been around then, we’d undoubtedly have posted pictures of ourselves reclining with beers in a near empty upper deck as The Rocket mowed down the O’s.  And, quite possibly, my professor would’ve seen.

Which brings me to today’s story.  It comes courtesy of the ABA Journal and Lawyer Ethics Alert Blog.

Last month, a federal district judge issued this order sanctioning a lawyer.  The lawyer had filed a request to extend a deadline, citing a family emergency that required the lawyer to be in Mexico for over two weeks.  In fact, the lawyer was not in Mexico as claimed. Rather, the lawyer was in both New York City and Miami, and was on vacation for at least some of the time.

How’d the lawyer get caught?

That’s right, opposing counsel saw pictures the lawyer posted on Instagram.

#busted

 

At CLEs, I’ve often said that the duties of competence & diligence include (1) reviewing an opposing party’s publicly available social media; and (2) advising a client that the other side is looking at the client’s.  Now I suppose I can add:

(3) someone is checking yours.

 

p.s. – today’s story is so 2009.

 

 

 

 

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Monday Morning Answers: Carvel & WPIX

Wow!  I had no idea that a post about Carvel & WPIX would resonate with so many.   Thank you readers for sharing your thoughts! I’ve pasted some of them in below the answers.

Friday’s questions are here.  The answers follow the Honor Roll.

Honor Roll

• Karen Allen, Esq.
• Matthew Anderson, Pratt Vreeland Kennelly & White
• Evan Barquist, Montroll, Backus, & Oettinger
• Penny Benelli, Dakin & Benelli
• Leslie Black, Black & Govoni
• Robert Grundstein, Esq.
• Gregg Harris, Assistant Attorney General, Buildings & General Services
• Glenn Jarrett, Jarrett & Luitjens
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Jeanne Kennedy, JB Kennedy Associates
• Shannon Lamb, Pratt Vreeland Kennelly & White
• John Leddy, McNeil, Leddy, & Sheahan
• Michael Lipson, Esq.
• Lon McClintock, McClintock Law Offices
• Jeffrey Messina, Bergeron Paradis Fitzpatrick
• Hal Miller, First American
• Herb Ogden, Esq.
• Nancy Rogers, Chamberlin Elementary School
• James Runcie, Ouimette & Runcie
• Jay Spitzen, Esq.
• Allison Wannop, Esq.
• Thomas Wilkinson, Jr., Esq, Cozen O’Connor
• Carole Zangla, Grafton County (N.H.) Senior Citizens Council
• Peter Zuk, Kyocera Copiers, PRB hearing panel member

 

Answers

Question 1

What’s Vermont’s rule?  A lawyer shall:

• A.  Charge a reasonable fee.
• B.   Not charge an unreasonable fee.
• C.   Not charge or collect an unreasonable fee.
• D.   Not make an agreement for, charge, or collect an unreasonable fee.  V.R.Pr.C. 1.5(a).

Question 2

Fill in the blank.

The third comment to a particular rule defines __________ ___________ as involving “the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representationw would materially advance the client’s position in the subsequent matter.”

It’s the definition of:

• A.  when matters are “substantially related”.  V.R.Pr.C. 1.9(a), Comment [3].
• B.   what type of information qualifies as a “client confidence”
• C.   a concurrent conflict of interest
• D.  a non-waivable conflict of interest

Question 3

Which is different from the others?

• A.  Friending an adverse & represented party.
• B.  Reviewing a potential juror’s Twitter account.
• C.  Advising a client to “take down” social media posts.
• D.  Crowdfunding litigation.

“A” is most likely to be a rules violation.  Violations including contacting a represented party and engaging in dishonest conduct.  For more, see these advisory opinions from the District of Columbia, New Hampshire & Massachusetts.

Reviewing a juror’s public Twitter feed is not a violation. Arguably, the duty of competence requires it.  

Crowdfunding is not a violation. I’ve blogged about it here.

Advising a client to “take down” social media posts is not, in and of itself, a violation.  For example, see these advisory opinions from Florida and Pennsylvania

Question 4

Isaiah meets with Lawyer to discuss a potential claim against Lonzo.  Isaiah mentions that Attorney represents Lonzo   Attorney and Lawyer are married to each other.

Which is most accurate in Vermont?

• A.   Lawyer is prohibited from representing Isaiah.
• B.   Lawyer is prohibited from representing Isaiah unless Isaiah provides informed consent that is confirmed in writing.
• C.  Lawyer is prohibited from representing Isaiah and the conflict is imputed throughout Lawyer’s firm.
• D.  Both Isaiah & Lonzo are entitled to know of the Attorney/Lawyer marriage and, ordinarily, Attorney & Lawyer may not continue unless each client gives informed consent.  V.R.Pr.C. 1.7, Comment [11]

Question 5

A woman named Linda passed away earlier this week.  She was 76 and grew up in Topeka, Kansas.  I don’t know whether anyone who reads this blog ever met her.  But, I’m positive that nearly every single person who reads this blog & who went to law school read about her in class.

What was Linda’s last name?

Linda Brown was 8 years old when she was turned away from Sumner  Elementary School in Topeka.  4 years later, the U.S. Supreme Court issued its decision in Brown v. Board of Education.  Linda’s passing was covered by many outlets, including NPR, the Huffington Post, the Chicago Tribune, and the New York Times.

*************************************************************************************Comments on WPIX & Carvel’s Ice Cream

• Your post today brought back some fond memories for me as well, I grew up in Northern NJ and used to watch channel 11 regularly.  As for the Carvel commercials and can still hear “Cookie Puss” and “Fudgie the Whale” in my mind if I close my eyes…
• Get Smart was a silly favorite of mine.
• How could you forget the classic (and now most politically incorrect!) F Troop?!  Sgt. O’Rourke, Cpl. Agarn, the Hekawi’s.  Only 65 episodes
• Carvel’s was almost closest to my house; not as high quality as Marcus Dairy, out on Rt. 7, but closer…and we always had a craving for their “Flying Saucers”, wonderful ice cream sandwiches with crispy chocolate wafers! Bought them by the dozen to put in the freezer. I even remember “Mr. Carvel” who did the tv ads…can’t remember the pitch, but he was an “old guy” with a mellifluous voice.
• What about The Mod Squad!?!?  Linc was the best! Peggy Lipton won an Emmy!
• WPIX – Home of the Yankees.  My sister’s roommate in college was Cindy Rizzuto, The Scooter’s daughter.  “Holy Cow, can you believe that?”  AND …..There was nothing I wanted more on my birthday than a Carvel Ice Cream Cake.
• Did you actually watch Yankee games on WPIX?  How did your Dad allow that?
• Wow, that Magic Garden song made me laugh out loud. 
• I did live near a Carvel – and yes – that was a treat – BUT, what I recall was going to a place called Jahn’s  Ice Cream Parlor.  They had “everything but the kitchen sink”  and it served at least 8.  It was served in a mini kitchen sink – with all flavors.  Kind of disgusting, actually.  They also had a .02 cent plain.  This was a glass of seltzer.  I love how your intros each week bring back memories.
• Your blog on Carvel and WPIX brought back so many memories.  Hours spent watching Abbott and Costello reruns, Superman, Batman and not to mention Chiller Theater.  It was the only station on TV that regularly got me into trouble.  My mom thought Batman was way too violent and Chiller was beyond the pale.  That being said, she had no objections to watching The Bells of St. Mary’s or John Wayne in the Quiet Man, movies that ran almost monthly on WPIX.  Between WPIX in the afternoon and MAD magazine, I expressed my grade school rebellion. Oh those days. 
• Love your blog this am,Especially since I grew up in Queens and Carvel was the height of taste bud heaven. To this day, I love ice cream! And who says ice cream doesn’t help one’s bp? Here’s to Carvel and WPIX!

Competent Advice & Privacy Settings

Rule 1.1 requires lawyers to provide clients with competent representation.  As nearly everyone who has read my blog twice knows, my position is that competence includes tech competence.

It’s also my position that a lawyer has a duty to provide a client with competent advice as to the impact, if any, that the client’s social media will have on a matter.

Let me be clear.

I often hear “but, Mike, I don’t want to have a Facebook account.”  I am not saying that you are required to.  Rather, I’m saying that you should know that your clients most likely do and, further, that information posted to a client’s Facebook account might impact the matter in which you are representing the client.

Here’s the latest.

Per the ABA Journal, a New York court ruled that the defense may discover photos that a personal injury plaintiff posted to Facebook and set as “private.”  The opinion is here.

The upshot:  it’s likely not competent to advise clients “don’t worry, as long as you keep it private, the other side won’t be able to access it.”

The case is one in which the plaintiff fell from a horse.  She sued, alleging that the defendant’s defective mounting of the stirrups caused the fall.  Among other things, plaintiff contends that her injuries prohibit her from many activities that she used to enjoy.

During her deposition, plaintiff testified that, prior to her fall, she had regularly posted photos to Facebook.  The defense requested access to the photos, which plaintiff had set to “private.”  Plaintiff declined to provide access.

The defense moved to compel production of the photos.  The defense argued that the photos bore on the credibility of plaintiff’s assertion that she had previously engaged in the activities that, now, she claimed she could not.

Plaintiff’s attorney countered that the single public photo on plaintiff’s Facebook account did not contradict her deposition testimony.  As such, the argument went, the defense had not established that access to the private portion of the account was likely to lead to the discovery of relevant information.

The trial court compelled production.  An appellate court modified the order to compel, limiting it only to photos that plaintiff intended to introduce at trial.  In the end, the New York Court of Appeals reinstated the trial court’s order. In so doing, the Court set out the various factors that a trial court should consider in response to a motion to compel production of information stored electronically on a social media platform.

I won’t go into the court’s decision in length.  Here are two key takeaways:

1. As I’ve often said, electronically stored information is no different from any other information.  Or, in this case, photographs posted to Facebook are no different than photos that grandma slid behind plastic in that old, musty, album.
2. A quote from the NY Court’s opinion (citations deleted):
   • “Plaintiff suggests that disclosure of social media materials necessarily constitutes an unjustified invasion of privacy. We assume for purposes of resolving the narrow issue before us that some materials on a Facebook account may fairly be characterized as private.But even private materials may be subject to discovery if they are relevant. For example, medical records enjoy protection in many contexts under the physician-patient
     privilege  But when a party commences an action, affirmatively placing
     a mental or physical condition in issue, certain privacy interests relating to relevant medical records – including the physician-patient privilege – are waived. For purposes of disclosure, the threshold inquiry is not whether the materials sought are private but whether they are reasonably calculated to contain relevant information.”

Remember: competence includes tech competence.

Five for Friday #92: I don’t wanna lose you now . . .

Welcome to #fiveforfriday #92!

So, my first question today is “what was wrong with us in ’92?”

I am referring to the halftime “entertainment” at the 1992 Super Bowl.

Super Bowl XXVI was played in Minneapolis.  Washington drubbed Buffalo in a boring game.  I don’t have a specific recollection of the halftime show, but it must have been even more boring than the game.  The theme was “winter” and the “Winter Olympics.” Here’s the line-up:

• dancers celebrating winter;
• Winter Olympic medal winners Dorothy Hamill & Brian Boitano skating on sheets of Teflon (the game was indoors);
• The University of Minnesota Marching Band; and, for the closing act,
• Gloria Estefan.

Umm…..

THAT is what passed for entertainment in 92??? It’s miracle that there was a Super Bowl XVII!

As an aside, loyal readers know that I preach competence.  Well, even taking the relative competence of the halftime acts out of the discussion, the program’s internal structure demonstrates an utter LACK of competence. What kind of presentation whose theme is “winter” features a closing act whose band is the Miami Sound Machine?!?!?

Which brings us to this week.

This season, the game returns to Minneapolis, with Super Bowl LII scheduled to be played outdoors in the gleaming new U.S. Bank Stadium.  Likely the Pittsburgh Steelers against a sacrificial lamb from the NFC.  And guess what was announced earlier this week?

Justin Timberlake will headline the halftime show.   Talk about competence!!!!

A few weeks ago, I used this space to confess I’m a Swiftie.  Here’s another right hand on a cold one confession: I’m a big fan of JT.

I was in my car when I heard the Super Bowl announcement.  Immediately, I scrolled to Mirrors.  If my nascent karaoke career ever gets off the ground, Mirrors might become my go-to song.  It’s the perfect karaoke set-up:

• great beat for the audience to snap their fingers to;
• everyone will know & sing along to the chorus, thus drowning out my voice; and,
• that part at the end where the chorus is sung without any instruments.  I love when that happens in a song. I haven’t finalized the choreography yet, but that’s probably when I’ll point the mic at the crowd and have you sing along.

Critical: I’ll need backup singers.  You know, for these parts:

• (me) It’s like I’m a mirror 
• (backups)   oh oh   
• (me) My mirror staring back at me
• (backups) oh oh                                                                                                                             

Consider this an open casting call.

Onto the quiz!

Rules

• None.  Open book, open search engine, text-a-friend.
• Exception:  Question 5.  We try to play that one honest.
• Unless stated otherwise, the Vermont Rules of Professional Conduct apply
• Team entries welcome, creative team names even more welcome.
• E-mail answers to michael.kennedy@vermont.gov
• I’ll post the answers & Honor Roll on Monday
• Please don’t use the “comment” feature to post your answers
• Please consider sharing the quiz with friends & colleagues
• Share on social media.  Hashtag it – #fiveforfriday

It’s Celebrate Pro Bono week. So, this week’s questions focus on the pro bono rules.

Question 1

How much pro bono work do the rules encourage Vermont attorneys to provide per year?

• A.    A reasonable amount
• B.    50 hours
• C.    60 hours
• D.    A meaningful amount

Question 2

True or false: the rules exempt government & non-profit attorneys from the pro bono expectation.

Question 3

Client retains Lawyer in a divorce.  Client agrees to pay Lawyer an hourly fee.  The fee agreement is reduced to a writing that is signed by Client.

The matter ends with a final order.  By then, Client has paid less than 10% of the total fee and owes Lawyer for approximately 60 hours of work.  Lawyer writes off the bill.

May Lawyer claim the 60 hours as pro bono?

• A.    Yes, because Lawyer did not get paid.
• B.    Yes, as long as Lawyer does not continue to try to collect the bill.
• C.    Yes, but cannot claim the hours if Client decides voluntarily to pay.
• D.    No.

Question 4

Which section of the rules is relaxed for lawyers who do pro bono work at short-term legal services programs sponsored by non-profits or government agencies?

• A.   The trust accounting rules
• B.   Rule 1.1 and the duty of competence
• C.   Rule 1.6 and the duty of confidentiality
• D.   The conflicts rules

Question 5

At various live quizzes, I’ve used questions related to the ethics of P2P filing sharing and the legal battle between Napster & Metallica.

Your task: name the movie in which Justin Timberlake played Sean Parker, the co-founder of Napster.

There’s a hint in the tags.  And, here’s a bit of the dialogue:

Sean Parker: Well, I founded an internet company that let folks download and share music for free.
Amy: Kind of like Napster?
Sean Parker: Exactly like Napster.
Amy: What do you mean?
Sean Parker: I founded Napster.

 

 

 

 

 

 

Competence, ESI, and E-Discovery

I’ll say it again: Rule 1.1’s duty of competence includes tech competence.

To me, the duty includes:

• knowing that that “it” exists,
• knowing that clients, their adversaries, and witnesses have “it;” and,
• knowing how to protect, preserve, produce, request, review, and use “it.”

What is “it?”

It is Electronically Stored Information (“ESI”).  Nearly every lawyer who has a client, has a client whose lawyer needs to know about ESI.  Indeed, I can’t think of a practice area in which a lawyer need not know about ESI.

• Whether civil, criminal, probate, or family court, with so many of us so active on social media, ESI is a treasure trove of evidence.  Wondering how to admit a text, tweet, or social media post into evidence?  Check out the Evidence in Practice seminar at next week’s Annual Meeting of the Vermont Bar Association.
• Wondering about your duties if a client asks about “scrubbing” or “taking down” social media posts?  The Pennsylvania Bar has issued some guidance.
• For those of you practicing in the Vermont Superior Court’s Civil & Family Divisions, VRCP 26(a) lists the methods by which a party may obtain discovery.  Among them: a Rule 34 request to produce ESI.  Rule 26(b)(2)(A) imposes specific limitations on the discovery of ESI.  The federal rules of civil procedure have similar provisions.
• Doing any estate work? There’s a new  Vermont law on digital assets.
• Those of you who are in-house or general counsel . . . do you have some idea as to what ESI your client has, where it’s stored, and how long it’s kept? Have you talked to your client about its policy on employees using personal devices to access company data? Today, Above The Law posted some practical tips on preservation letters, including tips related to preserving & producing ESI.

I could go on & on. It is everwhere.

In 2015, the State Bar of California’s Standing Committee on Professional Responsibility and Conduct issued Formal Opinion 2015-193.  The opinion responds to the question “[w]hat are an attorney’s ethical duties in the handling of discovery of electronically stored information?”  Here’s the digest:

• “An attorney’s obligations under the ethical duty of competence evolve as new
  technologies develop and become integrated with the practice of law. Attorney
  competence related to litigation generally requires, among other things, and at a
  minimum, a basic understanding of, and facility with, issues relating to e-discovery,
  including the discovery of electronically stored information (“ESI”). On a case-by-case basis, the duty of competence may require a higher level of technical knowledge and ability, depending on the e-discovery issues involved in a matter, and the nature of the ESI. Competency may require even a highly experienced attorney to seek assistance in some litigation matters involving ESI. An attorney lacking the required competence for e-discovery issues has three options: (1) acquire sufficient learning and skill before performance is required; (2) associate with or consult technical consultants or competent counsel; or (3) decline the client representation. Lack of competence in e-discovery issues also may lead to an ethical violation of an attorney’s duty of confidentiality.”

Give the full opinion a read.

I assume most lawyers understand this, but here’s the critical point I want to make:  ESI is something that can be preserved, produced, and used.  Not knowing how to handle the discovery of ESI is no different from not knowing how to handle the discovery of paper documents.

 

If you’re new to ESI, here’s a primer that the ABA issued several years ago.  It’s a good start, but only a start.

 

 

So A Lawyer & Judge Are Facebook Friends . . .

So a lawyer & judge are Facebook friends.

So what?

The ABA Journal has the story of an appellate court’s decision that a Facebook friendship with a lawyer, without more, is not a sufficient basis to disqualify a judge.   The order is here.

This makes sense to me.  As with almost everything tech-related, I try to use analogies to non-tech stuff.  For example, if you learned that a lawyer who regularly appeared before a judge belonged to the same health club, or went to the same church, or was in the same law school class as the judge my guess is that you wouldn’t reflexively yell “conflict! disqualify the judge!”

No, you might ask something as simple as, “do they actually know each other? If so, how well? Do they do stuff together?”

In my view, Facebook is no different.  Florida’s Third District Court of Appeal agrees. (there’s no “s” – maybe the court only hears one case at at time).  The opinion presents a fantastic analysis of what it means, if anything, to be Facebook friends with someone.

Here are my favorite paragraphs from the ABA Journal’s post.  They include a quote from the opinion.

“Though a Facebook friendship may have once given the impression of a close friendship, that’s no longer the case, the Third District Court of Appeal said in explaining its disagreement with the other appeals court. Facebook uses data mining and network algorithms to suggest potential friends, and many Facebook users have thousands of friends, the appeals court said.

“ ‘To be sure,’ the opinion said, ‘some of a member’s Facebook ‘friends’ are undoubtedly friends in the classic sense of person for whom the member feels particular affection and loyalty. The point is, however, many are not. A random name drawn from a list of Facebook ‘friends’ probably belongs to casual friend, an acquaintance, an old classmate, a person with whom the member shares a common hobby, a ‘friend of a friend’ or even a local celebrity like a coach.’ ”

Ab, yes. A local celebrity.  Like a coach.  Music to my ears.