Emerging Issues in Social Media: Can Lawyers and Judges be Friends?

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1 Emerging Issues in Social Media: Can Lawyers and Judges be Friends? Jessica Tucker-Ballard Indiana Court of Appeals November 7, 2013 Lawyers and Judges as friends on Facebook Code of Judicial Conduct Rule 1.2 shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety Rule 2.3 (A) shall perform the duties of judicial office, including administrative duties, without bias or prejudice Rule 2.3(C) shall require lawyers in proceedings before the court to refrain from manifesting bias or prejudice, or engaging in harassment Rule 2.4(B) shall not permit family, social, political, financial, or other interests or relationships to influence the judge s conduct or judgment Rule 2.9(A) shall not initiate, permit, or consider ex parte communication... concerning a pending or impending matter Rule 2.10(A) shall not make any public statement that might reasonably be expected to... Impair the fairness of a matter pending or impending before the court Lawyers and Judges as friends on Facebook Rules of Professional Conduct Rule 8.4(f) It is professional misconduct for a lawyer to: (f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct Rule 3.5(b) A lawyer shall not: (b) communicate ex parte with [a judge] during the proceeding unless authorized to do so by law or court order 1

2 Lawyers and Judges as friends on Facebook Ethical Considerations of Using Social Networking Sites by Adrienne Meiring, Indiana Court Times, December 31, A judge likewise should consider the appearance created when an attorney or someone else appearing in the judge s court is connected to the judge through networks like Facebook or MySpace. Although the relationship may not be close enough to require disqualification, an opposing party may have questions or concerns about the potential for inadvertent ex parte communications on the network about the case. To avoid issues, the judge may want to remove the attorney or party as a friend from his Facebook or MySpace list until the case is over. Lawyers and Judges as friends on Facebook Other states: Florida, California, Massachusetts, Oklahoma Judges may NOT be Facebook friends with lawyers who appear before them. Ohio, New York, South Carolina, Kentucky, Maryland, Tennessee Qualified Yes Judges may be Facebook friends with lawyers who appear before them, but may not discuss the case, and should be mindful of the Judicial Code of Ethics when participating in social media sites. Judges and litigants are OK, as long as judge believes he/she can be fair and impartial NY, Feb. 2013; also Texas (Youkers v. Texas, May 2013) Timing might be an issue? North Carolina Judge publically reprimanded for friending defendant s counsel during the proceedings and discussing the case on the attorney s page Lawyers and Judges as friends on Facebook Final Thoughts: Discipline seems to be focused on judges, not lawyers Advisory opinions encourage compliance with ethics rules, caution Consider the public nature of the information available on Facebook and other social networking sites 2

3 Online Commentary re: the Judiciary Rules of Professional Conduct Rule 8.2(a) - A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office Online Commentary re: the Judiciary Decisions In re Wilkins, 777 N.E.2d 714, (Ind. 2002) COA opinion was replete with misstatements of material facts, it misapplies controlling case law, and it does not even bother to discuss relevant cases that are directly on point. Clearly, such a decision should be reviewed by this Court.... Indeed, the Opinion is so factually and legally inaccurate that one is left to wonder whether the Court of Appeals was determined to find for Appellee Sports, Inc., and then said whatever was necessary to reach that conclusion (regardless of whether the facts or the law supported its decision). Violated Rule 8.2(a) because [Wilkins] offered no evidence to support his contentions Lawyers are completely free to criticize the decisions of judges. As licensed professions, they are not free to make recklessly false claims about a judge s integrity. 30 day suspension w/ automatic reinstatement Online Commentary re: the Judiciary Decisions In the Matter of: Thomas M. Dixon, 71S DI-196 (October 8, 2013) Dixon requested a change of judge based on judge s alleged conflict of interest with other party, Norte Dame University By its very nature, a motion for change of judge requires allegation of bias or prejudice Decision hinged on whether the statements made were made with reckless disregard for truth or falsity Commission decided Dixon s statements were within the confines of good faith professional advocacy Justice Rucker concurred in part and dissented in part, writing the comments in two of the statements should be sanctionable [Judge] did not feel duty bound to apply the rule because she was biased in favor of the abortuary. [Judge s ruling] demonstrates to me that she was willing to ignore the applicable legal standards in order to move the case in a direction that negatively affected [party s] legal rights. 3

4 Online Commentary re: the Judiciary California Asst. District Atty loses job for posting a veiled comment re: judge s grasp (or lack thereof) of the law Illinois Asst. Public Defender, in her blog, referred to judges as total asshole and Judge Clueless License suspended for 60 days in Illinois and Wisconsin Florida Fort Lauderdale attorney, in his blog, called judge an evil, unfair witch Public reprimand and $1,200 fine Online Commentary re: the Judiciary Caveats from Indiana Not comments re: the judiciary, but comments that suggest questionable, possibly criminal, behavior Deputy Atty General fired for posting on Twitter that WI should use live ammo on Right to Work protesters Johnson County Deputy Prosecutor resigned after it was discovered he sent an to WI governor suggesting to the governor: employ an associate who pretends to be sympathetic to the unions cause to physically attack you (or even use a firearm against you), you could discredit the unions. Paul Ogden brought before Indiana Disciplinary Commission for his comments re: Hendricks County judge In re Indiana Newspapers Inc., 963 N.E.2d 534 (Ind. Ct. App. 2012) Shield Law did not allow newspaper to refuse to conceal commenter s identity Online Commentary re: the Judiciary Final Thought YOU ARE NEVER TRULY ANONYMOUS ONLINE!! 4

5 Internet Privacy Concerns You Should Consider Judge Paul Mathias, Court of Appeal of Indiana 13 free? Pandora s Box in Reverse: Letting the Internet Destroy Your Privacy OR, Have you ever considered why it s What free means to you and to others who are important to you. 14 4/24/2013 Use the RDA or RDI Method of Privacy Protection Read: Privacy Policies and User Agreements The RPC; Distinguish: Between Private and Professional Use; and Assess (or Investigate): What you will disclose or represent, and to whom 15 5

6 Friends: Friend. Examples to Think About: Facebook Anyone, unless you restrict in Privacy Are reciprocal, so you show up as the Friend of anyone you Anything you post on a Friend s wall is information that Facebook collects and shares about you. If your Friend uploads your address, then Facebook knows and shares all of your contact information. So, if you use Facebook for your address book... 11/18/2013 Like: friend.. 4/24/2013 Examples to Think About: Facebook Item... is an easy way to let someone know that you enjoy it, without leaving a comment.. Leaves a trail, under the item, on your timeline and as a notification to your Can be removed only at the actual content or page. (Query: Why is it so much harder to Unlike than to Like?) Must go to Friend s Timeline to UnFriend 16 Like: Facebook Page, Advertisement or Off-Site You may be displayed on the Page you connected to, in advertisements about that Page or in social plugins next to the content you like. Examples to Think About: 17 You may see updates in your feeds and the feeds of your friends from Pages you like. You may also receive messages. Your connection to the page may also be shared with apps on the Facebook Platform. 18 6

7 Facebook Obtains Information about You From: You: Postings (including metadata), Usage Friends Non-Friends Mobile Devices. Web Habits: From, What s Open and To... our affiliates or our advertising partners, customers and other third parties /24/2013 Facebook Uses Information about You: to target ads... to make suggestions to you and other users on Facebook, such as: suggesting that your friend use our contact importer because you found friends using it, suggesting that another user add you as a friend because the user imported the same address as you did, or suggesting that your friend tag you in a picture they have uploaded with you in it /24/2013 Facebook Privacy Controls The small Lock in the top Menu Bar Privacy Shortcuts See More Settings (at bottom) Use a More Secure Web Browser and Plug-Ins; Macs and Safari or Firefox (More or Less) Effective Third-Party Facebook Privacy Protection Apps Include: Facebook Disconnect Privacyfix Secure.me 21 7

8 4/24/2013 LinkedIn is Easier, in a Way: Online networking, classified ads and headhunting for professionals. The main caveats are: Be careful about claiming specialties; do so only in accordance with RPC 7.4. Endorsements of your own Skills and Expertise are likely subject to RPC 7.1 and 7.2. Consider whether information you share with other members might amount to legal services. Still some privacy issues 22 4/24/2013 Examples to Think About: LinkedIn does not store unencrypted personally identifiable information in the cookies... [it sets and allows third parties to set in your browser.] Even if you close your account,... LinkedIn may retain certain data contributed by you... for legitimate business purposes, such as analysis of aggregated, non-personally identifiable data... LinkedIn may also retain and use your information if necessary to provide the Services to other Users. 23 Google Don t be evil. Everything is free because Google extracts all of the information you give them access to and sells it. Not only your information, but the information you have about other people, too. Now, involuntary ad shills. Evernote is the same Meitus Gelbert Rose LLP 24 8

9 Three Last Tips Always log out of any site you had to log into. Install third-party extensions in your browser of choice to discover and deny cookie placement. Ghostery Disconnect Delete cookies and clean caches Meitus Gelbert Rose LLP 25 Ethical Issues Related to Social Media John P. Higgins Staff Attorney Indiana Supreme Court Disciplinary Commission The opinions expressed herein are solely those of the author, and are not binding on nor necessarily representative of the Indiana Supreme Court Disciplinary Commission. Overview 1. Discovering Social Media 2. Advertising Issues 3. Confidentiality 4. Manifesting Bias or Prejudice on Social Media 9

10 Discovering Social Media Social media as an informal discovery tool. What parts of social media are you ethically allowed to discover? Purely public profiles, blogs, or public tweets are generally okay. What about private profiles or tweets? Can you friend someone to gain access to the private sections of their social media profile? Discovering Social Media If the person is represented by counsel, friending that person is off-limits. The friend request itself is a communication. The purpose of your request would be related to the representation. Thus, you ve probably run afoul of Ind. Prof. Cond. R Discovering Social Media What if the person is not represented by counsel? Can you create a fake profile to induce the person to accept your friend request? Clearly not. Ind. Prof. Cond. R. 4.1 and 8.4(c) Can you send the friend request using your real identity? Probably not. See Ind. Prof. Cond. R. 8.4(c) Can you friend someone through an agent? No. See Ind. Prof. Cond. R. 8.4(a). 10

11 Discovering Social Media Can you advise your client to shut down his or her social network account? Social media accounts could contain potential evidentiary value. A lawyer cannot advise clients to destroy or conceal materials having potential evidentiary value. See Ind. Prof. Cond. R Discovering Social Media If all else fails, formal discovery is still available. But the Stored Communications Act may prevent you from discovering the content of private social media messages without a valid search warrant. Advertising Issues Cannot be false or misleading. An advertisement can mislead by omitting facts. Prof. Cond. R No real-time solicitations (chat rooms, Skype). Prof. Cond. R

12 Advertising Issues Written solicitations must have Advertising Material at beginning and end. Prof. Cond. R. 7.3(c). With tweets, this means only 100 characters left for the actual message. Don t say you specialize in an area of law unless you have been certified as a specialist by an Independent Certifying Organization that has been accredited by CLE. Beware LinkedIn! Confidentiality Absent informed consent in writing, all information relating to the representation is confidential. Very broad concept. Lesson: Just don t talk about your clients on the internet. Bias or Prejudice Prof. Cond. R. 8.4(g) prohibits an attorney from manifesting bias and prejudice in a professional capacity. The term professional capacity is broad, and would probably apply to social media posts that aren t purely private. 12

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