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Communication and the Internet

Communication and the Internet. What You (and Others) Say May Be Used Against You in a Court of Law… David Hricik Mercer Law School. Coverage. Papers. Presentation. Linking Social networking Informal investigations Adventures in e-mail Web tracking Metadata – recipient duties.

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Communication and the Internet

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  1. Communication and the Internet What You (and Others) Say May Be Used Against You in a Court of Law… David Hricik Mercer Law School Mercer Law School

  2. Coverage Papers Presentation Linking Social networking Informal investigations Adventures in e-mail Web tracking Metadata – recipient duties • Linking to and from law firm web sites • Social networking sites • Unsolicited e-mail and voice-mail • Adventures in e-mail • Informal investigations on the internet • Web tracking • Metadata Mercer Law School

  3. Linking to and From Websites Keep the materials in mind when we address social networking sites…. Mercer Law School

  4. Linking: A Building Block for Understanding Social Networking Sites Linking to Lawyer’s Page Linking From Lawyer’s Page Can you link to a site that says something that you could not ethically say? If not, what should you do? • Is the lawyer responsible for statements made by third parties that the lawyer could not ethically make? • If so, what should you do? Mercer Law School

  5. Are You Your Clients’ and Friends’ and Everyone Else’s Keeper? • When a third party links to a lawyer’s site and the lawyer is aware of the link, what obligations does he have? Mercer Law School

  6. The Bar Opinions So Far • Bare links with no description or commentary • Fine • Third party makes comments that the lawyer ethically could make • Fine • Third party makes statement lawyer could not make: • Unethical if lawyer induced or otherwise assisted third party in effort • Unethical if payment made • What if lawyer not involved at all? Mercer Law School

  7. Independent Third Party Links Why it should be okay Why it might not be Client linkers Non client linkers • Third party’s 1st Am. Rights • Third party not bound by lawyer ethics rules • Third party not induced by lawyer so lawyer not violating rule Mercer Law School

  8. Client Linkers: OH & SC Opinions Step One Step Two If client refuses to make change, lawyer should “give consideration to withdrawal.” • Lawyer should “counsel” the client about any omission or error Mercer Law School

  9. Nonclient Linkers: No Opinion, Yet There is no Step One There is no Step Two Can’t seriously consider withdrawal because there is nothing to withdraw from. • Can’t “counsel” non-clients because of Rule 4.3 Mercer Law School

  10. The Flip Side? • Can a firm gratuitously post something on its webpage and link to another lawyer that would violate the ethical rules if made by that lawyer? • If the information is negative and confidential? • One opinion: yes. • If it’s praise? • Same issues as third-party posts; firm has 1st Am. rights and rules don’t seem to be violated, but risky. Mercer Law School

  11. What to Do • Obviously the firm needs to (and presumably does) have a policy in place about what it links to. • If you become of a link to the firm’s site that concerns you, raise it with firm. Mercer Law School

  12. Social Networking Sites “Linking” issues and more Mercer Law School

  13. What is a social networking site? • Classmates • Facebook • LinkedIn • Plaxo • MySpace • Probably a ton more. Mercer Law School

  14. What Some Allow • You can post status about what you’re doing • You can read your “friends’” status • You can “recommend” people, and they can recommend you – and this information is posted. • You can find out whether someone you know knows a particular person • You can search for people, expertise, etc. Mercer Law School

  15. The Good and the Bad The Bad The Good Potential ways to investigate opposing counsel, witnesses, and third parties • Potential problems much like linking, and beyond Mercer Law School

  16. The Bad: What You Write • All information relating to the representation of a client should be treated in confidence. • Internet is one big elevator • Avoid posting or twittering about client matters • Some judges have banned posting during trial Mercer Law School

  17. The Bad: What You Write Static Social Network Page Interactivity Potential for: Embarrassment State law tort claims Improper solicitation in person solicitation Chat Potential for improper “targeted” mailing E-mail Potential for UPL Potential for inadvertent conflicts and attorney client relationships • Advertising rules likely apply. • No false or misleading statements, including comparisons that can’t be substantiated • If you “invite” e-mail or contact about a problem, special issues • State law tort claims likely apply to disparaging statements Mercer Law School

  18. Your Musings On-Line Posts are Not Private and Oral Interactions: Conflicts of Interest and Liability Mercer Law School

  19. Embarrassment • Lawyer wrote on blog that judge was an “evil, unfair witch.” • Reprimand and fined • Lawyer posted about her boss, “Judge Clueless” • Lost job of 19 years • Judge Kozinski posted “art” on his site • Google it. • Judge communicated with friend-defense counsel through Facebook and Googled plaintiff. • Reprimanded Mercer Law School

  20. The Flip Side? • Can something you say about a lawyer be used against you? • If the information is negative and confidential? • One opinion: yes. • If it’s praise? • Same issues as third-party posts; firm has 1st Am. rights and rules don’t seem to be violated, but risky. Mercer Law School

  21. Pre-AC Disqualification: Rule 1.18 Rule 1.18 & Common Law The Risks You could receive information that could disqualify your firm from a representation • A person who in good faith discusses forming an AC relationship gets many of the same protections as a former client Mercer Law School

  22. Providing Legal Advice UPL Forming AC Relationships Giving legal advice can create attorney client relationships Liability Togstad Conflicts • Going much beyond generalized legal discussion risks UPL • Low risk • No precedent Mercer Law School

  23. Improper Solicitations Asynchronous E-mail Synchronous May be treated as in-person solicitation and so prohibited, unless fall into narrow exception Chatrooms Blogging/posting at same time as third party • Targeted e-mails are generally viewed as letters so must comply with those rules • “Advertisement” Mercer Law School

  24. Static Third Party Posts South Carolina Opinion South Carolina Opinion You should not “allow publication of” improper testimonials. How do you do this? Client Nonclient • You may solicit endorsements that comply with state ethics rules as if you made them • You cannot solicit improper endorsements or recommendations Mercer Law School

  25. Much Like the Linking Opinions • Bare mention with no description or commentary • Fine • Third party makes comments that the lawyer ethically could make • Fine • Third party makes statement lawyer could not make: • Unethical if lawyer induced or otherwise assisted third party in effort • Unethical if payment made • What if lawyer not involved at all? Mercer Law School

  26. Some Kind Words About a KLG Lawyer Mercer Law School

  27. Is LinkedIn Just a Link? • If so, must you stop unethical recommendations? Mercer Law School

  28. The Good Social Networking Sites are Great Resources for Investigating Others Mercer Law School

  29. Suppose They’ve Hired an Expert… Mercer Law School

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  31. How Can I Learn More? Mercer Law School

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  35. Limitations on Investigations • Oregon website opinion • 4.2: No ex parte contacts • 4.3: Fair to unrepresented persons • Facebook Opinion from Pennsylvania • 8.4: no dishonesty Mercer Law School

  36. And Remember • If you can investigate them, they can investigate you. Mercer Law School

  37. What to Do • Remember the persistence of posts and assume they are public and permanent • If third party posts concern you, consider what you can do • Let your clients know that social networking sites can be used against them • Remember that ethical rules apply on-line, too Mercer Law School

  38. Adventures in E-mail • Misdirection: auto-fill and other errors • Mobile lawyers: which law applies to privilege waiver? • Clients using third party computers to email lawyers • Protecting your clients • Investigating opposing parties Mercer Law School

  39. Misdirection • Ripped from today’s headlines… • It still happens to the best of us Mercer Law School

  40. Privilege Waiver • Misdirection: in some states, misdirection waives privilege even if inadvertent and despite reasonable care. • Traveling lawyers beware! Mercer Law School

  41. Third Party Computers and E-mail The Issue The Resolution Multi-factor test being used • If a client e-mails her lawyer by using a computer owned by her employer who has effective policies in place stating that e-mails are not confidential, is privilege waived? Mercer Law School

  42. Third Party Computers • Three issues from one problem: • Protect your litigation clients • Consider if opponent waived privilege by using third party computers • Waiver even if your client doesn’t own the computer? • Ensure your transactional clients have good policies in place Mercer Law School

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  44. What to Do • Forward, reply to all, reply… • Be sure your clients are not waiving privilege • Advise your clients to adopt policies and procedures that meet the developing guidelines • Check whether opposing parties are using third party computers • Cases so far involve employer v. employee disputes • But no apparent reason why waiver would not apply as to third parties. Mercer Law School

  45. Tracking • Wired Magazine reports that Adobe Flash (ubiquitous) allows for gathering of substantial personal information! Mercer Law School

  46. Metadata Here, IT Takes Care of it… Mercer Law School

  47. What About • Your client • Your home computer • Your pda… • There will be mistakes… Mercer University School of Law

  48. Is transmission of metadata in a file like inadvertently faxing a privileged document? If so, then rules and bar opinions that require notifying the sender of the inadvertent transmission apply Recipient’s Duties Mercer University School of Law

  49. The Metadata Divide • Bar associations disagree on • whether the recipient can look to see if metadata is there; • whether the recipient has to notify the sender of its presence; • whether the recipient-lawyer, or her client, decides what to do about receiving metadata. Mercer University School of Law

  50. Rule 8.4 • It is professional misconduct to engage in conduct involving “dishonesty, fraud, deceit or misrepresentation.” • Is it “dishonest” to look for metadata? Mercer University School of Law

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