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Legal Ethics – Check Your iOS 8 Privacy Settings

Lawyers (and other professionals) have ethical obligations to reasonably know about the technology they use — and ensure that communications are confidential and protected.iOS-8-logo-mockup-001

This article from the December 2014 Palm Beach Bar Journal explains a dozen privacy settings for your iPhone or iPad which should increase your security.

Can a Law Firm Operate ONLY in the Cloud?

Can a lawyer operate a pure internet-only “virtual law firm” where counsel never speaks or meets with the client face-to-face?

The California State Bar recently issued opinion 2012-184 saying that virtual law offices (“VLO’s”) are acceptable with some considerations.

The hypothetical setting is that clients would sign up for transactional, probate, and family law assistance purely via a secure website.  The Bar (correctly) identified that there was nothing inherently wrong with that method of communication or representation as long as the lawyer was reasonably capable of ensuring that all confidences were protected.  Moreover, since the lawyer would not see the client in person, the lawyer would need to go to extra steps to confirm the client’s identity, understanding of the legal advice, and that the client was technologically-capable of receiving the advice via portal and that such communications were timely.

It’s not referenced in the opinion but a lawyer operating a VLO should have some way for a client to connect via phone; throwing a myriad of forms or “walls” (such as webpages or voicemail) might trigger a breakdown in communications and tempers leading to bar complaints.

As with lawyers and cloud computing, there is an appropriate focus on security and confidentiality.  This “focus” on confidentiality is good as long as it does not turn into a fascination or e-paranoia about security.  Admittedly, VLOs and cloud computing are emerging technologies and reasonable consideration and care needs to be taken to ensure client confidence.  But the fact remains is that law firm lease physical offices from third parties as well as use third parties for office cleaning, copier rentals/service, security, phone connections, credit card, electronic payment, trash services, outside storage, etc.  Bottom line: with reasonable precautions, we have third parties in and around our client data all the time in the physical world.  The fact that a third party is involved in transmission, storage or reproduction of client information in an electronic format should not be viewed as foreign or an inherent risk to security.

Can a Lawyer Respond to an Opposing Party Email?

A defendant in a personal injury suit lost in arbitration and her lawyer sought trial de novo.  The defendant sent an email to plaintiff’s counsel stating that she, as the party, did not want a trial and complained that her counsel and insurance carrier were continuing to defend the case.

What steps should a lawyer take when receiving such an email?

The relevant rule in Florida is Rule of Professional Conduct 4-4.2 (Communications With Persons Represented by Counsel): “…a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter [unless the other lawyer consents.”  In Florida, the Rule applies “even though the represented person initiates or consents to the communication” (see Rule Comments).

The facts described above occurred in Denise Engstrom v. Rebecca Harsten Goodman et al.  Washington State’s rule 4.2 appears similar, if not identical, to the Florida rule.  The court held that the lawyer should not have continued communications with the party (which included several steps of further communication, including getting the defendant to sign an affidavit).  The court held the appropriate steps would be to cease communication as well as advise opposing counsel and/or inform the court.

Florida lawyers are reminded that the Rules of Conduct are always available online at FloridaBar.org (more specifically, here) and also available in a free iTunes app (link, here).

Smart Lawyers, Dumb Passwords

Do you use passwords such as “password,” “loveyou,” or 1234567?  Apparently most of us do.  Even if you have a pretty good password plan for multiple Internet accounts, check out this month’s article, “Smart Lawyers, Dumb Passwords” in the Palm Beach County Bar Association Bulletin (April 2011).

The Woes of Citing Wikipedia in Court Pleadings

In a federal court case out of Kentucky, defense counsel reportedly cribbed portions of the brief from… Wikipedia.  And then from a Federal Judicial Handbook.  Both times without proper citation.

Before getting to the orders, we note the case has the narrowest connection to Florida.

In a February 2011 order, the court wrote:

The court notes here that defense counsel appears to have cobbled much of his statementof the law governing ineffective assistance of counsel claims by cutting and pasting, withoutcitation, from the Wikipedia web site. Compare Supplemental to Motion for New Trial (DN 199)at 18–19 with http://en.wikipedia.org/wiki/Strickland_v._Washington (last visited Feb. 9, 2011).The court reminds counsel that such cutting and pasting, without attribution, is plagiarism. Thecourt also brings to counsel’s attention Rule 8.4 of the Kentucky Rules of Professional Conduct,which states that it is professional misconduct for an attorney to “engage in conduct involvingdishonesty, fraud, deceit or misrepresentation.” SCR 3.130(c). See also In re Burghoff, 374 B.R.681 (Bankr. N.D. Iowa 2007) (holding that counsel’s plagiarism violated identical provision ofIowa Rules of Professional Conduct). Finally, the court reminds counsel that Wikipedia is not an acceptable source of legal authority in the United States District Courts. (emp. added)

Thereafter, in an April 2011 order, the same mischief re-appeared:

As the United States points out, defendant’s counsel has apparently continued with thismotion his practice of copying, without sufficient attribution, substantial portions of other works intohis own. The court noted in its February 9 Memorandum Opinion that defendant’s counsel had cutand pasted a portion of his brief from the web site Wikipedia. It has now come to the attention ofthe court that portions of the defendant’s motion for release pending appeal appear to have beencopied from a Federal Judicial Center handbook on the Bail Reform Act of 1984. Compare Motionfor Release Pending Appeal (DN 244) at 5, 10–11 with DAVID N. ADAIR, JR.,FED. JUDICIAL. CTR.,THE BAIL REFORM ACT OF 1984 39–40, 41–42 (3d ed. 2006). The court reminds counsel that it isinappropriate to repeat, verbatim, substantial portions of other works in a manner that makes suchwork appear to be the brief writer’s own. The court also reminds counsel that the proper way to citequotations of source material is by a direct citation to the source, not through use of a “see also”signal at the end of a lengthy string citation. See THE BLUEBOOK: A UNIFORM SYSTEM OF CITATIONR. 1.2(a) at 54 (Columbia L. Rev. Ass’n et al. eds., 19th ed. 2010) (explaining that no signal is used“when directly quoting an authority,” whereas the “see also” citation is used when “[c]ited authorityconstitutes additional source material that supports the proposition.”).

Keith Lee, at An Associate’s Mind, beat everyone to the Citations-to-Wikipedia debate with this post, where he found instances where Wikipedia was cited as an appropriate source.

While we are crediting our sources, check out this ABA Journal article, which caught our attention.  Make sure you read some of the helpful and creative comments by other readers.  We too have to credit the Legal Writing Prof blog, and its commentators, who provided the cites as well as some insights.

Finally, one person who commented on the ABA Journal article raised this 2008 article from Trial, Courting Wikipedia.

Florida Paralegal Ethics

Thanks to the Paralegal Association of Florida for inviting me to speak at their 2010 Fall Seminar in West Palm Beach.

The powerpoint can be found here or using the link under “Materials” on the right column of this website.

The free legal ethics iPhone app is here.

Florida JEAC Opinion Allows Judicial Assistants to “Facebook Friend” Lawyers

We previously mentioned the infamous? Judicial Ethics Advisory Opinion 2009-20 which prohibits a judge from “friending” lawyers who appear before the court.  That’s so 2009.

The next logical question for judicial social networking policies has arrived: does this apply to the JA?

Yes, at least in part.  A judicial assistant can friend lawyers who appear before the court.  However, the limitations may devour the rule here.  The JA cannot post anything which makes “reference to the judge or the judge’s office…”  and the posts must be “outside of the judicial assistant’s responsibilities and independent of the judge…”  Given the frequency that people use Facebook at work (including listing where they work in their profile) and the amount of time we all spend at the office, those prohibitions seem fairly high.

JEAC Opinion 2010-04 goes on to note that any lawyer who attempts ex parte communication with the JA via social networking sites should have their head examined and should be de-friended and reported to the judge.

False YouTube Ad and Padded Resume Leads to Reprimand of Florida Judge

The Supreme Court of Florida commanded Leon County Circuit Court Judge Angela Dempsey to appear for a public reprimand due to (1) a YouTube election advertisement entitled “re-elect” when she had been previously appointed to the bench and (2) a flyer claiming she had 20 years of legal experience when she had been admitted to practice in 1994.  According to the opinion, she admitted the allegations which the Court concluded “was done for the purpose of bolstering her own experience and credibility to the voting public.”

In August 2008, Judge Dempsey won by nearly 60% of the votes.

We could not find the YouTube video with the title “re-elect” but we did find this election ad.  At least one website suggested that the video title was written by the judge’s campaign manager without her knowledge.  Another website suggests that “re-elect” is an appropriate term under election laws.  However, the YouTube ad coyly mentions “18 years” in an incomplete sentence while the remainder of the advertisement focuses on “experience” — even challenging others for how they “talk” about experience.

This article points out that, in 2008, the judge had 14 years of experience NOT 20 years or even the “18 years” mentioned in the video.  Looking at Judge Dempsey’s attorney profile, she graduated from law school in 1993.  Presumably, that means she entered law school in 1990 right after college.  Is she is calculating “18 years” beginning the moment she stepped in law school?  Given that the voiceover simply says the words, “18 years,” with nothing more, the viewer may be left to assume she’s been a member of the Florida Bar for 18 years.

While on the topic of peering into a candidate’s questioned resume, one might wonder if there is a gap of time between her 1993 graduation and 1994 bar admission.  Also unclear is how she lists her work as an assistant state attorney beginning in March 1994 when she was not admitted to practice until May 2, 1994.

The Supreme Court did not specifically indicate if a campaigning judge could pack in time during law school as legal experience.

JEAC Enters Ethics Fray Over Judges and Facebook… But Florida Wasn’t the First

As has been recently well-hyped, there are certain restrictions on Florida judge’s use of social networks.  It apparently took awhile for everyone to notice a November 17 Judicial Ethics Advisory Committee report but once the New York Times got a hold of it nearly a month later on December 10, the Florida media kicked it into gear with front page coverage the next day in the Daily Business Review (and other publications).  But South Carolina had quietly already jumped into the fray.

While we were expecting some evidence of Internet fear and misunderstanding, both panels appear to have a reasonable grasp on both the zeitgeist of the new media and the purpose of arcane legal rules.

According to Florida JEAC, judges are not supposed to openly “select” and identify friends since the concern is that this creates the appearance that the “friend” sits in a special position.  A minority on the panel apparently felt that the word “friend” has been bent so far (from noun to verb to… nothing) that the implication isn’t there.  However, consider a situation where you are first appearing before a judge only to learn that your jurist is a (published) Facebook friend of your opponent.  Depending upon how heated your case gets, the ugly implication will roost somewhere in your mind.  Or your client’s.

Anyone can be a “fan” of a judge’s page since that does not involve the jurist making a selection.  Again, as the committee wrote, “to the extent that such ["friending"] identification is available for another person to view, the committee concludes that this practice would violate [judicial rules].”

If it sounds a bit heavy-handed, judges knew going into their situation that they would suffer some unusual social burdens and restrictions, as warned under Canon 5a.  Likely, there are far more sticky situations than Facebook.

But, judges can be friends with non-lawyers and lawyers who do not appear before them.  Additionally, judges can be associated with lawyers in other Internet groups, as long as the judge is not selecting/de-selecting the public association.

The South Carolina Judicial Department likewise has some opinions.  In their October 2009 opinion, which received virtually no press until after the Florida story broke, judges may be members of Facebook and be friends with law enforcement officers and employees of the Magistrate as long as they do not discuss anything related to the judge’s position.

How did Florida and South Carolina beat everyone to the punch on these techno-legal issue?  One would expect New York or California on the cusp of this one.

Can You Twitter from a Courtroom?

The answer is a mixed bag, with the least favorable outcomes in federal court under the Federal Rules of Criminal Procedure.

In a recent federal criminal case in Georgia, the Judge in U.S. v. John Mark Shelnutt wrote that, “the request to ‘tweet’ from the courtroom is denied.  According to the 4-page opinion, Rule 53 prohibits photographs and “broadcasting” from inside the courtroom.  The court acknowledges that “broadcasting” usually refers to TV or radio, it relied on Webster’s to broadly define broadcasting as widely disseminating information.  3733948174_b215e57968

Stated in more federal court-like manner, the judge concluded that contemporaneous transmission of electronic messages of courtroom activities intended to be widely and instantaneously accessible was impermissible broadcasting.  Our thanks to the ABA Journal Mobile for the scoop.

Contrast the foregoing with a Kansas federal court judge or a more recent Colorado state court judge.

We note, at least locally, Palm Beach Post reporter, Susan Spencer-Wendel, covers trials via Twitter.

Can a Lawyer Get a Copy of a Transcript Without Paying Court Reporter? (The Debate Continues)

There is often an unspoken understanding that lawyers who attend hearings which are transcribed need to pay the court reporter to get a copy.

Thus, if there are 10 parties to a lawsuit and everyone wants a copy of a 15-minute hearing transcript, court reporters often take the position that the party ordering the transcript pays an “ordering fee” and all nine other parties then pay lesser, but still pricey, fee for “copies.”  Pricing varies from court reporter to court reporter, but often a “copy” of a transcript is not at the Kinko’s-level copy charges of 5-10 cents per page.  It’s often over $1 per page, perhaps significantly so.stenograph

We touched upon this issue in an earlier post where we discussed posting deposition videos on YouTube (which also skirted the issue of sharing expert depositions).  A subtle theme in that “white paper” at issue in the prior post was that some court reporters lay a claim to transcripts.  Given that court reporters put in long hours in that boring deposition which was meaningful only to you and produce quality work, you can see the reasonable origin of their thinking.  But the law may not be on their side.

The Tenth Circuit Court of Appeal issued an unpublished opinion on this very same issue, specifically a battle over about $4,000 in court reporter fees.  As the court warns, that order is not precedent but simply persuasive for non-party court watchers.  The case is United Transportation Union Local 1745 et al. v. City of Albuquerque.

The case involved an overtime dispute between employees (union) and employer (city).  Of note, that claim is a statutory one which includes a right to attorney’s fees.  During litigation, hearings before a special master occurred and the City order the transcripts.  The plaintiff lawyer did not order a copy.  Instead, he sought to have the court compel the City to file the transcripts so he could pay the clerk of the court regular photocopy charges for the transcript rather than pay a higher fee charged by the court reporter.  That was denied.  He then obtained the transcripts by making a public records request (presumably, these transcripts were not time sensitive).  Clever.  Again, that way he would pay the City for their photocopy charges and avoid paying a higher charge to the reporter.

Bottom line: the court held that the court reporter could not demand a fee under the circumstances.

The court wrote, “We have found no authority to justify requiring plaintiffs… to pay a fee to a court reporter for transcript copy the reporter did not make but, rather, that they legally obtained from another source by independent means.  On the contrary, both broad principles and particular holdings undermine the notion that court reporters may demand a ‘missed fee’ whenever someone obtains a copy of a transcript that can be traced back to an original transcript the reporter had made — and was paid for making — for someone else.”

The court went on to note that a court reporter does not have a copyright since they are not the authors of the transcript.  That said, there was some precedent that a party cannot be compelled to produce transcripts in discovery in the same case.  Also not addressed is whether there might be a contract between the ordering party and the court reporter agreeing that there is no copying allowed… whether filing the transcript would alleviate that concern is unclear.

We’re of mixed minds on this issue, not so much in terms of the strict legal rights but in what is fair under the current market methods.  It seems an unnecessary windfall for a court reporter to charge a “reporter rate” for a transcripts as well as a heightened rate for copies (see the example above, where an original and nine copies are ordered — which could run hundreds of dollars).  That said, would it be “unfair” to have one ordering party and then they fire off nine copies for the other lawyers?  Or would this simply lead court reporters to increase the cost of the ordered copy?

As the 10th Circuit order is not precedent, it certainly will not end the issue.  Lawyers quietly pass these costs along to clients and typically do not want to make waves with friendly court reporters.  But, just as the billable hour is not always a reliable system for lawyer work, the “original/copy” pricing system does not seem a perfect fit for quality court reporter services.

Thanks to the ABA Journal (10th Circuit: Court Reporter Not Entitled to Fee for Copied Transcript) and the Exclusive Rights blog for the great scoop.

For related stories, take a peek at the Court Reporting blog.

Privileged Documents Sent to Expert Not Waived?

Because so many people are involved in the everyday step of sending records from a law office to an expert, the mistake of inadvertantly including privileged information occurs now and again.  Is it waiver?  Will the jury see it?

In Nan H. Mullins, D.M.D. v. Alice Tompkins (Benton, Webster and Roberts),  the unfortunate defense counsel faced this discovery catestrophe and it lead to an appeal.  In this case, the defense expert received a copy of defense counsel’s evaluation letter sent to the defendant and insurance company as well as emails between defendant and lawyer.handoff

The court held that the documents were ordinarily privileged and that mere accidental production does not automatically waive the privilege, see Fla.R.Civ.P. 1.280(b)(4)(B).  Since, here, the expert testified he never read nor relied upon them, there was no breach and no reason for disclosure (although we are curious how this was not caught during the expert’s review of what was sent to him and the lawyer’s pre-deposition conference).

The Panel further pointed out that even if it was discoverable, it may not be admissible to be paraded in front of the jury.

Can You Post a Video Deposition on YouTube?

The Internet has invigorated questions about depositions which has laid fairly dormant for years: who “owns” a deposition video or transcript?  Is it public record?

Ever considered posting a video deposition on YouTube?  Is that allowed?  A quick search suggests there’s more than two thousand video depos on YouTube.

We’re not impressed that these questions have been squarely answered but the Merrill Corporation has done a fairly tidy job summarizing the issue in their essay, “Is that Me on YouTube?  Ground Rules for Access, Use and Sharing of Digital Depositions.”

We won’t summarize Merrill’s work but add these thoughts:

1.  The Court likely does not “own” the deposition transcript/video but clearly has control over it.

2.  Filing the transcript/video in the court file makes it public record.  Filing it before using it elsewhere seems like a threshold step to avoid lengthy questions as to what is or is not public record.

3.  I’m not impressed with the idea the court reporter owns the transcript.  Again, there is little to no law on point but I think the requesting attorney hired the reporter for a job and gets the benefit of the work product.  I also mention that, under FRCP 30(f)(3), the reporter can be ordered who can get a copy.   That suggests the reporter plainly doesn’t own the transcript free and clear.

4.  The question of the right to distribute seems to come down to (a) is it filed with the court, (b) is there a danger of impairing law enforcement or judicial efficiency, (c) privacy interest of those resisting disclosure, and (d) nature/degree of injury to party if information is released.  Here in Florida, there is a trend towards more open invasive discovery and clamping down on the distribution of public record information seems counterculture to Florida legal theories and trends.

5.  Merrill notes some interesting potential privacy violations if the transcript includes HIPAA, drug, alcohol or mental health treatment.

6.  Merrill also casts a shadow over the practice of sharing expert deposition transcripts (for the reasons in #5) but cites no case or instance where that ultimately became a legal issue.

7.  Suggestions?  File the video or transcript with the court and, if you’re going to distribute on YouTube or elsewhere, consider distributing edited snipets.

How Should A Judge Instruct A Jury Not to Text, Twitter or Google?

Look no further than our brethren in Michigan, who hustled out a June 30, 2009 order providing the anti-Twittering jury instruction for trial judges.  The rule goes into effect in September.

twitterfedup

No, it may not be required here in Florida yet, but isn’t it a good idea?  Why not offer to the judge for your next trial?

Would the other side actually disagree?

The rule is here.  The Detroit Free Press article is here.

Lawyer Cannot Ask Paralegal to “Facebook Friend” A Witness

After the flood  of attention which lawyers and the media have recently paid to social networking sites, the next logical emphasis will be the ethical use, and mis-use, of such sites by lawyers.

Trying to jump start that inquiry, in Internet Social Networking Sites For Lawyers, we hinted at the risks of Facebook-friend’ing prospective jury members (improper contact under Rule 4-3.5) and we raised concerns about the use of social networking sites being deemed as advertising violations (Rules 4-7 and 4-15).  Indeed, in a recent presentation, we even discussed whether a law firm could revise and tailor its website prior to trial.  We also proposed to a paralegal group that they could not anonymously send Facebook-friend requests to jury members.

But we were clearly not thorough nor quick enough.  The Philadelphia Bar Association Professional Guidance Committee hustled out its Opinion 2009-02 which held that a lawyer could not ask a “third person” (presumably a paralegal or office employee) to Facebook-friend a deposition witness so the lawyer could surreptitiously access the witness’ Facebook page.

For the uninitiated, the default setting on a person’s Facebook page is that only invited/permitted users can see the page.  To gain access, a user needs to send a “Facebook friend request.”  That request usually is accomplished by clicking a button which says “send Friend request.”   There is a discreet link which says “Send a Personal Message” where the pursuing user can enter a greeting or identification or some kind but, at least anecdotally, this is rarely used.  The receiving user can see the name, picture, and a brief description of the person sending the friend request.  That person can then “confirm” or “ignore” the request.  For a good summary of this process, look here.

Here, the lawyer believed the deponent had information on her web page and somehow believed she would accept just about anyone as a Facebook friend (presumably there was some discussion as to the number of Facebook friends or her Facebook practices).  In person, the lawyer did not ask to be a Facebook-friend.  Instead, the question was raised whether the lawyer could properly have a third person send the request — a person who the witness would likely not be able to identify as someone associated with the lawyer.  The obvious intention was that the Facebook-promiscuous user would blindly accept the friend request, thereby giving the lawyer access to the page.

The Philly Bar concluded that this was improperly deceptive under their Rule 8.4, which is nearly word-for-word identical to Florida Rule Regulating the Florida Bar 4-8.4.

First, the lawyer was responsible for the acts of the third person since the lawyer was asking for and ratifying the conduct.  Second, the lawyer was purportedly “engag[ing] in conduct involving dishonesty, fraud, deceit or misrepresentation… because the planned communication by the third party with the witness is deceptive [because] it 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 sharing it with the lawyer for use in a lawsuit to impeach the testimony of the witness.”

Unlike that Bar, we note that Facebook friend request typically do not involve an explanation / introduction and question whether this is truly “hiding” information.  Then again, in a non-virtual world example, a lawyer asking another person to cozy up to a witness at a bar to get information seems improper.  Your thoughts?  Comments welcome below.