Dr. Seuss, Cheese and Social Media, Part III: Ethical Issues Involving Attorneys and Their Judges

 

"I am the Judge. I speak for the laws!
I speak for the laws, for the laws have no tongues.
And I'm asking you, sir, at the top of my lungs,"
(He was very upset as he shouted and puffed)
"Stop friending me, lawyers!  Enough is enough!" 

Part One of this article discussed how an attorney's use of social media can lead to breaches of confidentiality, conflicts of interest, unintended relationships, and improper advertising.  Part Two of this article then discussed misrepresentations made to third parties on social media and violations of one's duty of candor to the court. 

Since all good things come in threes, we now launch into our final Part Three:  corresponding with a judge in a way that gives rise to the appearance of impropriety, and making inflammatory statements about lawyers or judges.

1.  Assisting in Violations of Judicial Rules of Conduct. Attorneys face ethical quagmires when corresponding with judges on social media, since their correspondences with the judge can be found to "assist" the judge in conduct that violates judicial rules:

  • ABA MPC 8.4(f): Attorneys cannot knowingly assist a judge in conduct that is a violation of applicable rules of judicial conduct or other law.

Does a judicial presence on Facebook, Twitter or other social media, violate rules of judicial conduct? Generally, the answer appears to be no:

"Providing that the judge otherwise complies with the Rules Governing Judicial Conduct, he/she may join and make use of an Internet-based social network . . . [but] should exercise an appropriate degree of discretion in how he/she uses [the network, and must] stay abreast of the [privacy] features[.]"

NY Adv. Comm on Judicial Ethics, Op. 08-176. Even Supreme Court Justice Stephen Breyer has confessed to being an active user of Twitter and Facebook when he testified on Capitol Hill on April 14, 2011. But he turned down numerous requests from attorneys (and others) who wish to follow and friend him, preferring to stick with family and close friends.

The problem arises when considering who a judge can -- and cannot -- friend. Can a judge friend an attorney who might appear before him, and vice versa? It depends on who you ask.  In Kentucky, New York, and South Carolina, the "designation of a 'friend' on a social networking site does not, in and of itself, indicate the degree of intensity of a judge's relationship with the 'friend,'" so the judge can friend who he or she wishes without any appearance of impropriety. On the other side of the coin is Florida, Fla. Sup. Ct. Judicial Ethics Adv, Comm. Op. 2009-20:

The issue . . . is not whether the lawyer actually is in a position to influence the judge, but instead whether the proposed conduct, the identification of the lawyer as a 'friend' on the social networking site, conveys the impression that the lawyer is in a position to influence the judge . . . identification in a public forum of a lawyer who may appear before the judge does convey this impression and therefore is not permitted.

The risk of impropriety -- or even the appearance of it -- is very real. Ex parte communication between judges and attorneys can result in a mistrial. Even a simple Facebook 'Poke' could be problematic.

As one example, North Carolina Judge B. Carlton Terry, Jr. friended defense counsel in a case and discussed the case with him on Facebook, including the weight to be given testimony that one spouse had been unfaithful. "How do I prove a negative?" the defense attorney  asked. The judge provided advice and the attorney called him a "wise judge". The plaintiff's lawyer found out and moved both for a new trial and the judge's disqualification. The judge removed himself from the case and the plaintiff got a new trial. The judge also earned a reprimand from the state Judicial Standards Commission. The attorney, who assisted the judge in the reprimanded conduct, could probably have been sanctioned for violation of Rule 8.4(f) as well.

As a result of this incident and others, judges have begun to use caution when engaged in social media. Most  (a) tend to friend everyone who asks, in order to avoid the appearance of impropriety, (b) not friend attorneys who may appear before them; or (c) only friend family or close friends.

2.  Questionable Professional Conduct (and Insulting Judges).  Even when judges themselves are not online, comments about them in cyberspace can lead to ethical violations. Much like the "catch-all" Federal Rule of Evidence 807 residual exception to hearsay, the ABA rules also capture questionable conduct that, while not fitting neatly into a specific rule, still "smells funny":

  • ABA Model Rule 8.4(d): Attorney cannot engage in professional conduct prejudicial to the administration of justice.

This rule can be used by itself, or in conjunction with pretty much any other rule for some added bite. Say, for example, that as the lawyer for Cheese, Inc., who is suing a bunch of cheese manufacturers, pizza parlors and restaurants for making and using cheese that infringes a particularly cheesy patent of yours, you have become frustrated with the judge's attitude. He is constantly overruling your objections and sustaining the other side's. Clearly, the judge is lactose intolerant and has never partaken in the deliciousness that is fine cheese. Needing an outlet, you tweet to your 343 followers that the judge is "an incompetent cheese-a-phobe whose rulings stink more than a Roquefort left to rot in the sun." Hey, the First Amendment, right? Wrong:

  • ABA Model Rule 8.2: Attorney cannot make false or reckless statements regarding the qualifications or integrity of a judge.

Attorneys in Broward County Court, Florida learned that just this type of conduct can be a violation of both ABA MPC rules. Specifically, local attorneys there frequent JAABlog, a local but private forum. One attorney, Sean Conneryway, logged onto the site and questioned the procedure of a certain judge, calling her by name, and referring to her as an "evil, unfair witch" and "seemingly mentally ill." Conway also declared her "clearly unfit for her position and knows not what it means to be a neutral arbiter." While most of this could easily be classified as hyperbole, the Florida bar found him guilty of FIVE ethics violations, including the Florida version of these two Rules. While Double-O Conway argued that he was simply exercising his First Amendment right, this argument netted him a public reprimand and $1,250 fine. See Florida Bar SC08-326 (Fla Jan 22, 2009).

By contrast, another example took place during a fee dispute following a routine employment lawsuit against UPS. UPS and its attorneys at Paul Hastings, submitted as evidence several of the plaintiff-attorney's posts on the private California Employment Lawyers' Association (CELA) listserv concerning the trial of his client, a UPS employee. These included a post in which the attorney criticized the district court judge in the trial as "defense-biased from the [MSJ] hearing forward," and another in which he stated that:

Amazingly, my colleague and I caught her [the judge] signaling to defense counsel to try to elicit objections during our examinations. Perhaps the judge did not like me or my personality, but I have never had an experience like this in 40 years of lawyering.

CELA requested that Paul Hastings be referred to the state bar ethical committee for submitting stolen evidence, since the listserv was a closed forum and the firm knew that CELA was asserting privilege. The court found it  "inappropriate" for Paul Hastings to publicly disclose the material and held that doing so could pose a "security risk" to the judge at issue. While silent on potential rule-based violations, under these facts ethical violations of Rules 8.2 and 8.4(d) could be possible for the plaintiff-attorney, and perhaps a Rule 8.4(d) violation for the law firm. 

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In sum, as noted in Parts I, II and III of this article, the potential ethical violations faced by attorneys (and judges!) as a result of improper use of social media, are many. As social media grows increasingly common and complex, the  issues will only increase.

Nor are attorneys, their clients, and judges the only ones in the legal system affected. Even jurors face sanctions over improper use of social media. For example, juror Hadley Jons was recently punished for posting a "Guilty" verdict on Facebook before the verdict was even announced in court. The posting came to light only because the defense attorney’s son, who was working in his mother’s law office, checked the jurors against Facebook. The judge removed the juror the following day, and judge ordered her to write a five-page essay about the constitutional right to a fair trial.

Dr. Seuss, Cheese and Social Media, Part II: Ethical Pitfalls, Pretexting and Duties of Candor

 Imagine the following eloquent cross-examination:

ATTORNEY SAM: Good morning, Witness. I am Sam. Do you like green eggs and ham?
WITNESS: I do not like them, Sam-I-am.
ATTORNEY SAM: Would you eat them in a house?
WITNESS: I would not eat them in a house.
ATTORNEY SAM: Would you eat them with a mouse?
WITNESS: I would not eat them with a mouse.
ATTORNEY SAM: Would you eat them here or there?
WITNESS: I would not eat them here or there. I would not eat them anywh --

Why the sudden break in testimony? Because last month Attorney Sam managed to get Witness to "friend" him on Facebook, and he is now holding up the fruits of that endeavor as Exhibit A -- a photograph posted on Witness's page in which he is . . . eating green eggs and ham.

Part One of this article discussed how an attorney's use of social media can lead to breaches of confidentiality, conflicts of interest, unintended relationships, and improper advertising. But as comprehensive as this list seems, additional ethical issues can rise out of an attorney's immersion in social media.  These problematic issues include misrepresentations made to third parties on social media and violations of one's duty of candor to the court.  

1.  False and Misleading Behavior (Pretexting):  The ABA Model Rules of Professional Conduct ("ABA MPC") for lawyers are full of prohibitions against attorneys engaging in various types of false and misleading statements.  For example:

  • ABA MPC Rule 4.1: Attorneys cannot make false, material statements to a third party.
  • ABA MPC Rule 4.2 -- Attorneys cannot communicate with a represented person.
  • ABA MPC Rule 4.3: Attorneys cannot misrepresent their role or disinterestedness to an unrepresented party, and must correct any misunderstanding as to these issues.
  • ABA MPC Rule 5.3: Attorneys are responsible for the conduct of a non-lawyer assistant and must make reasonable efforts to ensure the person's conduct is compatible with the lawyer's professional obligations.
  • ABA MPC Rule 8.4(c): Attorneys cannot engage in conduct involving dishonesty, fraud, deceit, misrepresentation, or encouragement of such.

In today's cyberworld, every single one of these rules can be evoked when an attorney engages in pretexting, which raises ethical concerns relating to contacting opposing parties and gathering information without full disclosure or consent.

What is pretexting? The long, boring answer: obtaining personal information under false pretenses, usually by concealing one's identity or intent. The short, more interesting answer: the Hewlett-Packard (HP) scandal of 2006. HP spied on its own directors' personal phone records to determine who was leaking company information, by having private investigators call up phone companies, pretending to be the directors who were seeking their "own" records. Criminal charges were brought against the HP Chairman of the Board, Patricia Dunn, the alleged brains behind the investigation. The charges were eventually dropped "in the interests of justice," but not before Dunn was pressured to step down as Chairman.

While the HP scandal did not concern social media, it brought the growing practice of pretexting to the forefront -- a problem that has been magnified in the online context. People, after all, are easier to deceive in a virtual world.  It would be simple for Attorney Sam to create a false Facebook page in order to get our Witness to accept his friend invitation. The end result: the incriminating impeachment photo.

Did Attorney Sam act improperly? Most likely. Bar associations and courts are bearing down heavily on pretexting lawyers. While it is fine if the social media page is public, like a blog or an open Facebook page, see, e.g., NY State Bar Ass'n Comm. on Prof. Ethics, Op. 943 (Sep. 10, 2010), if the attorney must interact with the person to gain access (i.e., "friending"), the pretexting would likely violate one or more ABA rules.

"But wait," Attorney Sam might say. "I may not have told him who I was, but Witness accepts friend invitations from everyone, even people he doesn't know!" Too bad.  The pretexting still involved "dishonesty, fraud, deceit or misrepresentation." See, e.g., Philadelphia Bar Ass'n Prof. Guidance Comm. Op. 2009-02.  Whether Witness might still have accepted Attorney Sam's invitation if he knew of his identity, is irrelevant. Id.  Similarly, at least in Philadelphia, even where the attorney is honest about who he is when making a friend request, an attorney must make full disclosure of his motive, otherwise the request is deceitful since the attorney is concealing a highly material fact -- that he is trying to obtain impeaching testimony. Id. Luckily for Attorney Sam, New York has come out a different way. There, if an attorney uses his real name and profile without disclosing the reason, no ethical violation may be found if the person being friended is an unrepresented party. See NYC Comm. On Prof. and Jud. Ethics 2010-2 (Sep. 2010).

"Wait!" Attorney Sam says again, eager to remove all doubt. "Maybe it wasn't me who made the friend request. It was my private investigator, who also doubles as my paralegal!" But if the paralegal or investigator engages in this conduct at the attorney's request, and possibly even without his express knowledge, the attorney is still on the hook -- for example, under Rules 5.3 and 8.4(c).  There are, however, limited exceptions. Remember, as set forth in Part I, that this case by Cheese, Inc. is a patent infringement case, and might have overtones of trade secret issues. Some bar association ethics committees allow for pretexting when investigating violations of civil or intellectual property rights.  New York is one example.  See, e.g., NY Cty Lawyers Ass'n Comm. on Prof. Ethics No. 737. Similarly, in Alabama, "[d]uring pre-litigation investigation of suspected infringers of intellectual property rights, a lawyer may employ private investigators to pose as customers under the pretext of seeking services of the suspected infringers on the same basis or in the same manner as a member of the general public." Alabama State Bar Office of the Gen. Counsel Op. 2007-05.  This ruling has been found applicable to social media.

In short, friending witnesses or anyone else involved in the case is risky. The law is still not quite settled. Until it is, better safe than sorry.

2.  Duty of Candor.  In addition to a duty not to make false statements to third parties, a lawyer also has a duty of candor to the court:

  • ABA MPC Rule 3.3(a): A lawyer shall not knowingly . . . make a false statement of fact or law to a tribunal . . .

While social media does not necessarily cause an attorney to violate this duty, it does make it easier to be caught with one hand in the cheese cabinet. A prime example is an attorney who asked Judge Susan Criss of Galveston, Texas state court, for a continuance because of the death of her father. Judge Criss peeked at the lawyer's public Facebook page during the week of the alleged funeral, and found that she had posted a string of status updates detailing her week of drinking and partying.

Attorneys might rail against the unfairness of judicial intrusions upon their Facebook pages. But at least one court has held that attorneys likely have no "reasonable expectation of privacy" on social media despite whatever privacy settings they employ, since Facebook and MySpace do not guarantee "complete privacy." Romano v. Steelcase, 907 N.Y.S.2d 650, 655 (2010). This was proven again just this past week on July 20, 2011, when police found an escaped drug offender lunching with his Oklahoma lawyer a day after he escaped from jail -- in part because they discovered that the lawyer had posted a Facebook photo of the two of them together.

In short, lawyers who use social media -- whether personally or for investigative purposes -- should therefore be careful:  sometimes it is not possible to both have your green eggs and ham, and eat them too. 

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Coming soon, the final installment of our "Dr. Seuss, Cheese, and Social Media" trilogy, on what happens when attorneys discuss or contact judges on social media. 

Dr. Seuss, Cheese and Social Media: Ethical Pitfalls Impacting Attorneys and Their Clients

Should lawyers be able to move about as freely within social media as the rest of the population, despite the risk to themselves and their clients? Perhaps Dr. Seuss said it best in Horton Hears a Who, although the full verse ought to have gone something like this:

"A person’s a person, no matter how small."
And your lawyer’s a person as well, after all.
So Twitter and LinkedIn and Facebook's friend wall --
They aren’t just yours, but are his ports of call.

When engaging in social media, the last thing an attorney and his client have in mind is the almighty “E” word: ETHICS. But an attorney’s use of social media poses a multitude of ethical risks that impact that attorney, his law firm, and his client.  Of course, it is hardly feasible (and, the author of this blog humbly adds, hardly fair) to exclude attorneys from what has become the communicative oxygen of the twenty-first century. Nonetheless, attorneys must take more care than most individuals as to what they post online. Otherwise, they risk opening a Pandora’s box of ethical violations that impact themselves, their firms and their clients -- such as breaches of confidentiality, conflicts of interest, the creation of unintended relationships, and improper advertising. And those are only the obvious possibilities.

What are some of the ethical rules under the ABA Model Rule of Professional Conduct ("ABA MPC") that one’s attorney can commit on social media, that endanger a client’s case or information, among other things?

1.  Breaches of Confidentiality. ABA MPC 1.6(a) has two prongs:

  • Lawyers cannot reveal information "relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted" under several narrow exceptions.
  • Lawyers must competently safeguard their client's information against unauthorized or inadvertent disclosure by the lawyer.

Let’s pretend you are the CEO of Cheese, Inc. and your company was just yesterday granted a patent on a method of creating cheese wheels that are fat-free and even tastier than "the real thing." You have hired a young, up-and-coming patent litigation partner at Dewey, Cheatham & Howe LLC to help you amass a case against a number of pizza companies, cheese manufacturers, and restaurants who make or use cheese wheels that infringe your patent. You’ve friended your DC&H attorney on Facebook and LinkedIn because . . . well, because the more connections, the better, right? To your horror, you see your attorney’s status update gleefully stating that he is "About to take on the cheese industry -- stay tuned!"

If that’s not enough, one of your attorney’s 700 “friends” on Facebook happens to be married to in-house counsel for a major cheese manufacturer. That savvy attorney takes a look at your friendly DC&H partner's page to see where he's "checked in" over the last week or so, and sees that he went to dinner a few blocks away from Cheese, Inc. He also sees that you, the CEO of Cheese, Inc., are on this attorney's "friend" list. He puts two and two together. The next day, his company files a declaratory judgment lawsuit against Cheese, Inc., way out in the inconvenient Western District of Kalamazoo where he is based, asking for a declaration of noninfringement. You have now lost the home court advantage, among other things.

There are many other ways an attorney can breach confidentiality on social media, even if it doesn’t result in a situation as extreme as this:

  • Even innocuous status updates like, "I'm working on a motion to dismiss in ABC case, arguing XYZ" are risky, since someone might be able to tell from context what case it is.
  • If an attorney posts a status update or tweet from a smartphone, i.e., “just met a brand new client with a lucrative lawsuit”, geo-tagging can show where he was and allows one to guess the client's identity from the location.
  • An attorney may inadvertently reveal confidential information, such as a confidential relationship, by allowing a site like LinkedIn to import Outlook contacts, or allowing others to view his "friend" list, which could include clients.
  • Linking to other websites on Facebook (such as a client’s) could disclose a confidential relationship.
  • Some sites require granting the site developer access to all information placed on it, which could destroy claims of privilege/confidentiality regarding social networking communications.

As one real life example, in Illinois Supreme Court M.R. 23974 (Ill. May 18, 2010), an Illinois attorney received a 60-day suspension and was fired from his public defender job of 19 years, for making veiled references on a Facebook page to his client's identification and confidential case details. His posts included: "This stupid kid is taking the rap for his drug-dealing dirtbag of an older brother because he's no snitch." While vague, the post was still enough to reveal client confidences. However, the attorney admittedly referred to the judge in the case as "Judge Clueless" and "a . . . hole,” which certainly did not help his situation.

2.   Conflicts of Interest and Unintended Relationships. Nor is breach of confidentiality the only potential difficulty. ABA MPC 1.7 precludes a lawyer from representing a client where such representation is "materially limited" by a "personal interest of the lawyer." And ABA MPC 1.8 states that even where no attorney-client relationship is created, “a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation" or "represent a client with interests materially adverse to those of a prospective client in the same or substantially related matter" if it could be harmful to that prospective client.

What does this mean for social media? As a client, your attorney could violate either rule as to your interests simply through routine internet communiqués. Let’s say you, our CEO of Cheese, Inc., have that DC&H attorney with a Facebook page that you are privy to. His News Feed contains a post from a friend who is a taste tester for Food & Wine magazine, expressing fear that she may be embroiled in a lawsuit involving a company she consults with. You see that your attorney has provided a few tips on staying out of trouble.  You also recognize the friend as a well-known cheese expert who works closely with one of the competitors you are about to sue!  You Google your attorney’s name and find that soon after this communication, your attorney wrote a blog post about how the food industry is becoming increasingly litigious and what can be done by "the little guy" to protect oneself against such lawsuits by the Big Cheese.

Unlike other methods of communication, social networking often consists of casual interactions that cannot be distinguished from more formal relationships. Simply by helping out a friend or expressing a public opinion on a public issue, your attorney may very well have created at least one conflict of interest implicating ABA MPC 1.7 and 1.8. And how?

  • Providing casual advice can create an attorney-client relationship or even "prospective" relationship that does not rise to that level, which conflicts with an existing client. Attorneys are constantly faced with friends who post about their legal troubles, so there is a temptation to give quick advice without thinking about it first -- and certainly without running conflict checks.
  • Soliciting confidential information on social media can easily create such a relationship as well. Acquiring confidential information from the prospective client -- even via a casual "tell me more and I'll give you a little advice off-the-record" -- could then lead to a conflict of interest with a current client.
  • Expressing definitive legal opinions on social media may conflict an attorney out of a big case with a current client. In fact, the entire firm could be conflicted out due to one attorney's comments.

However, note that a legal blog does not pose these ethical dilemmas if there is no communication of individual advice. As stated in State Bar of Ariz., Formal Ethics Op. 97-04 (1997):

Lawyers should not answer specific legal questions from lay people through the Internet unless the question presented is of a general nature and the advice given is not fact specific.

Thus, if your attorney possesses a “Dear Abby, J.D.” type of website or blog that offers specific advice on problems within your industry, it might be a good idea to think twice before signing the engagement letter.

3.  LinkedIn and Client Contacts. ABA MPC 7.4 states that an attorney cannot claim a specialty unless it is in admiralty or patent law, or unless the lawyer has obtained a certification. Similarly, ABA MPC 7.2(b) states that an attorney cannot give something in value in exchange for a recommendation from a client. But social media, particularly LinkedIn, makes it easy for attorneys, both in-house and outside counsel, to fall into this trap.

For example, your DC&H attorneys have successfully resolved Cheese, Inc.'s patent infringement lawsuit, obtaining an infringement finding and leading to damages in the hundreds of millions. You, as CEO of Cheese, Inc., are thrilled! You've been playing with LinkedIn, and tell your contacts at DC&H that you'll recommend them if they recommend you. You both write and post blurbs about each other. This complements all of your LinkedIn profiles, which now lists all of the attorneys involved as specialists in patent litigation. How does this and other usage of LinkedIn violate the rules?

  • The "Recommendations" feature allows your client to recommend you, and vice versa. Clients and attorneys should not quid-pro-quo recommend each other on LinkedIn, so as not to violate ABC MPC 7.2(b).
  • The "Recommendations" feature allows clients to say whatever they want. Ethical standards prevent some types of statements, such as comparisons to other attorney services absent objective data -- i.e., "Best lawyer in town." Pre-screen the recommendations before they are posted.
  • LinkedIn allows listing "specialties" on the user profile, as well as areas of practice. The smart thing to do is leave these vague or blank so as not to violate ABA MPC 7.4.
  • The "Answers" feature allows attorneys to respond to questions that are posted generally. If voters constantly give the attorney's response a "best response" vote, LinkedIn designates the attorney as an "Expert," which may violate this rule.

The overall lesson? As a potential client, when shopping for an attorney or law firm, conduct a Google search and see what kind of social media footprint your prospective counsel has left. And on the flip side, monitor your own  footprint closely. You and your attorneys don't need to stay away from social media, merely be careful not to bare your "soles" too heavily. 

Wear shoes.

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Coming Soon, Part Two on the Ethical Pitfalls of Social Media: Even more ethical rules implicated by social media, and examples of attorneys -- and judges -- who have stepped into the muddy situations they create.

Brave New World

"When the individual feels, the community reels."
                              - Aldous Huxley, Brave New World

 

As we all adapt to the “Brave New World” where one’s every thought or utterance can be instantly broadcast to hundreds, thousands, or millions of people via Facebook, Twitter and other social networking media, it stands to reason that some of these electronic “feelings” will impact the legal community and the way electronic information is used in litigation.

 

Despite his fictional view of the future, it’s hard to imagine that Huxley could have foreseen our current environment of lightning-fast relay of stream-of-consciousness meditations. As a primary example, Hadley Jons, a juror in Mount Clemens, Michigan, was removed when it was discovered that she had posted on Facebook that it was going to be “fun to tell the defendant that they’re guilty.”  Naturally, the fact that the trial was not over and the defense had not even begun presenting its case presented more than a little problem . . . 

 Ed White, reporting in The Huffington Post article Juror Hadley Jons Punished For Posting Verdict On Facebooknoted that the posting came to light only because the defense attorney’s son, who was working in his mother’s law office, checked the jurors against Facebook. The judge removed the juror the following day.  Though Ms. Jons apologized, the judge ordered her to write a five-page essay about the constitutional right to a fair trial.

So, in addition to the layer of electronic discovery issues already creating new ways to build and analyze a case, attorneys are now realizing that they will need to review and then monitor electronic social media to make sure that their client gets a fair trial. 

 

As for the rest of us, it’s wise to think of our social media postings in light of one of a favorite quote from Facebook: “If you have the capacity to learn from your mistakes, you will learn a lot today.”

The Ringmaster or the Clown? Dealing with the E-Discovery Elephant in the Room

It is rare to find one of those shared tenets that defy all cultural, geographic, and chronological boundaries -- some fundamental underpinning of life found everywhere from the days of the caveman to the modern age. One we can all agree on, however, is that a professional's worth is and always has been commensurate with his or her experience. The senior dragon slayer of King Arthur's round table received a shinier suit of armor than the new guy. The master caveman's time and worth rose above the apprentice's. And in present day law firm culture, the value of the Associate is often dwarfed by that of the Senior Partner in the cozy corner office.

Electronic discovery, however, has turned this fundamental dynamic on its head. In most areas of the law, change is effected in small increments, opinion by opinion and statute by statute. Sage senior lawyers add to their existing knowledge by keeping up on recent developments -- no fundamental change in thinking is required. Electronic discovery, however, has forced a radical, qualitative change in almost every aspect of how discovery is conducted. Heck, an entire Federal Rule of Civil Procedure was rewritten to account for it. And the dreaded "it" -- that virtual elephant in the room -- is everywhere. As Judge Shira Scheindlin of the Southern District of New York observed in an interview, "We used to say there's e-discovery as if it was a subset of all discovery. But now there's no other discovery."

This ever-expanding nature of e-discovery is carving out a unique dynamic in the three-ring circus that is the Law Firm and the in-house legal department. In short, the problem is that the two parts of the equation needed to master e-discovery (expertise in discovery law and procedure, and expertise in electronic media) are currently located in two separate circus rings: the Ringmaster's and the Clown's.
 

  • The Ringmaster: In one outer ring you have the partner, our Ringmaster, an experienced and respected litigator so well-versed in discovery procedures and law that he or she can write interrogatories and respond to document requests while juggling oversized balls of Case Strategy, Knowledge and Experience for the client in the front row. It is true that there are Ringmasters who are also well-steeped in the art of e-discovery, who have taken the initiative to learn everything about it and keep up on the latest social networking arrivals. This article is not addressed to these Ringmasters. It is addressed to the more litigation-centric ones -- and there are many -- who view discovery as more of just another step on the way to the ultimate trial and motion practice, than a living entity in its own right. Ask such a Ringmaster for electronic search protocols and you will receive a list of terms that do not capture the depth and breadth of materials needed. Say "Twitter" and he or she will ask about your bird-watching hobby. E-mail them about Flickr and you'll get berated for spelling mistakes.
     
  • The Clown: In the other outer ring you have the young associate, our Clown, who is still on some level struggling to appreciate the distinction between general and specific objections to document requests. But at the same time, our Clown has a unique appreciation for electronic discovery that the Ringmaster often does not.  The Clown is intimately familiar with all potential bastions of electronic communication, from e-mail and iPhones to Twitter, YouTube, Flickr and Facebook. He or she appreciates from personal experience that social networking sites are interactive and amorphous circus animals, such that the only thing unchanging about them is the fact that they change several times a day. Even coming up with electronic search protocols requires a working knowledge of computer technology nowadays. Judge Scheindlin observed that, "People think they've searched and they haven't looked in the right places, haven't communicated with the right people, they haven't used best technology to go through materials they do have." Younger associates know where and how to find the most obscure information online. They cut their e-teeth on Google. They have run countless word-searches on Westlaw, learning from experience how to best craft searches to obtain the results they need. They know what types of computer applications to find documents in. Microsoft is their friend.

There is no doubt that Ringmasters are more than capable of learning the basics through articles, lectures and other means. But there is a difference between knowing that and knowing how. For Clowns -- many of whom check Facebook and Twitter before they brush their teeth in the morning -- the intricacies of electronic communication are as intuitive as the art of humor. To expect many Ringmasters to extract secondhand a deep understanding of how these new innovations work and to obtain what he wants from them, is like asking a law student to fully comprehend the Federal Rules based on a first-year Civil Procedure class. Just as it takes practicing in a real courtroom for the isolated rules to "click", immersion into electronic communication is needed to truly appreciate its fine points. Plenty of Ringmasters can and have done this. But plenty more have not. As Judge Scheindlin observed, "Those of us who are a little older, shall I say modestly or immodestly, [ ] it's too late for us. We can't really change completely. But for these young people coming out the world will change with them."

And it is. Just a couple of weeks agok, the court in Chen v. Dougherty, 2009 WL 1938961 (W.D. Wash. July 7, 2009) implied what would happen in the e-discovery circus if, in a sequel to blockbuster flick I am Legend, a genetically-engineered cure to a devastating illness had the unintended side effect of wiping out the associate population -- and since Will Smith's character was snuffed out in the first movie, there was no one to create a cure. The answer: the partner may find himself balancing the trapeze without a safety net. The Chen court refused to award the prevailing plaintiff its attorneys' fees based on its attorney's normal hourly rate, for the time the attorney spent on e-discovery. Why? The attorney, a partner with twenty years of experience, almost certainly knew general discovery law inside and out. No matter:

"[The attorney's] inhibited ability to participate meaningfully in electronic discovery tells the Court that she has novice skills in this area and cannot command the rate of experienced counsel."

There is no doubt that this was a good lawyer -- she won the case, after all. And the defendants had to pay her regular fee for all other portions of the case. But the court ordered the attorney's rate to be reduced on e-discovery matters to $200 for, as an example, "failing to offer search terms for the delivery of relevant ESI." Given that some partners in Seattle bill out at over $400 an hour, it is possible that this attorney's e-discovery fees were halved. Ouch.

This divide between Ringmasters and Clowns will only widen as social networking expands. Niche social networking sites are emerging every day -- some recent new ones include Ning, Sodahead, Bebo, Fanpop, Imeen, and Eons. The British government has published a guide to help ministers understand how to use Twitter, with the aim of extending its news and corporate messages online. And major companies are now using these resources as networking and branding tools to communicate with consumers and offer an inside look at the company in more intimate, real-time fashion than a website. As noted in a recent U.S. News article, Victoria's Secret, Southwest Airlines, Mastercard, The Gap, and Starbucks are using Twitter and Facebook. And now smaller businesses are joining the Twitter fray. As Zappo CEO Tony Hsieh recognized via Twitter update, borrowing a phrase from the eminently-quotable Winnie-the-Pooh, "You can't stay in your corner of the forest waiting for others to come to you. You've got to go to them sometimes."

The resulting interactivity -- and the brazenness with which these social corporations are lifting the veil that separates individual consumers from company executives -- is astounding. And it foretells the inevitable legal tangles to come in all types of litigation, from false advertising to employment, patent, defamation, government investigations into off-label promotion practices of pharmaceutical companies, and many others. (A defamation lawsuit was just filed in Chicago against a woman for "twittering" that her management company was tolerant of moldy apartments.) Unfortunately, most of the legal issues posed by social networking have yet to see the inside of a courtroom. The area is new, and the old rules may not apply. Social networks such as Facebook change appearance by the minute, making it difficult to track down the specific version relevant to a litigation. On the other hand "Tweleted," a site that digs up deleted Twitter Posts from Twitter's search engines, is now taking the world by storm. Even more confusing, all social networks -- even any two Facebook accounts -- are not created equal. Whether their content is fair game for e-discovery may depend on individual privacy settings: whether an owner allows general access or access only by "friends."

Think of a social network like the typically elaborate circus car rolling into the Center Ring. A Ringmaster may see a car with a capacity for four or five occupants, each of which the Ringmaster will question thoroughly. The Clown will more often see a car in which an unlimited number of occupants can fit -- every friend, every follower, every update, post, blog, tweet and related "app". He or she will know that each of these occupants should be questioned, but will not be quite sure where to go from there. It is clear that one way or another, the Ringmasters in their circus ring of discovery knowledge and experience, and the Clowns with their technology expertise, need to come together in the Center Ring. This can be done any number of ways:

  • Encourage more Ringmasters-Clown Collaboration. Partner-associate interaction in e-discovery should resemble more of a shared collaboration than a senior person doing the higher-level work and delegating the lower-level tasks to a junior. Unlike many areas of the law, a young associate may have significant input to offer on e-discovery matters -- where to look, what to look for -- even if he or she does not recognize that at first glance due to lack of in-depth knowledge about discovery procedures.
     
  • Make Clowns the Ringmasters of the Center Ring.  Choose a small number of young associates and turn them into "one-stop shopping" experts by deepening their knowledge of discovery law and process to supplement their knowledge of electronic media. Send them to CLEs. Give them 50 non-billable hours for the year to read up on discovery issues. Have them present CLEs, or write law journal articles or blog entries applying the law and process to new social media. As e-discovery options and procedure expand, these younger associates will be best poised to recognize the issues.
     
  • Sole practitioners and small firms are in the hardest position.  The Chen attorney was a sole practitioner or close to it, with little to no associate knowledge to rely on. This is typically the case in very small firms. As the role of e-discovery and social media in litigation expands, these partner-shareholders will need to master these new e-media themselves -- mere knowledge of discovery in general will not be enough, and relying on non-legal e-discovery consultants who do not know the case, and/or are not attorneys, is risky. Alternatively, they should consult with younger attorneys on a part-time basis, who can provide some focus on what to look for, where, and how.
     
  • Graduates of Clown U.  Senior associates and junior partners are not yet Ringmasters, but have left their Clown days behind. They grew up in the tail end of the Paper Age and the beginning of the E-paper Age. E-mail emerged in junior high or high school, the World Wide Web in college or law school, and Westlaw a couple of years before or after they started law school. These lawyers are almost as savvy at the technology side of e-discovery as the Clowns. The difference is that (1) they do not take it for granted, because they spent formative years without it; and (2) it is not as intuitive for them; they have to work at it a little more, particularly the newer forms of e-communication. Facebooks and Twitters are divergences that they understand and even use, but without quite the same level of immersion. Their advantage, however, is that in being less fascinated with the bell-and-whistle details they are more apt to see the 'big picture' -- to view these tools as the latest but not greatest fads, and to be able to anticipate, given their knowledge of both law and the technology, what will come next. Yes, they have things to learn both from the Clown and the Ringmaster, and they (like Ringmasters) must make an effort to keep themselves fresh when it comes to each new wave of e-communication, something that comes more naturally to Clowns. If they do, their knowledge of both outer circus rings may propel them farther and faster than Ringmasters or Clowns.

These are not the only solutions. The point is, however, that now is the time for firms and corporations to position themselves for a future in which e-discovery will play an even larger role, by recognizing that the traditional bright-line Ringmaster-Clown, partner-associate dynamic cannot function in this area. If they fail to do so, they may find themselves in the middle of the circus, hanging from the trapeze with -- like the Chen attorney --only half a safety net below.
 

E-Discovery Tweets!

Want to keep up with this cutting-edge area of the law in the most cutting-edge way?  (aside from bookmarking E-Discovery Bytes, of course.)

Gabe Acevedo of Gabe's Guide's latest effort, TweetDiscovery, is designed to capture all of the e-discovery-related "tweets" on Twitter.  The first page of TweetDiscovery highlights the tweets of a number of individuals who regularly post e-discovery-related material on Twitter.  The other pages are feeds that include any time someone uses "e-discovery" or "ediscovery" in a Twitter tweet, or any time a person uses the category (called a "#hashtag") "#ediscovery" in a tweet.  You don't even need to have a Twitter account to view the text and access the links in the feed.  It's still a work-in-progress - Gabe repeatedly reminds users that the site is "still in Beta...so Beta we're almost Delta" - but promises to be a valuable resource for those who need to stay apprised of the latest developments in the e-discovery arena.

If you are on Twitter, you can also join the E-Discovery Twibe (a Twitter group for those interested in and tweeting about e-discovery issues), and follow the e-discovery-related posts of all the group's members.  And you can follow Gabe, to get his tweets in your feed every day. 

Although the jury is definitely still out on the overall advantages of Twitter, TweetDiscovery has some distinct benefits:

  • People often tweet in real time from conferences, giving you a window into the latest commentary on e-discovery issues as it happens;
  • It's yet another tool to keep on top of e-discovery issues:  people tweet in real time about developments in the law, cases to watch, and other legal matters;
  • People also tweet in real time about emerging developments in the e-discovery business, including new ventures and products by e-discovery vendors;
  • It connects you with a network of e-discovery businesses and professionals who may become resources in the future;
  • You can follow just the e-discovery-related tweets on Twitter, without setting up a Twitter account for yourself;
  • It's just really cool!

See you in the Twibe!

Googling and Tweeting and Facebooking, Oh My! Jurors Conducting Outside Research During Trial

The Internet and sites such as Twitter offer many opportunities to create more transparency in the justice system, beyond reporting by the mainstream media.  The University of Montana's blog / tweet project on the W.R. Grace trial is just one intriguing current example.  More on that fascinating endeavor here

But the increasing mobility of Internet access has other unintended consequences that cross into the E-Discovery arena.  The New York Times online posted a fascinating article  (note:  New York Times login required)highlighting the sharp increase in the number of jurors who violate the court's routine admonition not to conduct any outside research on the case.  A growing number of jurors are conducting Internet searches on their BlackBerrys or iPhones or sending "tweets" or blogging about the trial via the Internet - sometimes even while they are hearing evidence at trial.

This juror misconduct ranges from a juror "Googling" information regarding factual issues in the case, to a juror who posted periodic updates on the conduct of the trial to Twitter and Facebook.  And it's not just an isolated phenomenon.  In one case the New York Times article discusses, a juror in a federal criminal prosecution admitted that he had conducted outside research on the Internet.  Thinking this an aberration, and an issue that could be resolved simply by removing the offending juror from the jury, the trial judge questioned the other jurors on the panel.  Turns out eight other jurors had been doing the same thing!  The court had no other option but to declare a mistrial.

Trial judges have routinely instructed jurors for years not to conduct outside research.  And, in the past several years, judges have modified those instructions to include admonitions not to conduct any research via the Internet.  Nonetheless, the number of jurors violating those instructions - and causing mistrials or ripe issues for appeal - has grown as the ease and means of accessing information have grown.

Why is it a problem?  Let jurors do outside research and you might as well throw the Constitution and the Rules of Evidence out the window.  The exclusionary rule would have no meaning if jurors could just Google newspaper accounts of the investigation and perhaps even key documents, or read the notoriously easily manipulated articles on Wikipedia.

What is a trial lawyer to do?   We certainly don't want all juries sequestered, with their iPhones, BlackBerrys and laptops locked away in the custody of the court, for the duration of trial.  Some less-drastic alternatives:

  • Ask the trial judge to expand her boilerplate admonition to incorporate an explicit explanation of the policies behind the rule and the consequences of violating the rule.  Be prepared with your own draft admonition and submit it with your jury instructions. 
  • To the extent that the judge or your jurisdiction permits you to do so, use voir dire to (1) educate the panel regarding why they shouldn't do outside research, including Internet research, and (2) enlist the jurors in helping the court enforce that restriction. 
  • In Arizona, where I currently practice, jurors can submit questions to be asked of a given witness.  Sometimes those questions may clue you in that jurors are doing improper outside research.  Be alert to the possibility, and be prepared to ask the court to inquire.
  • Bone up on your e-discovery law, and be prepared to subpoena text message records, laptop hard drives and other ESI if you suspect juror misconduct created an appealable issue.

Finally, don't ignore the upsides and opportunities our wired age provides the diligent litigator.  As the NYT article notes, many trial attorneys now conduct their own Internet research on prospective jurors.  Look at those Facebook and MySpace pages.  Read those blogs, tweets, and websites.