Social Media in Litigation Part 4: Jury Research

Social Media in Litigation Part 4: Jury Research

When I worked on my first jury trial, there was no Facebook and no iPhone. Ricky Martin was rocketing up the charts with Livin’ La Vida Loca. We nervously awaited the arrival of Y2K, but at least we didn’t have to worry about someone on the jury live-tweeting updates about the trial.

My how times have changed.

Previously on Five Minute Law, we looked at the ethical issues that arise from using social media for opposition research (Part 1), advising clients on their social media use during litigation (Part 2), and interacting with judges on social media (Part 3). In this final Part 4 we look at using social media to research information on members of a jury panel, before and during the trial.

The bottom line: monitor, but don’t communicate, and promptly disclose to the judge and opposing counsel if you discover jurors behaving badly.

Hypothetical 1: Jury Research Before Trial

To illustrate, let’s get back to our favorite fictional non-compete lawsuit, Paula Payne Windows v. Dawn Davis. Paula Payne’s lead counsel, John Laurens, is worried. He’s concerned about jury bias for the “little guy” against the employer. When he gets a list of the jury panel the week before trial, he tells his team “find the ones who think the system is rigged!”

His local counsel, venerable trial lawyer Hank Livingston, drives by the homes of several on the list. Two catch his attention: Marc Horger, a welder who has a “Come and Take It” assault rifle sticker on his massive pickup truck, and Scott Silveri, a freelance journalist who has a “Feel the Bern” sticker on his Prius. “Johnny, you need to get rid of these guys,” he tells Laurens, “they don’t like authority.”

Laurens also finds out that Judge John Lansing has a new program to encourage giving younger lawyers more courtroom opportunities: extra time for jury selection if you let an associate handle it. Laurens summons young associate Phil Hamilton to his office. “Bill,” he says. “It’s Phil, sir.” “Whatever. Phil, you’re handling this voir dire; but first find out everything you can about this jury panel.”

Phil starts by Googling each juror. Then he checks any publicly available info on LinkedIn, Facebook, Instagram, and Twitter. He sees that juror Alex Hart looks good for employers, at least on paper: 45-year old CPA, married with three kids, employed by the same company for 15 years. But Hart once liked a LinkedIn article titled “How Non-Competes are Killing Free Enterprise in America.”

Meanwhile . . .

Maria Reynolds, the lawyer for defendant Dawn Davis, is also snooping. She’s not satisfied with the jury pool’s publicly available social media, so she asks her very attractive legal assistant to start friending male members of the jury pool on Facebook. The assistant gains access to several non-public Facebook profiles by sending vague friend requests.

One thing is clear: these lawyers are walking through an ethical minefield.

Ethics of Jury Research

So, which of these would be an ethical violation?

(A) Phil checking publicly available social media

(B) Hank driving by a juror’s house, if the juror sees him

(C) Phil viewing a juror’s LinkedIn profile, if LinkedIn notifies the juror he did so

(D) Maria’s assistant sending deceptive friend requests

(E) Not investigating the jury pool on social media at all

Let’s start with the most obvious. There is so much wrong with (D), having an assistant friend members of the jury panel. First, a lawyer can’t communicate with a potential juror, period.[1] Second, a lawyer can’t get around this rule by having an assistant or third party do the dirty work .[2] Third, even aside from the prohibition on communicating with a potential juror, a lawyer can’t use deception to gain access to a private social media account.[3]

Avoiding an outright lie does not necessarily solve the third problem. As the Philadelphia Bar Association reasoned, failing to disclose the reason for a friend request is an omission that renders the request deceptive.[4]

It should also be pretty obvious that (A), checking publicly available information on jurors, is generally ok. ABA Formal Opinion 466 (2014) states the consensus view: a lawyer may view a potential juror’s publicly available social media content, as long as the lawyer doesn’t communicate with the juror.

(B) is a little harder. Driving by a juror’s house is not communicating with a juror, but could it be considered “vexatious or harassing”?[5] Driving by one time is probably ok, even if the juror happens to notice the lawyer. Driving by three or four times? That might cross the line.

Answer (C), viewing LinkedIn if the juror becomes aware of it, is more difficult. In Part 1, I opined that this is ok as to witnesses. But contact with jurors is more sensitive, and there is a difference of opinion on whether a lawyer can view a juror’s public social media if the social media platform alerts the juror that the lawyer has done so.

Two New York opinions saw this as an ethical problem. “If a juror becomes aware of an attorney’s efforts to see the juror’s profiles on websites,” the New York County Lawyers’ Association said in its Formal Opinion 743, “the contact may well consist of an impermissible communication, as it might tend to influence the juror’s conduct with respect to the trial.”[6]

Same for the New York City Bar. In Formal Opinion 2012-2 they said it would be a prohibited communication if a lawyer views a juror’s social media knowing that the juror will receive a notification that the lawyer has done so.

But the ABA has a different view. It said in Formal Opinion 466, “[t]he fact that a juror or a potential juror may become aware that a lawyer is reviewing his Internet presence when a network setting notifies the juror of such does not constitute a communication from the lawyer . . .”

The ABA reasoned that the notification is a communication from the social media platform, not the lawyer:

This Committee concludes that a lawyer who uses a shared ESM platform to passively view juror ESM under these circumstances does not communicate with the juror.  The lawyer is not communicating with the juror; the ESM service is communicating with the juror based on a technical feature of the ESM. This is akin to a neighbor’s recognizing a lawyer’s car driving down the juror’s street and telling the juror that the lawyer had been seen driving down the street.

Pennsylvania Bar Formal Opinion 2014-300 agreed with the ABA’s position.

I think the ABA got it right on this one, except for using the acronym “ESM.” Why do ethics opinions always have to make up terms that people don’t actually use?

But if you want to take the cautious approach, make sure you only view juror social media if you know the social media platform won’t notify the juror.

Finally, answer (E), not investigating social media at all, is the least tested of these issues. Investigating the social media accounts of the jury panel may be an ethical minefield, but failing to do any investigation could violate a lawyer’s duty of competence. Some will even say that it’s malpractice if a lawyer doesn’t find out what is in the jury panel’s publicly available social media.

And competent representation may also include continuing to monitor jury use of social media after the jury is selected and the trial proceeds.

Hypothetical 2: Jury Research During Trial

So let’s get back to our hypothetical non-compete case. Paula Payne’s lawyers strike Horger and Silveri, but Hart somehow manages to get on the jury. Phil Hamilton, the young associate, checks Hart’s Twitter feed after jury selection and sees that he tweeted: “Can’t believe I got picked for jury duty this week. Too much work to do!”

Reynolds, the lawyer for Dawn Davis, is also keeping tabs on social media. She tells her assistant to monitor the public posts of everyone who got on the jury. During the trial, they see a tweet from Hart: “The defense lawyer spent the last hour making the same point over and over. Someone shoot me now!”

Neither lawyer reports Hart to the judge. Phil doesn’t do anything differently, but Reynolds decides to tighten up her next cross exam to make it less repetitive.

So which of these things is an ethical violation?

(A) The lawyers monitoring a juror’s social media without permission from the judge

(B) Phil failing to report Hart’s “too much work to do” tweet

(C) Reynolds failing to report Hart’s “boredom” tweet

(D) Reynolds changing her trial strategy based on Hart’s “boredom” tweet

Answer (A) should not be a problem. Unless the judge has ordered otherwise, the lawyers don’t need to get permission to check what the jury may be saying on social media, and the duty of competent representation may even require that they do so.

(B) is borderline. Hart’s tweet lamenting his selection to the jury doesn’t really comment on the case itself. On the other hand, maybe it provides a clue about Hart’s state of mind and suggests an attitude about the lawsuit?

Failing to report an innocuous statement like this doesn’t strike me as an ethical violation, but the safer course would be to report it to the judge and opposing counsel. Plus, if the judge admonishes the juror for a harmless tweet at the start of the trial, it may prevent a more damaging tweet later.

(C) and (D) are likely to get Reynolds in hot water. If a lawyer finds that a juror has commented on something substantive about the case, the lawyer needs to promptly disclose that fact to the judge and opposing counsel.[7] And failing to disclose is even more dangerous if the lawyer uses the information to try to gain some advantage in the trial.[8]

Now that would be livin’ la vida loca.

___________________________________________________________________

head-shot-photo-of-zach-wolfeZach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation. His firm Fleckman & McGlynn, PLLC has offices in Houston, Austin, and The Woodlands.

These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.

[1] Texas Disciplinary Rule of Professional Conduct 3.06(b) (“Prior to discharge of the jury from further consideration of a matter, a lawyer connected therewith shall not communicate with or cause another to communicate with anyone he knows to be a member of the venire from which the jury will be selected or any juror or alternate juror, except in the course of official proceedings”); see also ABA Model Rule of Professional Conduct 3.5 (lawyer shall not communicate ex parte with a juror or prospective juror unless authorized to do so by law or court order).

[2] New York City Bar Formal Opinion 2012-2 (“Third parties working for the benefit of or on behalf of an attorney must comport with these same restrictions”).

[3] Texas Disciplinary Rule 4.01(a) (lawyer shall not knowingly “make a false statement of material fact or law to a third person”); ABA Model Rule 4.1 (same); see also New York City Bar Formal Opinion 2012-2 (“the attorney must not use deception—such as pretending to be someone else—to gain access to information about a juror that would otherwise be unavailable”).

[4] See Philadelphia Bar Association, Opinion 2009-02 (having a third party send a friend request to a witness “omits a highly material fact, namely, that the third party who asks to be allowed access to the witness’s 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”).

[5] See Texas Disciplinary Rule 3.06(a) (lawyer shall not “conduct or cause another, by financial support or otherwise, to conduct a vexatious or harassing investigation of a venireman or juror”).

[6] New York County Bar, Formal Opinion 743 (2011).

[7] ABA Formal Opinion 466 (“if a lawyer discovers evidence of juror or potential juror misconduct that is criminal or fraudulent, the lawyer must take reasonable remedial measures including, if necessary, disclosure to the tribunal”); New York City Bar Formal Opinion 2012-2 (“if a lawyer learns of juror misconduct through a juror’s social media activities, the lawyer must promptly reveal the improper conduct to the court”).

[8] See New York County Bar Opinion 743 (if lawyer learns of jury misconduct on social media, he must not unilaterally act on such knowledge to benefit the client but must promptly bring the misconduct to the attention of the court “before engaging in further significant activity in the case”).

Social Media in Litigation Part 3: Why Can’t We Be Friends?

Social Media in Litigation Part 3: Why Can’t We Be Friends?

Judge’s Facebook friendship with lawyer does not necessarily require recusal

As a Florida court recently acknowledged, everybody knows that Facebook friends are not necessarily close personal friends. That got me thinking of the classic song Everybody Knows by Leonard Cohen. The first verse:

Everybody knows that the dice are loaded
Everybody rolls with their fingers crossed
Everybody knows the war is over
Everybody knows the good guys lost
Everybody knows the fight was fixed
The poor stay poor, the rich get rich
That’s how it goes
Everybody knows

After that sunny beginning, the rest of the song takes an unexpected dark turn.

Getting back to the Florida case, the court in Herssein & Herssein v. USAA said the mere fact that a judge is Facebook friends with a lawyer for a party does not require recusal. The court reasoned that being friends on social media is not necessarily being friends in the “traditional sense.” Thus, the Facebook friendship “does not provide a basis for a well-grounded fear that the judge cannot be impartial or that the judge is under the influence of the Facebook ‘friend.’”[1]

Texas courts and the American Bar Association had already figured this out a few years ago.[2]

The conclusion seems pretty obvious, especially when you consider that, before social media, the fact that the lawyer and judge were FITS (“friends in the traditional sense”) did not necessarily require recusing the judge.

There ought to be a law . . .

That leads us to Wolfe’s First Law of Social Media Ethics: If it’s unethical to do it in a traditional way, it’s unethical on social media too.

Recently, the Texas Supreme Court Advisory Committee considered a proposal to write Wolfe’s First Law into the Texas Code of Judicial Conduct. They didn’t refer to my law by name or anything, but the resemblance is remarkable:

Proposal for Judicial Canon 4

This should not be too controversial. The only criticism I might have is that this proposal, which merely states the obvious, may be unnecessary. Wolfe’s First Law is nothing if not intuitive.

Still, I’m not saying that applying this general principle to specific cases is easy. Courts, bar associations, and lawyers across the country have struggled with thorny questions that arise from judges using social media. Let’s consider a hypothetical.

Previously on Five Minute Law . . .

Take our favorite fictional non-compete case, Paula Payne Windows v. Dawn Davis, where lawyer John Laurens filed suit to enforce a non-compete. After finding out the case was assigned to Judge John Lansing, Laurens hires local counsel, Hank Livingston, a venerable trial lawyer who “knows everybody.”

Oddly enough, Livingston and the judge happen to be FITS: Livingston was the best man at Judge Lansing’s wedding, and they go dove-hunting together near San Angelo every December. They’re also connected on LinkedIn, although Livingston doesn’t really know how to use it.

Meanwhile . . .

Laurens’ young associate, Phil Hamilton, is eager to impress his boss. Phil starts following Judge Lansing on Twitter and retweeting his tweets, which are mostly about barbeque and Texas A&M football. Phil also sends Judge Lansing a Facebook friend request, which the judge accepts without a second thought, adding Phil to the 3,000 friends he accumulated when he ran his last campaign. They like and comment on each other’s posts several times.

Laurens, on the other hand, still does things the old-fashioned way. He starts by filing a motion for a temporary injunction to prevent Dawn Davis from competing with Paula Payne Windows. After scheduling a hearing on his motion, Laurens shows up at Judge Lansing’s campaign fundraiser and hands him a check for $5,000. “Good luck with your campaign, judge, I know you’ll keep doing a great job.”

None of this goes unnoticed by Dawn Davis’s lawyer, Maria Reynolds. She gets aggressive and files a motion to recuse Judge Lansing based on his relationship with the lawyers representing Paula Payne.

Reynolds is careful not to impugn the judge’s integrity. Instead, she cites Texas Rule of Civil Procedure 18, which says a judge “shall recuse himself in any proceeding in which . . . his impartiality might reasonably be questioned.” It’s not a question of whether the judge will be impartial, she argues, but merely whether someone could reasonably question whether he can be impartial.

So what is the strongest ground for recusing Judge Lansing?

(A) The connection between the judge and local counsel on LinkedIn.

(B) The interactions between the associate and the judge on Facebook and Twitter.

(C) The fact that Paula Payne’s local counsel is the judge’s close personal friend and former campaign manager.

(D) The $5,000 campaign contribution Laurens handed the judge right before the temporary injunction hearing.

Unless you’re a member of Congress, I’m guessing the campaign contribution strikes you as the most egregious conduct here. (Everybody loves to pick on Congress.)  And you would not be alone.

Texas case law on campaign contributions

The defense lawyers in a little case called Texaco v. Pennzoil also had an issue with campaign contributions. After that suit was filed, Pennzoil’s lead counsel, Joe Jamail, contributed $10,000 to the presiding judge’s campaign fund. Texaco moved to recuse the judge, arguing that the contribution, coupled with Jamail’s service on the judge’s “steering committee,” created an appearance of impropriety.

A simplistic person might think the timing and amount of the contribution would at least create a situation where the judge’s impartiality “might reasonably be questioned.”

But the Houston Court of Court of Appeals took a more sophisticated view. It held that recusal was not required.[3] The court cited Rocha v. Ahmad, where the San Antonio Court of Appeals ruled that two justices who received thousands of dollars in political contributions from one of the law firms did not have to be recused.[4]

Funny thing about Rocha: it did not deny the obvious. The court did not deny that campaign contributions can create an appearance of impropriety. Instead, the Rocha court reasoned that campaign contributions cannot be a basis for recusing Texas judges, because then the judges would have to recuse themselves all the time: “If a judge cannot sit on a case in which a contributing lawyer is involved as counsel, judges who have been elected would have to recuse themselves in perhaps a majority of the cases filed in their courts.”[5]

The Texas Code of Judicial Conduct also bows to this practical reality. Canon 4(D) generally requires a judge to refrain from financial dealings that reflect adversely on the judge’s impartiality. But there is an express exception for soliciting campaign contributions. So, generally a Texas judge does not violate any ethical rule by accepting political contributions from lawyers who practice in his court.

And Texas courts have continued to follow Rocha’s lead. Ten years later, the El Paso Court of Appeals held that recusal was not required where the campaign contribution was small, the judge had a policy of accepting only limited contributions, and the contributing lawyer was not lead counsel.[6]

The Corpus Christi Court of Appeals even went as far as holding that recusal was not required where the lawyer was the judge’s close personal friend, the judge’s personal attorney in another case, and the judge’s campaign manager in his last campaign.[7]

By 2014 the Dallas Court of Appeals could accurately state that “Texas courts have repeatedly rejected the argument that campaign contributions by attorneys is grounds for recusal.”[8]

The Texas case law leaves open the possibility that the timing and circumstances of a political contribution to a judge could be so egregious that recusal would be required. But the general rule in Texas is that courts will bend over backwards not to require recusal based on campaign contributions. I haven’t seen a single case where a Texas appellate court required recusal on this ground. (Please tell me if you have.)

So what does this have to do with social media?

Texas law on contributions to judicial campaigns provides a helpful backdrop for questions about social media. If a lawyer can freely contribute to a judge’s campaign without fear of triggering recusal, it’s hard to see how any typical interaction between a lawyer and a judge on social media would create a sufficient appearance of impropriety.

No, when judges go wrong on social media, it usually involves something else: improperly commenting on a pending case before the judge. See John G. Browning and Justice Don Willett, Rules of Engagement, Texas Bar Journal (February 2016) (“judges shouldn’t discuss pending cases—period”). Generally, judges can freely interact with lawyers through social media, as long as they don’t use social media to do something they couldn’t do in a traditional way.

It’s Wolfe’s First Law of Social Media Ethics again.

And fortunately, there is a happy ending to the campaign contribution issue. The Texas legislature solved the problem in 1995 by passing the Judicial Campaign Fairness Act. Among other things, the Act provides that a judge may not accept a political contribution while physically present in a “courthouse,” which is defined to include a courthouse.[9]

That’s probably a good rule. There’s no appearance of impropriety when a lawyer hands the judge a check, as long as he does it at a fundraiser at Billy Bob’s BBQ and not at the courthouse.

Everybody knows.

___________________________________________________________________

head-shot-photo-of-zach-wolfeZach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation. His firm Fleckman & McGlynn, PLLC has offices in Houston, Austin, and The Woodlands.

These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.

[1] Law Offices of Herssein & Herssein v. United Servs. Auto. Ass’n, No. 3D17-1421, 2017 WL 3611661, at *4 (Fla. App. Aug. 23, 2017).

[2] See Youkers v. State, 400 S.W.3d 200, 206 (Tex. App.—Dallas 2013, pet. denied) (fact that judge was Facebook friend of victim’s father did not necessarily require recusal in criminal case); ABA Formal Opinion 462 (2013) (“Simple designation as [a social media connection] does not, in and of itself, indicate the degree or intensity of a judge’s relationship with a person”).

[3] Texaco, Inc. v. Pennzoil Co., 729 S.W.2d 768, 842-43 (Tex. App.—Houston [1st Dist.] 1987, writ ref’d n.r.e.). The case had the largest damages verdict in Texas history but famously did not go up to the Texas Supreme Court.

[4] Rocha v. Ahmad, 662 S.W.2d 77, 78 (Tex. App.—San Antonio 1983, no writ).

[5] Id.

[6] Aguilar v. Anderson, 855 S.W.2d 799, 802 (Tex. App.—El Paso 1993, writ denied).

[7] Lueg v. Lueg, 976 S.W.2d 308, 310-11 (Tex. App.—Corpus Christi 1998, pet. denied).

[8] Holland v. Friedman & Feiger, No. 05-12-01714-CV, 2014 WL 6778394, at *10 n.8 (Tex. App.—Dallas Dec. 2, 2014, pet. denied).

[9] Tex. Elec. Code § 253.039.

Social Media in Litigation Part 2: Cleanup Time

Social Media in Litigation Part 2: Cleanup Time

A senior lawyer once said to me that “practicing law would be great, if it wasn’t for the clients.”

It’s a joke, of course. Lawyers couldn’t practice law without clients, and the clients pay the bills. So we definitely appreciate our clients.

But there’s no question that practicing law would be easier if we didn’t have to worry about the bad decisions our clients sometimes make.

Take social media, for example. In Part 1 of this series, I talked about lawyers using social media to do opposition research, i.e. to dig up dirt on the opposing party. Ethically, that’s generally ok as long as you limit your research to publicly available content and you don’t “friend” or communicate with the other party.

That sounds fun. But guess what? The lawyer on the other side is busy doing the same thing to your client. So, before you start scrolling through your adversary’s Facebook photos, you may need to advise your client about her own use of social media.

Here comes the hypothetical.

The continuing saga of Paula Payne v. Dawn Davis

As we know from last time, Dawn Davis left her sales job at Paula Payne Windows to work for competitor Real Cheap Windows. After getting sued for violating her non-compete, Dawn Davis hires litigator Maria Reynolds from the law firm Burr & Associates.

Reynolds, who is naturally suspicious after 20 years of litigation practice, Googles her own client and is appalled at what she finds. Right there on Dawn’s public Facebook page, Reynolds finds photos of Dawn downing margaritas at Matt’s El Rancho with the head of Real Cheap, two months before Dawn resigned from Paula Payne. Reynolds fires off an email to Dawn: “Dawn, delete that photo from Matt’s now, and clean up your Facebook page ASAP!”

Fortunately, Reynolds’ young associate, Peggy Schuyler, sees this email and politely suggests to Reynolds, “rather than deleting the photo, maybe we just tell Dawn to make her settings private so the other side can’t see it.”

margarita-2242523_1920
What will opposing counsel find on your client’s Facebook page?

Meanwhile . . .

Paula Payne’s lawyer, John Laurens, is discovering that not every problem can be settled by committee. He’s been so busy working on his firm’s dress code committee that he hasn’t had much time to focus on Paula Payne’s lawsuit. After having an associate slap together an Original Petition (that’s what we call the Complaint in Texas), Laurens neglects to tell his client anything about social media.

Laurens doesn’t even realize that the president of the company, Paula Payne herself, has launched a tweetstorm against Dawn Davis and Real Cheap. The latest salvo from Paula: “Real Cheap steals employees and customers from Paula Payne Windows. Sad!”

What advice should lawyers give clients about using social media during litigation?

I sense a possible ethical violation here. But what is it? Which of these things will get a lawyer in ethical hot water?

(A) Advising the client to change her social media settings to make potentially relevant evidence private.

(B) Suggesting in writing that the client be cautious about using social media during the lawsuit and avoid posting anything that could be used as evidence against the client.

(C) Telling the client to stop using social media entirely while the lawsuit is pending.

(D) Instructing the client to remove a potentially relevant photo from Facebook but to send a copy of the photo to the lawyer to hold.

(E) Directing the client to “clean up your social media accounts” without any guidance.

(F) Failing to give the client any advice about using social media while the lawsuit is pending.

(G) Telling the client to delete a potentially relevant photo from Facebook, without saving a copy.

Seven choices! This is worse than the Property law final I had to take in my first year of law school. (Prof. Gerald Torres was a pretty cool guy, but his exam was ridiculous.)

But unlike the Rule Against Perpetuities, this issue is fairly intuitive. Based on the consensus emerging from ethics opinions across the US, the answers above are listed in order from most to least advisable.[1]

Answers (A) and (B) are not only ethical, but almost mandatory to meet the lawyer’s ethical duty of competence. Changing settings to private does not destroy or alter evidence, and telling a client to be cautious about what she posts is not telling the client to give false testimony. Plus, all lawyers these days should know enough about social media to give this basic advice.

wakeboarding
Defendant’s Exhibit 1?

I don’t see any ethical problem with Answer (C), telling the client to stop using social media entirely, but it seems like overkill. Social media has become an integral part of most people’s daily lives. Lawsuits can take years to resolve, and it would be unnecessarily onerous to tell a client she can’t use social media at all during that entire time.

Answer (D) is on the borderline. Remember that there is a legal duty to preserve relevant evidence. Whether that duty includes social media content may have been a novel issue back when MySpace was the next big thing, but it should be a no-brainer to everyone today. (Everybody loves to pick on MySpace.)

There are ethics opinions suggesting that a lawyer can advise a client to remove content from a social media account, provided that any evidence relevant to the lawsuit is preserved. So, for example, in a personal injury suit, you can remove that photo of the plaintiff wake-boarding the weekend after the accident, as long as you preserve a copy of the photo, which is likely to be requested in discovery.

But sometimes that won’t be enough to solve the problem. Suppose that the relevant evidence is not merely the photo itself, but the fact that the plaintiff posted the photo and commented on it. Or maybe there is a comment from a third party that is relevant. In those cases, preserving relevant evidence may require preserving the social media content itself. I suggest caution.

While (D) is debatable, it should be pretty obvious that Answers (E) through (G) can get you in deep doo-doo.

The only question here is whether I have (E) and (F) in the right order. Which is worse, giving a client bad advice to “clean up” her social media, or giving her no advice about social media at all? Remember that a lawyer has an ethical duty of competence, and claiming ignorance of social media is no excuse. See ABA Model Rule 1.1, Comment 8 (“To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology”). So giving no advice is only a little better than giving bad advice.

Finally, there is a technical legal term for Answer (G), telling the client to delete a potentially relevant photo from Facebook, without saving a copy: boneheaded.

Actually, the term is “spoliation,” which comes from the Latin word spoliare. Translated, it means “oh crap, Brutus, the judge is going to hammer us.” Deleting relevant evidence is intentional spoliation, which can lead to severe sanctions known, oddly, as “spoliation sanctions.”

And that’s a fate even worse than my first-year Property final.

___________________________________________________________________

head-shot-photo-of-zach-wolfeZach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation. His firm Fleckman & McGlynn, PLLC has offices in Houston, Austin, and The Woodlands.  

These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.

This post is dedicated to John Lennon.

[1] See Florida Bar, Advisory Opinion 14-1 (2015); Pennsylvania Bar Association, Formal Opinion 2014-300 (2014); Philadelphia Bar Association, Opinion 2014-5 (2014); North Carolina Bar Association, Formal Ethics Opinion 5 (2014); New York County Lawyers Association, Formal Opinion 745 (2013). I could say more about these opinions, but I really can’t improve on Dallas lawyer John G. Browning’s 2015 article You Tweeted What?, which thoroughly discusses them.

Social Media in Litigation Part 1: Opposition Research

Social Media in Litigation Part 1: Opposition Research

Top 100 legal BlogsTexasBarToday_TopTen_Badge_VectorGraphicI remember learning that quantum physics theorizes that observing a situation or phenomenon necessarily changes it. I have no idea why, but that sounds cool.

This reminds me of an ethical question that comes up in almost every lawsuit: can a lawyer view an opposing party’s publicly available social media profile and posts?  The consensus answer is yes, if the lawyer merely views publicly available information without communicating with the opposing party.[1]

Without communicating with the opposing party. There’s the rub. How do you know when viewing the target’s social media will alert the target that you are doing the viewing?

You knew there was going to be a hypothetical

Let’s take my favorite fictional non-compete case, Paula Payne Windows v. Dawn Davis. Dawn Davis leaves her window sales job at Paula Payne and goes to work for a competitor, Real Cheap Windows. Paula Payne hires lawyer John Laurens from the litigation boutique Hamilton & Associates, and Laurens promptly files suit against Dawn Davis and Real Cheap.

Naturally, one of the first things Laurens wants to do in the lawsuit is some opposition research. He wants to know who Dawn Davis and Real Cheap are and what they’ve been doing lately.

The problem is that generally a lawyer is not allowed to communicate with an opposing party who is represented by counsel. (Let’s assume that Laurens knows that Dawn Davis and Real Cheap have hired a lawyer to handle their dispute with Paula Payne.)

There’s a minor complication for corporate parties. Questions arise about whether the rule against communicating with a represented party applies to employees of a company. It’s safe to say the prohibition applies to high-ranking executives. Whether the rule applies to lower-level employees is more debatable.

But let’s put that issue aside. My hypothetical assumes that Laurens is not allowed to communicate directly with Dawn Davis or Real Cheap.

It should be pretty obvious that Laurens can’t send a friend request to Dawn or Real Cheap, and certainly not on false pretenses. It should also be obvious that Laurens can’t get around this rule by having an assistant or third party do the dirty work for him.[2]

But it also seems obvious that lawyers are allowed to look at public information available on the Internet.

What can lawyers do?

So which of the following is Laurens allowed to do?

(A) Google “Dawn Davis” and “Real Cheap Windows” and see what pops up

(B) View every page of Real Cheap’s website

(C) Look at Dawn’s public profile on LinkedIn

(D) View Dawn’s Facebook posts that are publicly available

pexels-photo-194446
Can a lawyer view an opposing party’s profile?

Surely there is nothing wrong with (A), Googling the opposing party’s name to see what information is publicly available. Same with (B). Just looking at a company’s website is not communicating with the company, right?

Answer (C), looking at Dawn’s public profile on LinkedIn, also seems innocuous at first glance.

But most of you have probably noticed that LinkedIn offers a “Who’s Viewed Your Profile” feature. As of the time I’m writing this, LinkedIn says here that the Basic (free) account allows you to view information about who has viewed your profile recently, while the Premium account allows you to see the entire list of viewers from the past 90 days.

This complicates things. If Dawn Davis can see that Laurens has viewed her LinkedIn profile, then Laurens may have crossed the border into prohibited-communication land.

The same issue can arise with (D). At press time, I don’t believe Facebook makes it as easy as LinkedIn does to see who has viewed your public profile or posts. But I’m sure there are ways that savvy Facebook users can do this, perhaps with the use of third-party software. Those of you who keep up with this sort of thing, please weigh in.

In any case, the fact that I’m not really sure how Facebook functions on this point just illustrates the problem. And even if I knew exactly how it worked, it could easily change tomorrow.

Creepy or convenient?

To avoid these complexities, I propose this general ethical rule: a lawyer can observe publicly available social media content of an opposing party, as long as the lawyer does not communicate with or harass the party through the social media platform, even if the party becomes aware of what the lawyer did.

I would analogize to a lawyer driving by an opposing party’s house.

Yes, millennials (everybody loves picking on millennials), there was a time before social media when litigators would drive by an opposing party’s home to get a little intelligence. What kind of neighborhood does he live in? Is the house expensive? How many cars parked in the driveway? What kind of cars? Bumper stickers? Any boats? Even in a digital age, these little analog facts might tell you something useful.

I don’t think anyone would argue that simply driving by an opposing party’s house is a prohibited communication–even if the party happens to look out the window and see the lawyer. Taking a quick look at someone’s recent social media posts—assuming they are publicly available—seems similar in principle.

Of course, there are also ethical limits on harassing people, and harassment is a little harder to define. Simply driving by someone’s house is one thing. What about slowly driving back and forth in front of their house ten times and staring at their kids playing in the front yard? At some point, observation can cross the line into harassment.

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Is LinkedIn out of bounds?

I think the same holds true for social media. At some point, a lawyer’s surveillance of publicly available social media content could become obtrusive to the point of being creepy. And it’s a more sensitive issue if we’re talking about investigating members of a jury pool, a distinct issue I will address in a later post.

But in general, I don’t think the mere fact that a party to litigation becomes aware that he is being observed by an opposing lawyer means that the observing is a prohibited communication with a party represented by counsel.

Where do we draw the line?

This view is not universal. I have seen the position that a lawyer cannot view an opposing party’s social media content if the observed person can see that the lawyer has done so. But if you’re going to take that position, where does it stop, where do we draw the line?

Remember Answer (B) about viewing a company’s website? We all agreed that was ok, right? Well I’m willing to bet that many companies have some sophisticated ways of determining who has viewed their website. Does that mean we’re going to say websites are off limits?

It seems too burdensome to place the burden on the lawyer to determine what kind of digital footprint she’s going to leave each time she views something that is publicly available on the Internet.

Technology changes. Social media sites constantly update their features and terms of use. People alter the settings on their social media accounts. This makes it impracticable to lay down fixed rules for lawyers like “you can view a public Facebook profile, but not a public LinkedIn profile.”

So if it were up to me, I would not prohibit John Laurens from viewing Dawn Davis’s public social media account just because Dawn might become aware she’s being watched. Let’s leave the “observer effect” to quantum physics. Whatever that is.

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head-shot-photo-of-zach-wolfeZach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation. His firm Fleckman & McGlynn, PLLC has offices in Houston, Austin, and The Woodlands. 

These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.

[1] See Oregon State Bar, Formal Opinion No. 2013-189 (2013) (lawyer may access publicly available information on a social networking website); San Diego County Bar, Legal Ethics Committee, Opinion 2011-2 (2011) (“Nothing blocks an attorney from accessing a represented party’s public Facebook page,” but the attorney may not make an ex parte friend request of a represented party); New York State Bar Association, Committee on Professional Ethics, Opinion 843 (2010) (lawyer may view the public Facebook or MySpace (!) pages of opposing party in litigation so long as the lawyer does not “friend” the other party or direct a third person to do so).

[2] I would have thought these were no-brainers, but there have been ethics opinions seriously grappling with these issues.  See the San Diego and Oregon bar opinions cited above.

Five Rules Texas Lawyers and Other Professionals Must Follow When Using Social Media

Five Rules Texas Lawyers and Other Professionals Must Follow When Using Social Media

Complying With the Ethics Rules for Texas Lawyers Can Actually Make Your Social Media Content More Effective

This week’s challenge: give Texas lawyers the key tips they need to use social media without violating ethics rules, while also giving non-lawyers tips on more effective use of social media for professional networking and business development.  My hypothesis is that complying with the ethics rules for Texas lawyers can actually make your use of social media more effective, whether you are a Texas lawyer, a non-Texas lawyer, or not a lawyer at all.

First a little background. If you follow me on LinkedIn or Twitter (see photos below), you know that last week I hit the road to Dallas to present “It’s Not Just for Millennials – How to Incorporate Social Media into Your Business Development Efforts Without Violating Ethics Rules.” I often speak to Texas lawyers about how to use social media in a way that complies with the advertising rules in the Texas Disciplinary Rules of Professional Conduct.

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I typically tell Texas lawyers there is good news and bad news for lawyers who use social media. The bad news is that the Texas ethics rules are both unclear and potentially onerous when applied to social media, the worst of both worlds. But the good news is that the Texas State Bar has issued interpretive comments that use some common sense to apply the poorly written ethics rules to social media. If you like details and need to be shown the backup, you can read the applicable rules, interpretive comments, and some brilliant commentary here.

But if you just want the bottom line, keep reading.

Tip #1: Use your social media posts to educate and inform your target audience, not to make a sales pitch

The Problem with the Texas Ethics Rules: They generally require all advertising to be filed with the State Bar’s Advertising Review Committee.  Promoting your experience or qualifications in a social media post that is available to the general public is advertising. But filing every tweet, status update, or post with the State Bar would be a huge pain.

Take for example Peggy Schuyler, a transactional lawyer who focuses her practice on handling commercial real estate deals. She could post “I’m proud to announce I’ve been named a 2016 Texas Legion of Justice Super Friend in Commercial Real Estate Law.” There’s nothing unethical about that, but it would be advertising that she would need to file.

Help from the Texas State Bar: Social media content that is “educational or informational” is generally not advertising.

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Why This is Actually Good for Lawyers and Other Professionals:   It’s usually more effective to show people your expertise than to tell people how great you are. Take Peggy, for example. Telling people about an award she won is probably better than nothing, but many firms post announcements like this, and they sound like advertising. Instead, what if Peggy posted a link to an article about the year’s top 10 commercial real estate transactions in her city? Her target audience will probably find that more interesting, and because it’s “educational or informational,” it’s not advertising.

Tip #2: Think about whether you really want or need the “call to action”

Lawyers can get “marketing” guidance from a wealth of literature from the world of sales. For example, my friend Drew Sanocki at Nerd Marketing is an e-commerce expert who knows all the hacks that can help online retailers increase their sales. Online marketing experts typically say your social media post needs to have a “call to action.” For example, they would tell Peggy to add, “Call me today if you or your client needs help with a commercial real estate transaction.”

The Problem with the Texas Ethics Rules: The “call to action” may be great sales advice, but it creates a problem for lawyers. When Peggy adds the call to action, she has just crossed the line into advertising. That means she needs to file her post with the State Bar.

Why This is Actually Good for Lawyers and Other Professionals: I feel like leaving out the call to action is good advice for lawyers and other professionals anyway. You’re selling professional expertise, not inexpensive razor refills. The call to action makes your post sound like just another sales pitch, and it doesn’t seem that necessary. People know they can hire you. In the history of the universe, has anyone ever read a lawyer’s social media post and thought, “I was thinking about hiring this guy, but he didn’t say he’s taking new clients, so I guess I’ll go somewhere else”?

Tip #3: Don’t overstate your role in good results obtained

The Problem with the Texas Ethics Rules: Taken literally, the rules prohibit a lawyer from stating a past success or “result obtained” if the lawyer was not lead counsel. So, for example, if I say in my social media profile that I “assisted” the trial team in the defense of a trademark infringement claim (which is absolutely true), the literal interpretation of the rule says this is a prohibited “misleading” statement, because I was not lead counsel.

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Help from the Texas State Bar: The interpretive comment says you don’t have to be lead counsel as long as you don’t “claim responsibility” for the result obtained. So my statement about “assisting” the trial team is fine, because I’m not claiming responsibility for the result.

Why This is Actually Good for Lawyers and Other Professionals: Have you ever read a lawyer’s list of results obtained and thought, “wow, that’s a lot of accomplishments for such a young lawyer”? Do you sometimes think, “I wonder if this lawyer’s role in these cases was not quite what he’s making it out to be”? When a lawyer overstates his or her role in past successes, it has the opposite of the intended effect. So this is another case where following the ethics rules will actually improve the effectiveness of your content.

Tip #4: Don’t compare yourself with other professionals in your field

The Problem with the Texas Ethics Rules: None. In this case, the rule is fairly clear and not that onerous: don’t state comparisons with other lawyers that cannot be supported with objective, verifiable data. This means that most opinions comparing yourself to other lawyers are off limits. You can’t say things like “we’re the toughest lawyers in town” or “we’re the best law firm in Texas if you want a big recovery.” (Let’s put aside the fact that this rule seems to be routinely ignored.)

Why This is Actually Good for Lawyers and Other Professionals: Tooting your own horn in comparison with other professionals in your field is not the best use of social media. Like the “call to action” discussed above, it sounds too sales pitchy. It’s all about you instead of providing valuable information to your audience. And talking down other people who do what you do is not a good marketing strategy for professionals. As with overstating your role in successful cases, it doesn’t inspire confidence; it just makes you look insecure.

Tip #5: Leave the opinions out of your profile on LinkedIn and other social media

I’ve noticed that the slicker and more professional law firm websites—the ones that you guess expensive marketing consultants helped prepare—tend to have this kind of statement:

Zach Wolfe is a tough, aggressive litigator who fights hard for the best possible outcome for his clients. He is dedicated to thoroughly understanding the problems faced by his clients and crafting creative solutions. Zach’s clients value his uncanny knack for persuading juries in even the most difficult and complex cases . . .

Marketing gurus must think this kind of thing is effective. Notice the heavy use of subjective opinions that are virtually impossible to back up with data.

I’m not a fan of this. I may get some pushback here, but hear me out. Not only is your profile better when you stick to the facts, leaving out the self-serving opinions may also help you avoid making your profile an “advertisement” required to be filed with the State Bar.

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The Problem with the Texas Ethics Rules: Warning, this one is a downer. Do you have a profile on LinkedIn? Does it describe your experience and qualifications as a lawyer? Is it accessible to the public? Have you filed the profile with the State Bar?

If you’re a Texas lawyer, I’m willing to bet you answered yes, yes, yes, and no. I have yet to meet a Texas lawyer who has filed his LinkedIn profile—or any other social media profile—with the State Bar.

This is a potential problem. If your social media profile is publicly accessible and describes your experience and qualifications, then technically it’s “advertising in the public media” that must be filed. “But no one does that!” you say. True, but good luck with the “everyone’s doing it” defense.

Help from the Texas State Bar: Sorry, no official help. In fact, the interpretive comment states explicitly: “Landing pages such as those on Facebook, Twitter, LinkedIn, etc. where the landing page is generally available to the public are advertisements.”

Why This is Actually Good for Lawyers and Other Professionals: For this one, it’s complicated. Texas lawyers have a range of unattractive options. You could take the ultra-cautious approach and change the settings on LinkedIn so your profile is only visible to your connections. But do you really want to hide your light under a bushel? Another option is to bite the bullet and file your profile with the State Bar, but that seems likely to open another can of worms.

On the other end of the spectrum, hakuna matata. You could just not worry about it, hoping that out of the thousands of Texas lawyers who have not filed their social media profiles, the State Bar won’t decide to make an example of you.

I tend to favor a middle ground: take the opinions out of your profile and focus on your basic contact information and practice areas. This kind of information is exempt from the filing requirement. This does not entirely solve the problem, because your profile will probably still have endorsements and recommendations, which don’t fall under any official exemption. But at least you have made a good faith effort to limit your profile to exempt information.

And your profile is better without the self-serving subjective opinions anyway, whether you are a lawyer or some other kind of professional.

Do you disagree? If so, I’d like to hear from you.

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head-shot-photo-of-zach-wolfe

Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation. His firm Fleckman & McGlynn, PLLC has offices in Houston, Austin, and The Woodlands.

These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.