Social Media and Ethics

Transcription

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 Erickson, Thorpe & Swainston, Ltd. 1

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 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 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 Erickson, Thorpe & Swainston, Ltd. 2

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 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 , (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 Aug. 30, 2010) (unpublished opinion) Trial court barred plaintiff s attorney from using his laptop to look up potential juror s using the courthouse's open WiFi Sought a new trial after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 Erickson, Thorpe & Swainston, Ltd. 3

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 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 Erickson, Thorpe & Swainston, Ltd. 4

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 Erickson, Thorpe & Swainston, Ltd. 5

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 Erickson, Thorpe & Swainston, Ltd. 6

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 wrongfuldeath trial Juror: Juror: Friend: Juror: Friend: Juror: Friend: Juror: Friend: Juror: Got picked for jury duty. Sworn to secrecy as to details of this case. Most importantly the 3:00 p.m. Cocktail hour is not observed! If he's cute and has a nice butt, he's innocent! Drunk and having a great food at our fav neighborhood hangout. I'm still amazed they allow jurors to nip from a flask all day. Starting day 8 of jury service. Remember nice ass = innocent! Civic duty fulfilled and justice served. Now, where's my cocktail???? Was it Miss Peacock in the library with the lead pipe? 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 Erickson, Thorpe & Swainston, Ltd. 7

8 Model jury instruction Model jury instruction Social media: the more you know Erickson, Thorpe & Swainston, Ltd. 8

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) Erickson, Thorpe & Swainston, Ltd. 9

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 PMP-VCF, 2012 WL (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 Erickson, Thorpe & Swainston, Ltd. 10

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 LinkedIn 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 Erickson, Thorpe & Swainston, Ltd. 11

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 Erickson, Thorpe & Swainston, Ltd. 12

13 Monster, what monster? Questions/Comments Rebecca Bruch, Esq. Charity F. Felts, Esq. Erickson, Thorpe & Swainston, Ltd. 99 W. Arroyo St. Reno, NV Erickson, Thorpe & Swainston, Ltd. 13