THE MAGAZINE OF THE AMERICAN INNS OF COURT

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1 The Bencher January/February 2013 THE MAGAZINE OF THE AMERICAN INNS OF COURT Ethics & Professionalism in the Modern Media Age

2 FROM THE PRESIDENT The Honorable Donald W. Lemons I began my law practice in the age of carbon paper and "white-out." Some younger lawyers today mistake the former for "carbon footprint" and the latter for a blizzard. And if you had a "cell number," it meant you were in prison! How the world has changed. Electronic document creation, storage and retrieval and even filing in courthouses have altered the professional landscape. Some have been left behind; others have adapted; all of us are challenged. Whoever thought you could have an office without paper? A trial with an ipad you must be mad. iphones, Droids, Facebook, Twitter, blogs, websites what could possibly be next? Judges and lawyers must deal with what is already here and what may be next, all in the context of familiar rules and principles that adjust to meet the challenge. On the one hand, a lawyer may be considered less competent without modern technological skills and ability to use social media. Could failure to adapt result in ethics complaints and even malpractice claims? On the other hand, could misuse of technology result in the same risks and even implicate criminal laws? Legal ethics encompasses the lowest level of acceptable conduct at the bar. It provides the floor below which a lawyer is subject to discipline. Often ethical rules are not morally intuitive they are just rules. Professionalism is aspirational in nature and encourages exemplary conduct. The rapid pace of technological change requires constant examination of the expectations of both ethical and professional behavior. Is it permissible to investigate social media sites to learn more about an adverse party, a witness or a juror? Are you violating a duty to your client if you don't? How far can you dig in cyber space before you are crossing the line? What methods may you use? May a lawyer or a firm "blog" about the law and their cases? Where are the boundaries of client confidentiality? When does the "blog" become advertising? And what has done to the profession? While communication has become much easier and faster, have we become less formal and careful? Has the invitation of the "send" button resulted in more intemperate communication that might not have been transmitted if time for reflection had intervened? And "reply to all" has been the downfall of careless communicators. In this issue of The Bencher, we find insightful guidance and commentary about where we are now and where we might be in the future. You might be reading these articles electronically. If so, take advantage of technology create an that forwards the article to your professional colleagues, hit "send" and keep the discussion going. u 2013 American Inns of Court Professionalism Awards Call for Nominations The American Inns of Court Professionalism Awards are presented on a federal circuit basis, to a lawyer whose life and practice display sterling character and unquestioned integrity, coupled with ongoing dedication to the highest standards of the legal profession and the rule of law. Inn members are encouraged to nominate outstanding legal professionals in their respective circuits. For more information on the nomination process, please visit and click Awards under the About Us tab or contact Cindy Dennis at or (571) u Deadlines for Nominations: March 8, th, 7th, and 11th circuits April 12, th and 10th circuits May 30, nd circuit Limited to a senior attorney 2 The Bencher January/February 2013

3 INN THE NEWS 2012 English Pegasus Scholars Visit United States The Gerald T. Bennett Cooperative Learning American Inn of Court T he American Inns of Court participates annually in an exchange program with the English Inns of Court called the Pegasus Scholarship Trust. The Pegasus Scholarship Trust, formed by the Right Honourable The Lord Goff in 1987, was established to provide young English barristers with an opportunity to spend six weeks abroad for the purpose of learning about a foreign legal system. The Pegasus Scholarship Trust also provides young lawyers from other countries with an opportunity to spend six weeks in London learning about the English legal system. This year, two English barristers participated in the exchange. William Young, of the Honourable Society of Lincoln s Inn works in all aspects of personal injury and Katherine Cook, also of the Honourable Society of Lincoln s Inn, works in matrimonial finance and is qualified as a family law mediator. The scholars program included visits to the Supreme Court of the United States, the Pentagon, Capitol Hill, Georgetown University Law Center, the U.S. District Court for the District of Columbia, the U.S. Courts of Appeals for the DC Circuit and the Federal Circuit, and state and local courts in Virginia, Maryland, and the District of Columbia. The scholars visited leading attorneys in criminal law, family law, civil, and commercial litigation. The scholars also enjoyed a trip to Philadelphia, Pennsylvania hosted by the Temple AIC. u The Gerald T. Bennett Cooperative Learning American Inn of Court, which was started in Gainesville, Florida in 2011, held a Champagne and Cupcake mixer at the University of Florida Levin College of Law on September 11, Dean Robert H. Jerry II, Levin Mabie and Levin Professor of Law, spoke about the value of the American Inns of Court and the importance of promoting professionalism as part of a good legal education. He was joined by the Honorable Toby S. Monaco, president of the Bennett Inn; Chester B. Chance, retired judge; and Katherine Mockler, a recent graduate of the law school; who spoke about the importance and impact of Inn participation. I N T H I S I S S U E Feature Articles The Tweet Smell of Success, or a Trip to the Disciplinary Board? Ethical Concerns in the Use of Social Media John G. Browning, Esq Law Firm Websites: An Ethical Minefield William R. Peterson, Esq. and Clark E. Smith, Esq Tech Savvy and Practice Ready: Social Media Guidance for Current and Future Legal Practitioners Christina M. Frohock, Esq Predatory Friending: The Ethics of Legal Investigation in a Virtual World Wendy L. Patrick, Esq Ethics What if the Umpire Makes a Bad Call? John P. Ratnaswamy, Esq Regular Features In the garden of The National Society of The Colonial Dames of America in Philadelphia, Pennsylvania, are from left to right, Judge Pamela Pryor Dembe, Judge Anne E. Lazarus, Katherine Cook, William Young, Judge Cynthia M. Rufe, and James R. Kahn, Esq. The Bencher January/February Inn the News...3 Profile in Professionalism...25 Program Spotlight...27 COVER PHOTO CREDITS: Front: istockphoto.com/chris Lemmens; Back: istockphoto.com/brian Larson. 3

4 INN THE NEWS The Burta Rhoads Raborn Family Law American Inn of Court The Burta Rhoads Raborn Family Law American Inn of Court in Houston, Texas, hosted a cocktail and hors d oeuvre reception for attendees of the State Bar of Texas Advanced Family Law Course held in Houston on August 7, The 1,379 attendees were invited to join the Raborn Inn for food, drink and live music at the close of the course s CLE presentations. Burta Rhoads Raborn Family Law AIC member Judge Meca Walker, new member Patrick Upton, and member Judge Diane M. Guariglia at a cocktail reception hosted by the Inn in Houston, Texas. The Advanced Family Law Course is an annual week-long CLE course held in one of the major cities of Texas, which was, this year, held in Houston. Approximately 250 people attended the reception, many of whom were Raborn Inn members, and many who were not. Some were visitors from other Inns, including the Annette Stewart American Inn of Court in Dallas, Texas, as well as individual lawyers who were interested in the American Inns of Court in general. The Inn plans to host its next event on December 12, 2012, in conjunction with the Houston Bar Association Family Law Section and Houston Bar Association Gulf Coast Chapter, which will be its annual Holiday Celebration. As an American Inn of Court, it is not only a goal, but also a pledge of the Raborn Inn to provide quality mentorship and fellowship among its members. Hosting a variety of social events throughout the year helps this Inn achieve its goal and ultimate purpose. u The Family Law American Inn of Court of Tampa presents contribution to Voices for Children Each year the Family Law American Inn of Court of Tampa selects its best pupilage group. After each monthly presentation by a pupilage group, Inn members evaluate each group s presentation based on several criteria. At the end of the Inn year, Pupilage Group 3 received the highest evaluation score. Each year the Family Law Inn of Tampa makes a charitable donation to a local organization serving children or families. The Inn allows the winning pupilage group to select the charity of their choice and, this year, Voices for Children was selected to be the recipient. Voices for Children seeks out volunteers in Hillsborough County, Florida, to serve as Guardians ad Litem to advocate in court for the best interests of children who have been abused or neglected by their parents. Voices for Children s objective is for no child to face the dependency court system without a Guardian ad Litem. Their goal is to provide Guardian ad Litem services for all children within the dependency court system in Hillsborough County, Florida. Members of the Family Law AIC of Tampa present a contribution to Voices for Children. Pictured are, from left to right, front row: Marian P. McCulloch, Esq.; Voices for Children president, Allison Raver; and Voices for Children vice president, Jeanette Sanderson. In the back row are Lawrence J. Hodz, Esq.; David A. Veenstra, Esq.; O. Kim Byrd, Esq.; Stann W. Givens, Esq.; and Phillip S. Wartenberg, Esq. At the first Inn meeting of the year, Pupilage Group 3, on behalf of the Family Law AIC of Tampa, presented $500 to Voices with Children president, Allison Raver, and vice president, Jeanette Sanderson. u 4 The Bencher January/February 2013

5 INN THE NEWS The John Belton O Neall American Inn of Court Edward W. Mullins, Jr., of counsel to Nelson Mullins Riley & Scarborough, has been awarded the Rhodes-McDonald Award presented by the John Belton O Neall American Inn of Court in Columbia, South Carolina. The award is presented annually to a member who models the conduct and values that the Inn upholds. Mullins has been an ambassador for the O Neall Inn throughout the United States with his service on the American Inns of Court Board of Trustees since He is also a leader in the University of South Carolina School of Law s Nelson Mullins Riley & Scarborough Center on Professionalism. The award is named for the late Jeter E. Rhodes, Jr. and Heyward E. McDonald, both prominent Columbia attorneys whose lives and contributions As president of the John Belton O Neall American Inn of Court, of Columbia, South Carolina, attorney Kirby D. Shealy, right, presents Edward W. Mullins, Jr. with the Inn s Rhodes-McDonald Award. to the legal profession were a testament to the mission of the American Inns of Court. u BOOK REVIEW Called to Justice: The Life of a Federal Trial Judge by Judge Warren K. Urbom Respect the law. Honor the law. But never worship the law. The law does not represent our highest standards. The law is the lowest common denominator, that is, a set of rules of minimum acceptable behavior, and you can do better than that. According to the foreword of Called to Justice: The Life of a Federal Trial Judge, the above statement was made during a presentation given to the lawyers, judges, and student members of the Robert Van Pelt American Inn of Court by one of its founders the Honorable Warren K. Urbom, Senior U.S. District Judge. Quite fitting, considering that the mission of American Inns of Court is to foster excellence in professionalism, ethics, civility and legal skills. And Called to Justice shows how Urbom, one of the most highly regarded federal trial judges in the country, epitomizes those ideals personally and professionally. Called to Justice is an introspective and insightful look at the triumphs and tragedies that molded Urbom s life and legal career. From attending a one-room schoolhouse in the rural Midwest to 40 years of service on the federal bench, Judge Urbom is known for his innovation, common sense approach, and keen intellect. Though most frequently associated with the Wounded Knee trials he presided over in the mid-70 s, Urbom has issued rulings in cases involving hot-button topics like capital punishment, abortion, and alternative sentencing. His rulings have had a profound effect not only on those directly involved, but also on the ensuing jurisprudence. Called to Justice is more than just a recitation of significant cases, however. It provides Urbom s reflections and commentary on those cases, their causes, and his role in resolving them. Unlike other memoirs, Called to Justice does not shy away from painful and deeply personal events. Urbom tells how as a three-year-old, he lost an eye to an errant BB from a gun wielded by his older brother. He describes meeting the family of the motorcyclist he killed in an automobile accident. He tells of his wife s courageous, but unsuccessful battle against cancer. He closes by unashamedly acknowledging the toll time has taken on him physically and mentally as he reflects upon the diminution of his judicial service and the end of his life-long legal career. Called to Justice should be on every legal professional s must read list. It is rife with examples of a life spent pursuing the highest standards in professionalism, ethics, civility, and legal skills. And achieving them. Called to justice, indeed. Steven J. Schmidt, Esquire Barrister, Robert Van Pelt AIC Lincoln, Nebraska The Bencher January/February

6 INN THE NEWS The Salmon P. Chase American Inn of Court At the American Inns of Court Celebration are, from left to right, BG Malinda E. Dunn, executive director, American Inns of Court; Judge Anthony W. Frohlich and Judge Joy A. Moore of the Salmon P. Chase AIC, Covington, Kentucky, an Achieving Excellence Platinum Inn; and Justice Donald W. Lemons, president, American Inns of Court. At the October meeting of the Salmon P. Chase American Inn of Court, in Covington, Kentucky, immediate past president, Judge Anthony W. Frohlich, discussed his attendance at the American Inns of Court Celebration of Excellence in Washington, D.C. Frohlich, along with his predecessor, Judge Joy A. Moore, received the Chase Inn s Achieving Excellence Platinum Level certificate. According to Frohlich, a good time was had by all. Federal Magistrate Judge Candace Smith and Pupilage Group Three then presented the evening s program, Trial Mistakes and Lessons Learned. The students provided written materials regarding pitfalls that can occur during voir dire and trial, and five of the Masters regaled the members with personal stories of their own and other s missteps. Notably, Judge William Bertelsman told a story about a demonstration involving Mace that literally left the entire courtroom in tears. The members at the meeting were also in tears, albeit for a different reason. Masters Jeff Mando, Kate Molloy, Andy Busald, and Judge Patricia Summe provided equally amusing and insightful tales from the bar. u PHOTO: KevinKennedy.com 2012 Temple Bar Scholars Introduced to Legal London The 2012 Temple Bar Scholars began a month-long scholarship in London, England on October 1. This year s scholars are Benjamin J. Beaton, Ishan K. Bhabha, Candice Chiu, Christopher DiPompeo, and Michelle S. Stratton. During their first week, the scholars visited each of the four English Inns in London, toured the facilities, met with the Inns leadership, and had lunch in the dining halls. The scholars met with several of Great Britain s legal dignitaries, including the Lord Chief Justice of England and Wales, Lord Judge; the Master of the Rolls, Lord Dyson; and the President of the Supreme Court of the United Kingdom, Lord Neuberger of Abbotsbury. They also met with Lord Woolf of Barnes at the House of Lords, who served previously as both Lord Chief Justice of England and Wales and Master of the Rolls. The scholars attended the ceremonial opening of the legal year at Westminster Abbey and met with officers of the Commercial Bar Association, the General Council of the Bar, and Law Society. Other activities during the week included tours of the House of Parliament, Old Bailey, and the Supreme Court of the United Kingdom. The scholars also attended a reception held in their honor at the Old Hall in Lincoln s Inn. The scholars remained in London through October 26, 2012, where they spent two weeks in mini pupillage in barristers chambers. Their placement in chambers was arranged by the Commercial Bar Association. Most of the final week was spent in the Supreme Court of the United Kingdom marshaling for the justices. The scholars also got a glimpse of the solicitors side of the profession by spending a day at a leading solicitor s firm. The scholars placements were arranged by the Law Society, which regulates solicitor s practices. The Temple Bar Scholarships program is partially underwritten by Thomson Reuters and the Commercial Bar Association. u The 2012 Temple Bar Scholars at the Supreme Court of the United Kingdom. Justices of the Supreme Court of the United Kingdom standing, from left to right, are The Right Hon. The Lord Kerr of Tonaghmore; The Right Hon. The Lord Walker of Gestingthorpe; The Right Hon. Lord Wilson of Culworth; The Right Hon. The Lord Hope of Craighead, KT; and The Right Hon. Lord Reed Temple Bar Scholars seated, from left to right, are Benjamin J. Beaton, Candice Chiu, Ishan K. Bhabha, Michelle S. Stratton, and Christopher DiPompeo. 6 The Bencher January/February 2013

7 I NN TH E NEWS The William S. Sessions American Inn of Court T he William S. Sessions American Inn of Court in San Antonio, Texas, was represented at the 60th Annual San Antonio Red Mass marking the beginning of the judicial and academic law year on October 25, 2012 in San Fernando Cathedral. The tradition of Red Mass began in Europe in 1245 in Europe to mark the beginning of each judicial session. St. Mary s University School of Law and the Catholic Lawyers Guild of San Antonio revived the tradition 60 years ago and continue to organize the annual event. Donald R. Philbin, Esquire, right, president of the Sessions Inn, carried the Inn s banner in the procession and other Inn members, including San Antonio Bar Association President Andy Kerr, also attended. It brought back fond memories for Philbin of attending the same event opening the British legal year in Westminster Abbey in u 2012 American Inns of Court 5th Circuit Leadership Summit Held in Houston Attendees enjoyed receptions hosted by the Burta Rhoads Raborn Family Law AIC and the Garland R. Walker AIC. The American Inns of Court is grateful for the support and in-kind contributions of all of our gracious hosts. u PHOTO: Courtesy of Jeff Slocumb T he 2012 American Inns of Court 5th Circuit Leadership Summit, held on September 27, 2012, in Houston, Texas, was a huge success with more than 30 Inn leaders from 16 Inns attending. Participating Inns included the Hon. Arthur L. Moller/ David B. Foltz Jr. AIC; Eldon B. Mahon AIC; Austin Intellectual Property AIC; Burta Rhoads Raborn Family Law AIC; Garland R. Walker AIC; American Inn of Court of Acadiana; Michelle F. Mehaffy AIC; Tulane Law School AIC; Patrick E. Higginbotham AIC; Dean Henry George McMahon AIC; William S. Sessions AIC; Thomas More Loyola Law School AIC; Lloyd Lochridge AIC; Honorable Barbara M.G. Lynn AIC; Houston Intellectual Property AIC; and Robert W. Calvert AIC. Inn leaders, national volunteers, and staff all shared Inn best practices and new ideas to help advance the mission of the American Inns of Court. Inn members in the photo above, who attended the American Inns of Court 5th Circuit Leadership Summit, are seated in the front row, from left to right, Mitchell E. Ayer, Esq.; Hon. Lee Gabriel; Hon. Lee Yeakel; Hon. Karen K. Brown; Hon. Conrad L. Moren; Hon. William J. Boyce; and Richard A. Schwartz, Esq. Standing in the middle row, from left to right are Lisa D. Hanchey, Esq.; Darla Thomas; Stuart C Yoes, Esq.; Elizabeth S. Pagel, Esq.; Virginia N. Roddy, Esq.; June Mann, Esq.; Sherri T. Alexander, Esq.; Melissa Valdez, Esq.; Jennifer A. Hasley, Esq.; Dale R. Baringer, Esq.; Kris Thomas, Esq.; and J. James Cooper. Standing in the back row, from left to right, are Donald R. Philbin, Esq.; Bruce J. Ruzinsky, Esq.; Joshua O. Hess, Esq.; Sam M. Yates III, Esq.; Adam B. Zuckerman, Esq.; Theresa Mobley, Esq.; Dirk M. Jordan, Esq.; Charles A. Deacon, Esq.; Dabney D. Bassel, Esq.; Bill G. Schuurman, Esq.; Hilda C. Galvan, Esq.; and William L. LaFuze, Esq. The Bencher January/February

8 INN THE N EWS 2012 American Inns of Court Celebration of Excellence T he 2012 American Inns of Court Celebration of Excellence was held October 20, 2012 at the Supreme Court of the United States. The annual event featured the presentation of the Lewis F. Powell Award for Professionalism and Ethics, the A. Sherman Christensen Award, the Sandra Day O Connor Award for Professional Service, and the Warren E. Burger Prize. The recipients of the 2012 American Inns of Court Professionalism Awards and Inns that attained platinum level in the Achieving Excellence program were also recognized. u The 2012 American and English Pegasus scholars, from left to right, are Katherine Emma Cook of the Honourable Society of Lincoln s Inn, London; William Young also of Lincoln s Inn; John M. DeStefano III, of the Lorna E. Lockwood AIC, Phoenix, AZ; and Becky Bye of the Judge William E. Doyle AIC, Golden, CO. Dean Deanell Reece Tacha, left, receives the 2012 A. Sherman Christensen Award, presented by Judge Patrick E. Higginbotham. Derek A. Webb, Esq., left, receives the 2012 Warren E. Burger Prize, presented by Kannon K. Shanmugam, Esq. The 2012 Professionalism Awards recipients are, from left to right, Russell K. Scott, Esq., 7th Circuit; John T. Ballantine, Esq., 6th Circuit; Judge Myron H. Bright, 8th Circuit; David Margolis, Esq., DC Circuit; Barbara D. Underwood, Esq., 2nd Circuit; Judge Timothy B. Dyk, Federal Circuit; and Judge Judith L. Haller, 9th Circuit. 8 Justice Donald W. Lemons, left, president, American Inns of Court; Anthony Giaccio, Esq., center, Hon. William C. Conner AIC, New York, NY, Achieving Excellence Platinum Inn; and BG Malinda E. Dunn, executive director, American Inns of Court. The Bencher January/February 2013

9 I NN TH E NEWS Past and present presidents of the American Inns of Court are seated: Justice Donald W. Lemons, Professor Sherman L. Cohn; standing: Dean Emeritus Robert K. Walsh, Dean Deanell Reece Tacha, Judge Patrick E. Higginbotham, and Randy J. Holland. Judge Lee H. Rosenthal, left, receives the 2012 Lewis F. Powell, Jr., Award for Professionalism and Ethics, presented by Chief Judge Carl E. Stewart. In the photo above are, from left to right, Justice Donald W. Lemons, president, American Inns of Court; BG Malinda E. Dunn, executive director, American Inns of Court; Judge Karen K. Cole, immediate past president, Florida Family Law AIC, Jacksonville, FL, Achieving Excellence Platinum Inn; and James T. Keenan, Esq., Achieving Excellence Master, Florida Family Law AIC. PHOTOS: KevinKennedy.com Omar J. Alaniz, Esq., left, receives the 2012 Sandra Day O Connor Award for Professional Service, presented by Michael A. McConnell, Esq. Justice Donald W. Lemons, left, president, American Inns of Court; Lorena C. Van Assche, Esq., center, secretary, Sandra Day O Connor AIC, Phoenix, AZ, Achieving Excellence Platinum Inn; and Patrick A. Clisham, Esq.,right, treasurer, Arizona Bankruptcy AIC, Phoenix, AZ. Justice Donald W. Lemons, left, president, American Inns of Court; David B. Karp, Esq., center, past president, Leander J. Foley, Jr., Matrimonial AIC, Milwaukee, WI, Achieving Excellence Platinum Inn; Donna L. Karp; and BG Malinda E. Dunn, executive director, American Inns of Court. The Bencher January/February

10 2013 The Warren E. Burger Prize You are invited to participate in the 2013 American Inns of Court Warren E. Burger Prize writing competition. To apply, please submit an original, unpublished essay of 10,000 25,000 words on a topic of your choice addressing the issues of excellence in legal skills, civility, ethics, and professionalism. The author of the winning essay will receive a cash prize of $5,000 and the essay will be published in the South Carolina Law Review. The 2013 Warren E. Burger Prize will be presented as part of the 2013 American Inns of Court Celebration of Excellence at the Supreme Court of the United States. For more information, please contact Cindy Dennis at or (800) ext Submission Deadline: JULY 15, The Bencher January/February 2013

11 ETHICS COLUMN John P. Ratnaswamy, Esquire What If the Umpire Makes a Bad Call? Sometimes umpires and referees (and not just replacements) make poor calls. Sometimes they stick with those calls even after discussing them as a group or watching re-plays as part of a review process. Seldom have I heard, however, that anyone believes a player or coach who is the beneficiary of a bad call, at least at the professional level, should volunteer information that would lead to changing or over-turning that call. Now, what if the umpire is not an umpire, but is a judge, and you are the lawyer whose client might be about to receive, or has received, a bad call in their favor. Can you just stay silent on the sidelines? The answer often is yes, but sometimes it is no, and sometimes the lawyer s duty is to quit the team and possibly to take action on the way to cleaning out their locker. American Bar Association Model Rule of Professional Conduct 3.3, Candor Toward the Tribunal, sets forth a number of circumstances in which a lawyer must make disclosures to a tribunal regarding matters of fact and law and/or withdraw or seek to withdraw. Model Rule 3.3(a) addresses false statements of fact and law by the lawyer and evidence offered by the lawyer, the lawyer s client, or a witness called by the lawyer: (a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or (3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false. Model Rule 3.3(b) goes even farther, in the sense that it applies not only to conduct by the lawyer and their client or witness, but also to conduct by a person : (b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. What constitutes reasonable remedial measures with respect to Model Rule 3.3(a)(3) and (b) can be complicated, and thus is addressed further by Comments [10] and [11], but for the most part they do not allow the lawyer to do nothing, even if they seek withdrawal. Do the Model Rule 3.3(a) and (b) duties apply in some circumstances even after the umpire has made their call? Yes. Rule 3.3(c) states that: The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6 (the main rule on duties of confidentiality to current clients). Comment [12] goes on to state in part that: A proceeding has concluded within the meaning of this Rule when a final judgment in the proceeding has been affirmed on appeal or the time for review has passed. 1 So, if your jurisdiction follows the principles of Model Rule 3.3, sometimes you re going to have to give the referee information that may mean she will take back that touchdown. u 1 Model Rule 3.3(d) covers another special circumstance: In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse. John Ratnaswamy is a partner in the Chicago law firm of Rooney Rippie & Ratnaswamy LLP. He also serves as an Adjunct Professor of Legal Ethics at the Northwestern University School of Law. John is a former member of the American Bar Association s Standing Committee on Ethics and Professional Responsibility, and is the Chair of the ABA General Practice Solo and Small Firm Division s Committee on Ethics and Professional Responsibility. John also is a member of the Hearing Board of the Illinois Attorney Registration & Disciplinary Commission. This column should not be understood to represent the views of any of those entities or John s or the firm s current or former clients. The Bencher January/February

12 The Tweet Smell of Success, or a Trip to the Disciplinary Board? Ethical Concerns in the Use of Social Media By John G. Browning, Esquire PHOTO CREDIT: istockphoto.com/chris Lemmens Social networking platforms like Facebook, LinkedIn, and Twitter have fundamentally changed the way people communicate and share information. Facebook has more than one billion users and Twitter has gone from processing 5,000 tweets a day in 2007 to over 340 million a day just five years later. Mirroring society, the legal profession s embrace of social media has evolved from the digital equivalent of a perfunctory handshake to the full-on bear hug of a long-lost friend. According to the 2012 ABA Legal Technology Survey Report, 88% of the reporting law firms report being on LinkedIn, while 55% are on Facebook. While most lawyers report using social media tools for career development and networking (72%), they are also utilizing them for case investigation (44%) and client development (42%). But are lawyers using social media in an ethical, responsible fashion, or are they risking a malpractice suit or a trip to the disciplinary board for misusing social media? A number of lawyers have already found themselves in ethical hot water for their online statements or conduct. In July 2012, a former prosecutor was charged with making a felony threat after he allegedly posted messages on Facebook threatening bodily injury to his former employer. That same month, it was discovered that an assistant district attorney had a Facebook page displaying inappropriate and offensive photos of himself. In February 2012, the South Carolina Supreme Court publicly reprimanded a 2008 law school graduate for exaggerating his experience and making misleading statements about his legal skills on sites like LinkedIn. In February 2011, a deputy attorney general was fired from his job after sending offensive tweets. In February 2012, an ethics complaint was filed against a criminal defense attorney for allegedly posting on YouTube a discovery video of an undercover drug buy in an attempt to sway public opinion. In May 2010, an assistant public defender was disciplined for disclosing client confidences on a blog she maintained, where she frequently referred to clients by their first names, nicknames, or jail identification numbers. She described in 12 The Bencher January/February 2013

13 sometimes graphic detail the clients cases, testimony, and other embarrassing and potentially damaging information. In Texas, a county prosecutor pleaded guilty to contempt of court for discussing a pending felony murder trial on Facebook, while in California a prominent commercial litigator had to explain himself in court after he tweeted about a case and linked to documents that the court had placed under seal. Clearly, the ease of use and the sheer pervasiveness of social media can lead to lawyers letting their guard down about such communications and forgetting that the same rules of conduct apply in cyberspace, the same as they would via more traditional avenues of communication. So just what are the biggest areas of concern for lawyers when it comes to the ethical use of social media? The first runs counter to one possible reaction to cautionary tales like those above avoidance. One simply cannot stick one s head in the sand and hope to avoid such problems by avoiding social media. Recently, the ABA Ethics 20/20 Commission proposed, and the ABA accepted, certain changes to the Model Rules of Professional Conduct, in order to address the impact of technology and globalization on the legal profession. One of these changes updates Rule 1.1 the duty to provide competent representation and Comment 6 to that Rule. Providing competent representation to clients now not only requires that one stay abreast of changes in the law of one s practice area, but also obligates lawyers to remain current on the benefits and risks associated with technology as well. This revision reflects the realities of the modern practice environment, particularly regarding social media. In an age when locating and using content from social networking sites is playing an increasingly important role, (a 2010 study revealed that 81% of lawyer respondents had used social media evidence in their cases) is a lawyer who is not familiar with the use of social media truly providing competent representation? The revision to Rule 1.1 also reflects a growing trend among courts throughout the country to hold lawyers professionally accountable when it comes to using such online resources. For example, in Griffin v. Maryland, a Maryland appellate court quoted approvingly that as a matter of professional competence lawyers should be investigating social media avenues in their cases. In Canedy v. State, a California appellate court held that a lawyer s failure to locate a sexual abuse victim s recantation on her social media profile could constitute ineffective assistance of counsel. Meanwhile, in Johnson v. McCullough, the 2010 Missouri Supreme Court imposed an affirmative duty on attorneys to make online investigation a key part of their jury selection process (i)n light of advances in technology allowing greater access to information. Another significant area of ethical concern for lawyers using social media involves the gathering of information about a party or witness. While there is generally no ethical issue viewing the publically available portion of an individual s social networking profile, what about those Facebook pages with privacy restrictions, allowing only friends to view such non-public content? May an attorney, or someone working for that attorney, try to become someone s friend in order to gain such access? If the person is a represented party, the answer is clearly no. Under Rule 4.2 of the Model Rules of Professional Conduct, a lawyer should not communicate or cause another person to communicate with a person represented by counsel without the prior consent of that party s attorney. In May 2011, the San Diego County Bar Association s Legal Ethics Committee considered this Rule s application in the digital age, when a lawyer representing an allegedly wrongfully discharged employee against the former employer presented an interesting situation. Although the lawyer knew that the company had appeared and was represented by counsel, the plaintiff s lawyer had sent friend requests to two of the defendant company s employees; his client had identified both as dissatisfied with their employer and likely to have made disparaging comments about it on their Facebook pages. The ethics committee ruled that the lawyer s request violated both the rule against contacting a represented party and the attorney s duty not to deceive others, holding that lawyers seeking access to a represented party on social media sites must either seek such information through formal discovery channels or contact the party s attorney first seeking consent to such a communication. This issue potential deception or misrepresentation to third parties is at the heart of several other ethics opinions and at least one lawsuit. In separate opinions, the Philadelphia Bar Association Ethics Committee (March 2009), the New York City Bar Association Committee on Professional Ethics (September 2010), and the New York State Clearly, the ease of use and the sheer pervasiveness of social media can lead to lawyers letting their guard down about such communications and forgetting that the same rules of conduct apply in cyberspace, the same as they would via more traditional avenues of communication. Continued on the next page. The Bencher January/February

14 The Tweet Smell of Success continued from page 13. Attorneys would do well to heed some of the same advice they dispense to clients: treat social media as simply another form of communication subject to the same ethical constraints as the more traditional modes, and adopt a social media policy that will guide both lawyers and non-lawyer employees in the responsible use of social networking. Bar Association Committee on Professional Ethics (September 2010) all held that a lawyer or someone working under that lawyer s supervision like a paralegal could not friend a witness under false pretenses. Pointing to Rule 4.1 prohibiting knowingly making a false statement of fact to a third person, as well as Rule 8.4 banning conduct involving dishonesty, fraud, deception, or misrepresentation, each of the committees found that trying to gain access to someone s social media page by friending her or having a third party friend her at the lawyer s behest would be unethical. As the Philadelphia Bar observed, not telling the witness of the lawyer s role or his paralegal/investigator s affiliation with the lawyer omits a highly material fact, namely that the third party who asks to be allowed access to the witness pages is doing so only because he or she is intent on obtaining information, and sharing it with a lawyer for use in a lawsuit to impeach the testimony of the witness. The New York City Bar opinion noted that the increased use of social media sites by lawyers, with deception even easier in the virtual world than in person, makes this an issue of heightened concern in the age of Facebook and Twitter. Such fears have already led to legal action against one law firm, its investigator, and its insurance company client. In a state court lawsuit filed in Cleveland, Ohio in May 2012, the plaintiff maintains that an Ohio insurance defense firm hired an investigator to gain access to the privacy-restricted Facebook page of a 12 year-old girl who was the plaintiff in a dog bite case. According to the plaintiff s complaint, the investigator posed as one of the girl s Facebook friends, enabling him to view her private information and access over 1, 000 posted messages and 221 photos between the minor plaintiff and her friends. The lawsuit asserts claims of invasion of privacy as well as violation of wiretapping statutes. A final area rife with ethical risks for lawyers involves the preservation of evidence. No one wants to discover embarrassing photos or comments on a client s Facebook page that can adversely impact the case. But lawyers can t instruct the client to remove the damaging content or to delete his Facebook account. Model Rule 3.4 prohibits a lawyer from unlawfully altering or destroying evidence and assisting others in doing so. A lawyer s ethical duty to preserve electronically stored information encompasses social networking profiles. In yet another cautionary tale for the digital age, plaintiff s counsel in a recent Virginia wrongful death case, Lester v. Allied Concrete, directed his paralegal to instruct the client to delete his Facebook page. The client, the surviving widower of a young woman killed in a collision with one of the defendant s cement trucks, had Facebook photos that depicted him looking like anything but a grieving husband. Plaintiff s counsel also represented to the defense attorneys during discovery that his client did not have a Facebook account. After a $10.6 million verdict for the plaintiff, the defense lawyers sought a new trial based on spoliation of evidence. The court slashed the verdict in half and assessed sanctions of $722,000 against the plaintiff and his attorney for their extensive pattern of deceptive and obstructionist conduct. As disturbing as the spoliation itself is, it is equally concerning that the conduct did not occur at the hands of an inexperienced or marginal practitioner. The attorney, who has since resigned from the practice of law, was a partner at the largest plaintiffs personal injury firm in Virginia and was a past president of the Virginia Trial Lawyers Association. Even putting aside the ethical dilemmas raised by the use of social media in marketing one s law firm, clearly the use of social networking in the actual practice of law is simultaneously both a vital weapon in a lawyer s arsenal and a potential ethical minefield. Attorneys run the risk of breaching their duty to provide competent representation to clients if they ignore seemingly ubiquitous social networking platforms like Facebook and Twitter and the utility they offer. Yet at the same time, the misuse of social media in managing client communications, investigating and fact-gathering, and preserving evidence present serious professional responsibility issues. Because of this, attorneys would do well to heed some of the same advice they dispense to clients: treat social media as simply another form of communication subject to the same ethical constraints as the more traditional modes, and adopt a social media policy that will guide both lawyers and non-lawyer employees in the responsible use of social networking. u John G. Browning, Esquire, is a partner in the Dallas office of Lewis Brisbois Bisgaard & Smith, and a Master in the William Mac Taylor Inn of Court. He is the author of The Lawyer s Guide to Social Networking: Understanding Social Media s Impact on the Law, as well as two forthcoming books on social media and the law. He also teaches courses on social media and the law at SMU Dedman School of Law and Texas Wesleyan University School of Law. 14 The Bencher January/February 2013

15 PHOTO CREDIT: istockphoto.com/nadla Law Firm Websites: An Ethical Minefield By William R. Peterson, Esquire and Clark E. Smith, Esquire I n today s world, law firms are expected to have websites. Even more than the office, the website is the public face of the law firm, providing information and an introduction to clients, colleagues, and even new employees. Easy to modify and with nearly endless reach, websites are a powerful and effective tool for lawyers. But the advantages of a website bring risks as well. Where a firm might spend significant time pouring over a print advertisement, changes to websites can be made far more easily and far more thoughtlessly. This article explores some of the ethical issues that lawyers should consider when building a website. Choice of Law When researching the rules that govern the website, the first question that must be answered is: What rules apply? By its nature, a website is a global portal, potentially exposing a firm to the sometimes-conflicting regulations of 50 different states. These regulations can be onerous. Texas, for example, requires a lawyer to file a copy of a website with the Advertising Review Committee no later than its first posting on the internet. Tex. Discip. R. Prof l Conduct 7.07(c). For law firms with lawyers licensed in only a single state, that state s regulations should govern. The main concern here is making certain that the website does not constitute the unauthorized practice of law in other jurisdictions. To avoid this, the website should make clear where the attorneys are licensed to practice law; where the firm s offices are located; where its attorneys practice; and which jurisdictions the attorneys will practice in. The website should not suggest that the lawyer is offering to provide legal services in a jurisdiction in which the lawyer is not admitted to practice. See Model Rules of Prof l Conduct R. 8.5(a). The danger multiplies when lawyers are licensed in more than one state or when a law firm has offices in multiple states. The Model Rules of Professional Conduct suggest applying the rules of the jurisdiction in which the predominant effect of the conduct will occur, but not every state follows this approach, and lawyers or law firms offering legal services in multiple The Bencher January/February Continued on the next page. 15

16 Law Firm Websites continued from page 15. A lawyer must take special care when crafting a website disclaimer alongside language that invites the website visitor to submit specific and personal information mixed messaging can lead to a reasonable expectation of confidentiality. jurisdictions may have their websites subject to the rules of multiple states. Firms in this situation should examine the specific rules for each of the states in which they offer to provide legal services. Advertisement As part of advertising a practice to prospective clients, law firms may want to include information on representative clients and cases. As with all advertising, lawyers should be cognizant of their continuing duties to clients. Even when the representation of the client is public knowledge, lawyers should request the client s approval for any mention of the client or matter on the website. See Model Rules of Prof l Conduct R. 1.6 (limiting disclosure of information relating to the representation of a client ); ABA Comm. on Ethics & Prof l Responsibility, Formal Op (2010). ( Specific information that identifies current or former clients or the scope of their matters also may be disclosed, as long as the clients or former clients give informed consent ). Many states have disciplinary rules specifically regulating what lawyers can say about past matters, including accurate reporting about verdicts and settlements. Generally, most states prohibit creating unjustified expectations in future clients, but the details of what constitutes unjustified expectations will vary from state to state. Lawyers should consult the rules and ethics opinions of their state before including information on their websites about past verdicts. Blogging and Legal Advice An increasingly common way for lawyers to advertise their expertise is by discussing legal topics on their website. In addition to attracting clients, this is a valuable service for the community at large Google can be a very productive starting point for research into a new area of the law. In this sense, the website law blog is the modern incarnation of a lawyer s public service: Lawyers have long offered legal information to the public in a variety of ways, such as by writing books or articles, giving talks to groups, or staffing legal hotlines. ABA Comm. on Ethics & Prof l Responsibility, Formal Op But in discussing legal issues on a website, lawyers should be aware of their broad public audience. To avoid misleading the public, the jurisdiction in which the legal information applies should be noted on the website. Lawyers should make sure that the information is correct and accurate. Blogs containing archived posts should be updated to reflect current cases and law, or at least include a disclaimer that the information may no longer be accurate. Be careful to avoid crossing the line between providing legal information general information about the law and giving legal advice by applying the law to individual circumstances. Applying the law to hypothetical facts is acceptable, but responding to questions from readers may constitute legal advice. Any website providing legal information should be sure to warn that the information is general and is neither a substitute for legal advice nor for retaining a lawyer. Potential Client Relationships Websites simplify the process for clients learning about and contacting the law firm. What concerns should a firm have regarding Web generated contacts from prospective clients? Although the rules vary by state, a lawyer is ethically bound to not divulge or use any information gleaned from a prospective client who consults with the lawyer about a prospective attorney-client relationship. Web inquiries could trigger application of ethical rules regarding potential clients and confidentiality. Rule 1.18 of the Model Rules of Professional Conduct protects the confidentiality of communications with prospective clients. The rule defines a prospective client as one who discusses with a lawyer the possibility of forming a client-lawyer relationship. A recent ethics opinion by the ABA discusses the rule s application to website visitors, suggesting that no discussion takes place unless the law firm responds to an inquiry. ABA Comm. on Ethics & Prof l Responsibility, Formal Op But what if the website specifically invites inquiries from prospective clients? We have all seen the billboard asking Got Mesothelioma? followed by a firm s phone number. Does a firm s website that solicits information from its visitors trigger Rule 1.18 s application? The ABA opinion suggests that the answer is yes requesting information can create a reasonable expectation that the lawyer is inviting a prospective client to create a formal relationship. How can firms effectively warn their website visitors about the limitations of an online consultation? What language should a disclaimer include? There is no simple formula here, but considered in context, the warning should be clear and readable, and contain a simple meaning that can be understood by a reasonably prudent viewer. If the website contains foreignlanguage content, so too should the disclaimer. A lawyer must take special care when crafting a 16 The Bencher January/February 2013

17 website disclaimer alongside language that invites the website visitor to submit specific and personal information mixed messaging can lead to a reasonable expectation of confidentiality. As with all of these issues, particular state rules will likely provide more detailed guidance. Recruitment A law firm website also assists with attorney recruitment, serving as the initial introduction to the law firm for many potential hires. The obligation to provide truthful information to prospective hires may not rise to the same level as the legal duties that attach to potential client relationships, but nevertheless, the website should not mislead potential hires. Equal Employment Opportunity Commission rules forbid a law firm from soliciting a job opening on its website that demonstrates preference for job applicants of a particular race, age, or gender. Even well-intended job descriptions We are looking for young and hungry litigators! can accidentally give the impression that that the firm is not welcoming to candidates in protected classes. The best practice is for the firm to expressly state on the website that all applicants are considered on an equal footing, regardless of race, age, or gender. Other states may create additional protected categories, and a firm s website should reflect its compliance with state hiring laws and the ethical responsibilities of keeping our profession open to everyone. Conclusion Websites are a powerful tool for lawyers to communicate with the public, and in today s world, are practically a necessity. Through the Internet, lawyers can reach new clients, advertise their skills and experience, and introduce themselves to potential employees. In taking advantage of these opportunities, lawyers should remember that advertising rules apply to websites and ensure that they comply with the high ethical standards of the profession. u William R. Peterson, Esquire, is an associate at Beck, Redden & Secrest in Houston, Texas and a 2011 Temple Bar Scholar. Clark E. Smith, Esquire, is an associate at Seyfarth Shaw, also in Houston. Both are Barrister members of the Garland R. Walker AIC. We are Social. Join the Conversation! #innsofcourt AmericanInnsofCourt The Bencher January/February

18 PHOTO CREDIT: istockphoto.com/erikbkhalitov Tech Savvy and Practice Ready: Social Media Guidance for Current and Future Legal Practitioners By Christina M. Frohock, Esquire One of my earliest memories from law practice involved a crude . The was so crude that it is unprintable in this or any other respectable publication. In the fall of 2000, I was a litigation associate in New York City, fresh out of law school, awaiting my bar exam results, and eager to practice law (without knowing what that meant in day-to-day details). A partner sat me down with a cautionary tale. He had just returned from a deposition, during which opposing counsel had introduced an and asked the deponent to explain certain initials. He resisted, but finally revealed the obscenity behind the initials. That obscenity intended as a joke for a few, innercircle recipients is forever enshrined in my memory and the public record. The partner nodded at me. Tell your clients, he said, that whatever they put in an , they should be comfortable seeing on the front page of the New York Times. It was wise advice, conveying the truth that electronic communications might feel private and off-the-cuff but may become public and scrutinized. As an attorney for 10 years, I gave this advice to my clients. I also kept the words in mind for my own use of electronic communications. Now, on the faculty of the University of Miami School of Law, I teach my students to exercise similar caution. This advice benefits everyone because, in the modern legal age, legal practice and technology are intertwined. Practice readiness requires tech awareness. Judges, lawyers, and clients who are already practice ready must become tech savvy. Law students who are already tech savvy must become practice ready. 18 The Bencher January/February 2013

19 Current Participants in the Legal System: Becoming Tech Savvy The partner s words were an early glimpse into the digital age and the rise of social media in the law. Indeed, the electronic universe has become so flooded that s seem quaint. Make room for Facebook posts, MySpace updates, LinkedIn notices, iphone texts, Instagram photos, internet chat rooms, YouTube videos, blogs, podcasts, BBMs, and tweets. From the courtroom to the boardroom to the living room, we are all inundated with social media, and we are all at risk. Cautionary tales of social media are ubiquitous. An appellate court in Florida recently found grounds to disqualify a trial judge who was Facebook friends with the case prosecutor. Domville v. State, No. 4D12-556, 2012 WL , at *2 (Fla. 4th DCA Sept. 5, 2012). In another recent case, a federal judge in New York denied a motion to suppress evidence seized from a defendant s Facebook account, reasoning that [w]hether the Fourth Amendment precludes the Government from viewing a Facebook user s profile absent a showing of probable cause depends, inter alia, on the user s privacy settings. United States v. Meregildo, No. 11 Cr. 576(WHP), 2012 WL , at *1 (S.D.N.Y. Aug. 10, 2012). Moments of distraction may create panicked retractions, as one lawyer infamously hit reply all on a firm-wide , asking Why are we both still at this firm. David Lat, MoFo Partner Offers Cautionary Tale in Use of Reply All, Above the Law (Aug. 25, 2011, 10:06 AM), com/2011/08/mofo-partner-offers-cautionary-tale-inuse-of-reply-all/. In yet another example, litigants in divorce cases have posted incriminating evidence on Facebook, MySpace, Twitter, and other social networking sites. Big Surge in Social Networking Evidence Says Survey of Nation s Top Divorce Lawyers, Am. Acad. Matrimonial Lawyers (Feb. 10, 2010), press/press-releases/e-discovery/big-surge-socialnetworking-evidence-says-survey-. As the digital options have expanded, the task of smoothly incorporating social media into legal practice has become pressing: how to conduct traditional activities like client communications, discovery, and trials in the non-traditional world of s, posts, blogs, and tweets. Simply put, participants in the legal system must become fluent in social media, recognizing that such media are here to stay and form a new professional platform. Solutions are emerging. Most corporate handbooks now include a section on safe uses of and other social media. For its part, the legal profession has recognized the need for guidance and has offered recommendations. The American Bar Association recently issued an ethics opinion suggesting advice to clients on the use of communications. ABA Comm. on Ethics & Prof l Responsibility, Formal Op. 459 (2011). A client who sends an to his attorney on a company server may jeopardize attorney-client confidentiality. Id. The ABA also co-sponsored a seminar on using social media to grow a practice, and it hosted a panel discussion on the challenge of social media for bar associations and lawyers as part of its national conference on professional responsibility. Local bar associations have offered presentations on e-filing, e-courtesy, and other e-topics in litigation and transactional practices. University of Miami School of Law students Samantha Moussa, Carlos Condarco, Allison Brede, and Kyle Swick. S imply put, participants in the legal system must become fluent in social media, recognizing that such media are here to stay and form a new professional platform. Discovery rules are also changing to reflect digital realities. Rule 26 of the Federal Rules of Civil Procedure was amended in 2006 to include electronically stored information in a party s mandatory initial disclosures. Fed. R. Civ. P. 26(a)(1)(A)(ii). The amendment also aimed to ease the potentially enormous burden of e-discovery. In addition to general cost-benefit calculations for all discovery, electronically stored information enjoys a special safe harbor: a party need not produce electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. Fed. R. Civ. P. 26(b)(2)(B). In trials, the best option may be a blanket prohibition on electronic communications. One federal appellate court enthusiastically encouraged district courts to issue instructions prohibiting and admonishing jurors from commenting even obliquely about a trial on social networking websites and other internet mediums. United States The Bencher January/February Continued on the next page. 19

20 Tech Savvy and Practice Ready continued from page 19. v. Fumo, 655 F.3d 288, 305 (3d Cir. 2011). While noting that not every e-communication from a juror will result in a new trial and finding no need for a new trial in the case at hand the court warned of an increased risk of prejudice when a juror comments on a blog or social media website. Id. Solutions for students must focus on shifting the perception of social media from casual to formal. Specifically, students need to treat Facebook, tweets, blogs, and the like as components of the law and potentially indelible marks on their professional reputations. These solutions focus on facilitating the uses of social media and helping practitioners navigate the new digital world. Preserve and produce electronically stored information; be careful when sending attorney-client s; advise clients to check their Facebook privacy settings and to keep compromising photos to themselves; closely review your own Facebook friends; and distinguish reply from reply all. The solutions also recognize that the digital world is unavoidable. Many clients prefer s and have Facebook and Twitter accounts, and documents exist in electronic form. With an open mind toward becoming tech savvy, current practitioners may hone their skills to meet modern demands. Future Participants in the Legal System: Becoming Practice Ready On the other side of the tech-savvy/practice-ready coin, future practitioners need little help navigating the digital world. With the advantage of youth and a childhood introduction to digital devices, law students are intimately familiar with social media. Generation Next or Gen Y or Millennials all terms coined to reference twenty-somethings grew up with computers and feel the comfort of native speakers. They use emoticons and phonetic shorthand with ease. Unlike current participants in the legal system, students generally do not need an introduction to the myriad types and uses of social media. Mistakes still happen, as one summer associate learned when he sent an to his firm s entire underwriting group describing his nice 2hr sushi lunch (and much worse). Ben McGrath, The Bar: Oops, The New Yorker (June 30, 2003), available at archive/2003/06/30/030630ta_talk_mcgrath. But computer clumsiness is rarely the issue. The issue here is one of professionalism: how to imbue informal and seemingly ephemeral communications with the high standards applied to traditional legal activities. Solutions for students must focus on shifting the perception of social media from casual to formal. Specifically, students need to treat Facebook, tweets, blogs, and the like as components of the law and potentially indelible marks on their professional reputations. This need should inform modern legal education. Many law schools offer lessons in professionalism. Such lessons typically focus on proper tone in letters to clients, good-faith efforts in writing and exam-taking, timeliness in submission of assignments, and civility toward classmates and professors. Clinical classes provided additional training in client relationships and courtroom appearances. These professionalism lessons provide a ready forum to introduce social media guidelines. At the University of Miami, where I teach, we have transformed 1L writing assignments to include a professionalism component that reflects the social media cautionary tales described above. For example, rather than require students to write a letter conveying advice to a client, we instruct them to write an conveying that same advice. This opens a discussion of e-discovery and the retrieval of deleted s, the importance of an server, the use of phrases such as privileged and confidential and attorney-client communication in the subject line, and the need for proper spelling and grammar in text. Another assignment involves a hypothetical client who blogs about gambling and thereby triggers a defamation claim from a woman pictured in the blog photo. The writing skills remain the same, but class discussions now delve into blogs, photos, posts, texts, and other aspects of the students Internet footprint. Like technology lessons for practitioners, teaching opportunities for students are plentiful. By updating and rethinking traditional assignments, the legal academy can readily incorporate professionalism lessons for the digital age. The sooner students learn to re-cast social media as professional tools, the less likely they are to generate cautionary tales of their own. Along the way, we may all benefit from fewer emoticons ;-) and texting abbreviations 2sum1 in workplace communications. And may we all, current and future practitioners alike, avoid sending crude s that ultimately appear on the front page of The New York Times. u Christina M. Frohock, Esquire, is on the faculty of the University of Miami School of Law and serves as vice president of the Rosemary Barkett Appellate AIC in Miami, Florida. 20 The Bencher January/February 2013

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