Top 15 Proposed Changes to Texas Lawyer Advertising Rules

Top 15 Proposed Changes to Texas Lawyer Advertising Rules

I took a Professional Responsibility course in law school, but I can’t remember the grade I received. I think it was at least a B, so hey, that’s good enough for a thought leader, right?

Anyway, major changes to the ethics rules that govern Texas lawyer advertising—including the use of social media—may be coming soon. The proposed changes would modernize and improve the advertising rules. If the changes are enacted, Texas law firms will be allowed to use trade names, and Texas lawyers will be able to use social media more freely without fear of stepping on ethical landmines.

The proposed changes would amend Part VII of the Texas Disciplinary Rules of Professional Conduct, which contains Rules 7.01-7.07 governing lawyer advertising and solicitation. These rules are, frankly, kind of a mess. They were obviously written to regulate plaintiff’s personal injury lawyers, and they are awkward to apply to other practice areas.

For example, how is a defense lawyer or a transactional lawyer supposed to comply with the requirement that when stating results obtained, “the amount involved was actually received by the client”? See Rule 7.02(a)(2)(ii). This is just one example. And these were problems before social media.

Applying these rules to social media is even more awkward. I’ve written about this problem before. See Five Rules Texas Lawyers and Other Professionals Must Follow When Using Social Media. As I explained, the good news was that the Texas State Bar Advertising Review Committee helped by issuing Interpretive Comments that clarified application of the rules to social media.

The bad news was that the Interpretive Comments still left open the possibility that (a) all the Texas lawyers who have LinkedIn profiles they haven’t filed with the State Bar are technically violating the requirement to file all lawyer advertising, and (b) every time a Texas lawyer posts something on social media, it could be an “advertisement in the public media” that is supposed to be filed.

For these reasons, when the Committee on Disciplinary Rules and Referenda circulated proposed changes to the advertising rules earlier this year, I recommended some changes to clarify these issues. See Influential Blogger Recommends Tweaking New Texas Ethics Rules.

To their credit—and to my pleasant surprise—the Committee members took the time to review my detailed memo, expressed appreciation, and listened attentively to my comments at the public hearing. They even invited me to share additional comments at a subsequent meeting and made further changes to the proposed rules to address some of the issues I raised. That was pretty cool.

As a result, the proposed rules include an exemption from the filing requirement for social media posts that are primarily “informational” or “educational,” as well as an exemption that would cover most lawyer social media profiles.

These are significant improvements that will encourage use of social media by Texas lawyers, while continuing the general prohibition of false or misleading lawyer advertising.

Want to see the details? Check out the submission packet for the proposed changes, including a redlined version of the rules. The packet even includes my memo and a transcript of my public comments. For the 15 changes that seem most important to me, read on.

Proposed Structural Changes

I call the first five changes structural in nature. These are the kind of changes that lawyer ethics nerds will love.

#1: One general “false and misleading” rule would replace the previous “per se” rules

This first one requires a little explanation, so bear with me.

The prohibition of false or misleading statements has been moved from Rule 7.02 to Rule 7.01, but the definition of “false or misleading” is the same:

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The new part is an expanded definition of a “misleading” statement:

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The key terms here are “substantial likelihood,” “reasonable person,” and “unjustified expectations.” This is more specific than the previous prohibition, which has been deleted:

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The idea is to prohibit statements that, while literally true, would cause a reasonable person to expect too much. The classic example would be something like “we got a $5 million verdict for a trucking accident victim, and we can do the same for you!”

This is a good clarification, but I don’t view this as a material change.

The bigger change is that the rules now rely on the general prohibition of false and misleading statements, without also enumerating specific types of false and misleading statements.

Previously, the rules identified certain statements that were false and misleading per se, particularly as to past results. Now the per se rule about past results would be deleted:

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This is a welcome change. This awkward rule created ambiguity because there are so many situations where it just doesn’t apply. The Advertising Review Committee had to clarify with Interpretive Comment 26, which essentially said just comply with the parts of the rule that apply to your situation:

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With the deletion of the previous per se rule about results obtained, this interpretive comment would no longer be necessary. The only downside is that I would no longer get to gripe about this rule when I present this topic at CLE seminars.

#2: The rules would now have a definition of “advertisement,” with the key language “offers or promotes legal services”

The new Rule 7.01 “governs all communications about a lawyer’s services, including advertisements and solicitation communications.” Believe it or not, the old rules did not define an “advertisement” in the public media, but the new Rule 7.01 would:

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The definition has three key elements:

(1) “substantially motivated by pecuniary gain”

(2) made to “members of the public in general”

(3) “offers or promotes legal services”

In my memo to the Committee, I quibbled with the “pecuniary gain” element because it’s subjective. Plus, isn’t most of what lawyers post on social media motivated by “pecuniary gain” to some degree? But it’s probably not a big deal. The “substantially motivated” language should be sufficient to keep this from being a problem.

The two other elements are really the key. To trigger the advertising requirements, it has to be a communication to the public, so a private post viewable only by your 50 Facebook friends is probably not advertising. And it has to offer or promote legal services. So a tweet that says “I’m working this weekend on a brief for a client” won’t be considered an advertisement.

Why does this matter? For one thing, the rules generally require advertisements to be filed with the Advertising Review Committee. More about that later.

#3: The rules would now have a definition of “solicitation,” which includes “offering to provide legal services”

The proposed rules also have a new definition of a “solicitation communication”:

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This definition has three elements, which correspond to the three elements in the definition of advertisement we looked at earlier:

(1) “substantially motivated by pecuniary gain”

(2) made to a “specific person who has not sought the lawyer’s advice or services”

(3) “offering to provide legal services . . . in a particular matter”

Thus, the difference between an advertisement and a solicitation communication is that a solicitation communication is to a specific person about a particular matter. This can be important because there are specific rules about solicitation in Rule 7.03, including a prohibition on solicitation through social media (with some exceptions).

#4: The rules would now expressly refer to social media

Speaking of social media, the proposed rules would include “social media” in the communications regulated by the rule on solicitation:

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Nobody thinks the existing rules don’t apply to social media, but expressly acknowledging social media in the advertising rules is a welcome update. I only wonder if, 20 years from now, the phrase “social media” will be out of date and people will cringe when they read it.

#5: There would be no separate rule for law firm websites

The current rules have a special provision just for law firm websites in Rule 7.07(c). That provision is old enough that it had to include a definition of “website.” The upshot of that rule is that law firms can file the homepage but not worry about filing changes to the rest of the website.

The new rules would have the same effect, but they would do it by adding a filing exemption for portions of the website other than the homepage. (I address this exemption below.)

Those are the major structural changes I see in the proposed new rules. The next five changes are new exemptions to the filing requirement. These exemptions would have more of a practical impact.

Proposed Exemptions from the Filing Requirement

Unless an exception or exemption applies, Texas lawyers must file advertisements and solicitation communications with the Advertising Review Committee, which requires filling out a form and paying a fee. This general requirement will not change.

This filing requirement creates a problem for lawyers who use social media for professional networking and business development. Most Texas lawyers do not file their social media profiles (such as LinkedIn), and they don’t want to have to think about filing every time they post something on social media that might be considered an advertisement.

The good news is that the new exemptions would clarify that in most cases Texas lawyers do not need to file their social media profiles or posts as advertising.

#6: The new rules would have an exemption for content published for informational, educational, political, artistic, or entertainment purposes

In my comments to the Committee, I suggested adding an express safe harbor for communications of an “educational or informational” nature. This would track the current guidance from the Advertising Review Committee in Interpretive Comment 17, which says the filing requirement does not apply to “[b]logs or status updates considered to be educational or informational in nature.”

The revised proposal expands the exemption:

Screen Shot 2020-08-02 at 1.19.38 PM

This would be a significant improvement that would provide needed clarity to Texas lawyers who are active on social media. It would allow attorneys to post freely on social media for informational, educational, political, artistic, or entertainment purposes. As long as such posts do not “expressly offer legal services,” they would not have to be filed as advertising.

#7: The new rules would have an exemption for “the type of information commonly found on the professional resumes of lawyers”

Initially, the draft rule revisions included a filing exemption for “a communication on a professional social media website to the extent that it contains only resume-type information.”

In my comments to the Committee, I suggested tweaking this social media exemption to make it clear that the typical lawyer profile on LinkedIn would be exempt.

The proposed language is now a little broader. The exemption would cover a social media profile that does not expressly offer legal services and that:

Screen Shot 2020-08-02 at 1.20.42 PM

This exemption would probably cover the typical lawyer profile on LinkedIn, as long as it does not “expressly offer legal services.”

My only hesitation is that one might question whether Endorsements and Recommendations, a staple of LinkedIn profiles, are commonly found on professional resumes of lawyers. But if this exemption is enacted, I think it would be a fairly safe bet to assume your LinkedIn profile does not have to be filed, at least until the State Bar says otherwise.

#8: Most of a law firm website would be exempt from the filing requirement

As noted earlier, the current rules have a special rule specifically for law firm websites, in Rule 7.07(c). That rule would be eliminated, but there would be a specific filing exemption for law firm websites:

Screen Shot 2020-08-02 at 1.21.39 PM

In other words, the homepage of a law firm website must be filed, unless all of the information on the homepage is covered by other exemptions. The rest of a law firm website would not need to be filed.

The effect is similar to the current rules, except in some cases firms wouldn’t even have to file the homepage.

#9: The newsletter exemption would be expanded

Existing Rule 7.07(e), newsletters sent to existing or former clients, other lawyers or professionals, and certain members of nonprofit organizations are exempt. The proposed rule would slightly expand this exemption to cover:

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Thus, a newsletter sent to a business person who is experienced in using the type of legal services the lawyer offers would be exempt, as would a newsletter sent to anyone who asked to receive it.

#10: Certain basic types of information about a lawyer or law firm would continue to be exempt

The proposed Rule 7.05(i) would carry forward most of the exemptions for certain basic information about a lawyer or law firm now found in Rule 7.07(e), such as names, contact information, court admissions, educational background, licenses, foreign language abilities, and board specializations.

Proposed Rule 7.05(i) would not include the previous exemption for “the particular areas of law in which the lawyer or firm specializes or possesses special competence,” but in most cases that information would be covered by the “professional resume” exemption addressed above.

Things Texas Lawyers Would Now Be Allowed To Do

#11: Use a trade name (if not false or misleading)

This is the big one. Rule 7.01(c) would expressly provide that “[l]awyers may practice under a trade name that is not false or misleading.” Law firm names would no longer be limited the name or names of current or past partners.

I don’t really have a dog in the trade name fight, so I’ll leave it to others to debate this one. I’ll just be curious to see how far creative firms push this. Will we see a firm called Badass Trial Lawyers of Abilene? Trademarks R Us? The Lollipop Firm?

Keep in mind, the only limit is that it can’t be false or misleading. Nothing in the proposed rule requires good taste.

#12: Say you “specialize” (instead of “focus,” “concentrate,” etc.)

Under the current rules, only lawyers certified by the Texas Board of Legal Specialization can say they “specialize” or call themselves “specialists” in a certain type of practice.

Of course, almost every lawyer today specializes in one or more specific areas of law practice, whether board certified or not. And there are many specialties—hmm, non-compete and trade secret litigation comes to mind—that have no board certification.

This is not a big problem, because those lawyers can simply say they “focus” or “concentrate” on their type of practice, rather than “specialize.” But this really puts form over substance.

The proposed changes would end this silliness. Rule 7.02(b) would allow lawyers to say they practice in particular fields of law:

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The part about “particular fields of law” does not use the word “specialize,” but the proposed comments to Rule 7.02 make it clear that lawyers would be allowed to say they specialize:

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There are limits, of course. As the proposed comment notes, the statement about specialization must not be false or misleading. And as the rest of Rule 7.02(b) provides, there are limits on stating you’re a member of an organization with a name that implies its member possess special competence.

But generally, it will now be ok to say you specialize in a particular type of practice, as long as that’s true.

#13: Promote past successes and results obtained without specific conditions

As noted above, the current Rule 7.02(a) imposing specific conditions on statements about past successes would be deleted. So, for example, there would no longer be a requirement that the lawyer was lead counsel.

But again, to comply with Rule 7.01, the statement can’t be false or misleading, or create unjustified expectations. And the proposed comment to Rule 7.01 says the lawyer who cites a past result must have “played a substantial role in obtaining that result.”

#14 Compare yourself to other lawyers (if not false or misleading)

Current Rule 7.02(a)(4) prohibits comparisons to other lawyers that are not based on objective, verifiable data. In other words, you can’t compare yourself other lawyers based just on opinion. At least that’s the rule. I’m not sure it is followed.

But this rule would be deleted:

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This is one case where I like the current rule. Do we really need lawyers expressing opinions comparing themselves with other lawyers? I admit I’m a little old-fashioned on this issue.

On the other hand, deleting this prohibition wouldn’t mean that anything goes. Under the new Rule 7.01, Texas lawyers still wouldn’t be allowed to make comparisons to other lawyers that are unsubstantiated.

The proposed comment to Rule 7.01 makes this clear:

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So, assertions like “we’re the best lawyers in town,” or “we can get you a recovery when others can’t” are probably still off limits.

#15: Solicit business from personal or professional contacts

In addition to expanding the filing exemptions for advertisements, the proposed changes would simplify and slightly expand the filing exemptions for solicitation exemptions.

The current solicitation exemptions in Rule 7.05(f) would be deleted:

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These exemptions would be replaced by the following solicitation exemptions in the new Rule 7.05:

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While the “pecuniary gain” exemption would be deleted, it would effectively remain in place because the new definition of “solicitation communication” in Rule 7.01(b) would include the element of “substantially motivated by pecuniary gain.”

The new exemptions for other lawyers and experienced business users will be especially advantageous for business lawyers who seek to develop business through contact with other lawyers and potential business clients.

Bonus Change: Hammer Don’t Hurt ‘Em

I said the top 15 changes, but here’s a bonus. The proposed changes include a rule that would prohibit telling potential clients you can get results through violence:

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Apparently we needed to clarify that lawyers can’t do this. Only in Texas.

My Grade for the Proposed Changes

The Committee on Disciplinary Rules and Referenda has done good work to update and modernize the rules governing Texas lawyer advertising for the social media era. It will be impossible for the changes to please everyone, but the proposed new rules would be a significant improvement in clarity over the old rules.

The new rules would rely heavily on the command to avoid false or misleading statements. That may be a “fuzzy” command that reasonable lawyers can disagree on in any particular case, but at least the command is intuitive and easy to understand.

The proposed rules would also have the benefit of making it easier for Texas lawyers to share information freely on social media without fear of violating the advertising rules. This is a development Texas lawyers should welcome. I give the Committee an A.

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IMG_4571Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. Follow @zachwolfelaw on Instagram to keep up with his latest shenanigans.

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.

How to Get Sanctioned for Deleting Facebook Posts

How to Get Sanctioned for Deleting Facebook Posts

I social media. I don’t know how I’d get through this pandemic without it. That live performance by the Rolling Stones that I saw on Twitter last week was just what I needed.

Social media in litigation, on the other hand, can really cause lawyers some headaches. Here are some of the questions it raises:

  • Does the duty to preserve evidence apply to material a client posts on social media?
  • Should lawyers give clients guidance about preservation of social media during a lawsuit?
  • Can a party’s social media posts be used against the party in court?
  • Should lawyers give clients guidance about what they post on social media during a lawsuit?
  • Should lawyers prepare their clients to testify about what they did with social media?
  • If a client deletes relevant social media content during a lawsuit, should the client’s lawyer lie about it?

I’m willing to bet most of my Fivers already know the answers to these questions.

But I bet a smaller number of my lawyer readers regularly do the following:

(1) Specifically advise the client in writing to preserve relevant social media content at the beginning of a litigation matter

(2) Specifically advise the client to avoid posting anything on social media that could be used against the client in the lawsuit.

(3) Specifically prepare the client to answer deposition questions about use and preservation of social media.

This could be a problem. Let me share a couple cautionary tales.

The “Hot Moms” T-Shirt Case

You may have heard about Allied Concrete v. Lester. The case had some funny facts, but it arose from a real tragedy: a concrete truck crossed the center line on the Thomas Jefferson Parkway in Virginia, tipped over, and crushed a vehicle driven by Isaiah Lester, injuring him and killing his wife Jessica. Lester sued the concrete company. Allied Concrete Co. v. Lester, 736 S.E.2d 699, 701 (Va. 2013).

So far, this sounds like a typical, though tragic, personal injury suit. But it had a social media angle. When Lester filed suit in in May 2008, he had an account with Facebook, which had first become available to the public less than two years earlier.

Lester’s lawyer was the managing partner of his firm’s Charlottesville office and had over 30 years of experience. But he was apparently not an “early adopter” of social media. His lack of experience with social media may have contributed to the following chain of events:

1/9/09: Lester sent a Facebook message to Allied Concrete’s lawyer.

3/25/09: Allied Concrete requested production of all pages from Lester’s Facebook page, attaching a photo from Lester’s Facebook page. The photo showed Lester “accompanied by other individuals,” holding a beer can, and wearing a T-shirt emblazoned with “I hot moms.”

3/26/09: Murray instructed his paralegal, Marlina Smith, to tell Lester to “clean up” his Facebook page cause “we don’t want any blow-ups of this stuff at trial.” She emailed Lester about the photo and also said there were “some other pics that should be deleted” from his Facebook page.

4/14/09: Lester told Smith he had deleted his Facebook page.

4/15/09: Lester signed a discovery response stating “I do not have a Facebook page on the date this is signed.”

5/11/09: After Allied Concrete filed a motion to compel, Lester reactivated his Facebook page, the paralegal printed copies of it, and Lester then deleted 16 photos from it.

5/14/09: Murray produced the printouts of the Facebook page to Allied Concrete.

12/16/09: Lester testified in his deposition that he had never deactivated his Facebook page. This resulted in Allied Concrete serving a subpoena on Facebook and hiring an expert who determined that Lester deleted 16 photos. All 16 photos were ultimately produced to Allied Concrete.

9/28/10: Allied Concrete requested production of emails between Lester and Smith between 3/25/09 and 5/15/09.

11/28/10: Murray filed a privilege log that intentionally omitted any reference to his 3/26/09 email to Smith.

Id. at 701-3.

You can see from this chronology that Murray, Smith, and Lester went wrong in several obvious ways:

(1) Lester deleting potentially relevant posts and deactivating his Facebook page.

(2) Lester falsely testifying that he had never deactivated his Facebook page.

(3) Murray filing a privilege log that intentionally omitted the most damning email.

You don’t need to know a lot of details about social media, legal ethics, or the duty to preserve evidence to know that these things were wrong.

And the consequences were severe. As sanctions, the trial court ordered Murray to pay $542,000 and Lester to pay $180,000 to cover Allied Concrete’s attorney’s fees and costs to address the misconduct. Id. at 703. The trial court also allowed the jury to see all the spoliated evidence and twice instructed the jury on Lester’s misconduct. Id. at 705.

And when it was all over, Murray had to agree to a five-year suspension of his law license. You can read the Virginia State Bar Disciplinary Board’s order here.

You might think the lesson is obvious: don’t let your client spoliate evidence and then lie to the court about it.

But there’s a less obvious lesson in the Allied Concrete case. From the start, Lester’s lawyer got off on the wrong foot by issuing the vague directive to “clean up” the Facebook page. He could have avoided later problems by giving the client specific written advice on (1) what he needed to do to comply with the duty to preserve relevant evidence and (2) what to avoid posting.

But I don’t want to be too hard on the lawyer. From his suspension order, you get the feeling that this was his first rodeo as to Facebook. Today we all understand how Facebook works, but did we know that 11 years ago? Today, how many of us know about wickr? Or Whisper? Or confide? Heck, most us probably don’t even know how to post a “story” on Instagram.

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Sure, you know Facebook. But do you know all of these?

Yes, the conduct in Allied Concrete was egregious, especially the lying. But my big takeaway is that even now, we’re all just a couple bad decisions away from getting in hot water over social media evidence.

A more recent case really brings this home.

The “I have the right to do whatever I want” case

In Nutrition Distribution LLC v. PEP Research, LLC, No. 16-CV-2328, 2018 WL 3769162 (S.D. Cal. Aug. 9, 2018), the court sanctioned a defendant for deleting relevant social media posts after the case was filed. The case teaches the importance of preserving social media evidence and preparing your client to testify about social media.

Nutrition Distribution was, from what I gather from the pleadings, sort of a “false advertising troll.” In other words, it sounds like it was more in the business of filing lawsuits against other companies for false advertising than marketing its own products. So you know the defendant, an online seller offering a controversial weight-loss supplement called Clenbuterol, was already highly irritated about getting sued in the first place.

This frustration boiled over in the deposition of Brent Reynders, an individual defendant and representative of the corporate defendant. Here’s a taste (I’m paraphrasing some of the questions):

Q: And since the lawsuit was filed in September 2016, have you deleted any posts from your Facebook?

A: Yes.

Q: Did the deleted posts have anything to do with this lawsuit?

A: It’s possible. Actually, it was—I think it had more to do with any copycat companies, law firms like yours trying to file the same frivolous lawsuit.

Q: Did you delete posts related to the marketing of Clenbuterol?

A: I have the right to do whatever I want to do with my Facebook account, regardless of a lawsuit or not. If I wanted to—if I want to delete every single post on my Facebook page, I have the right to do so.

Id. at *16.

I can just picture Mr. Reynders’ lawyer cringing. You’re not fully a litigator until you’ve had to sit quietly while your client gives deposition testimony like this.

And that was just the beginning. Nutrition Strategies filed a motion for sanctions for spoliation of evidence, asking for the dreaded “adverse inference instruction.” That’s an instruction telling the jury that a party failed to preserve evidence and that the jury can presume the evidence would have been unfavorable to that party.

In the Ninth Circuit, the sanction of an adverse inference instruction requires proof that “(1) the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) the records were destroyed with a culpable state of mind; and (3) the evidence was ‘relevant’ to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.” Id. at *15. The standards in other jurisdictions are pretty similar.

The magistrate judge found that each element was met. The defendant deleted relevant social media posts after the case was filed. The posts allegedly contained the very false advertising that the plaintiff was suing for, so there was no question the defendant had a duty to preserve them. The plaintiff showed that the deleted evidence was relevant because it included ads, photos, marketing, and the misleading statements at issue in the suit. Therefore, even if there was no bad faith, the plaintiff established prejudice. Id. at *16.

The defendants argued there was no prejudice because the plaintiff already had copies of the deleted posts, but the magistrate judge disagreed. There was evidence that plaintiff only had some of the posts, which it obtained in its pre-suit investigation. Id.

The magistrate judge therefore recommended an adverse inference instruction that “the social media posts deleted were false advertising of products that compete with Plaintiff.” Id. at *18.

The district court judge largely agreed. See 2018 WL 6323082 (S.D. Cal. Dec. 4, 2018). But he found that the recommended jury instruction went a little too far. Because the plaintiff’s claim was false advertising, the instruction that the deleted social media posts were false advertising that competed with plaintiff’s products was “tantamount to entry of judgment.” Or as we say in Texas, a “death penalty” sanction.

Noting that the plaintiff preserved some social media posts and that defendants offered to stipulate to the content of the posts, the district judge decided to give a less harsh instruction to the jury:

Defendants have failed to preserve social media posts for Plaintiff’s use in this litigation after Defendants’ duty to preserve arose. You may, but are not obligated to, infer that the deleted social media posts were favorable to Plaintiff and unfavorable to Defendants.

Id. at *5-6.

That’s much better for the defendants, but still pretty bad. A jury trial is hard enough. It’s near impossible when the judge gives the jury an instruction like this against your client.

So what did the jury decide? Well, actually it didn’t. There was no jury trial, because the district judge later granted summary judgment that the defendants did not publish any false advertising that competed with the plaintiff. See Order on MSJ.

You can’t always get what you want.

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IMG_4571Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. Follow @zachwolfelaw on Instagram to keep up with his latest shenanigans.

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.

Influential Blogger Recommends Tweaking New Texas Ethics Rules

Influential Blogger Recommends Tweaking New Texas Ethics Rules

If you scour every issue of the Texas Bar Journal for proposed changes to the ethics rules that govern Texas lawyers–and who doesn’t?–then you saw that the March 2020 edition included proposed changes to Texas Disciplinary Rules of Professional Conduct 7.01-7.06. These are the rules that regulate lawyer advertising, including social media. You can find background material about these changes here.

I’ve blogged about this topic (see Five Rules Texas Lawyers and Other Professionals Must Follow When Using Social Media) and taught continuing legal education programs on it, so you know I was eager to check out the proposed changes. And guess what, the proposed changes are generally an improvement.

It gets even better. You can submit public comments on the proposed changes to the Committee on Disciplinary Rules and Referenda by email to CDRR@texasbar.com or by clicking here. You can also call in for a public hearing on the proposed changes on my birthday, April 7. They will even let law bloggers participate. (Thanks to the Rules and Referenda Staff Attorney, Brad Johnson, for providing this helpful info.) 

You know I’m not going to pass up a chance to give my two cents on these proposed revisions. So here’s a draft of my memo to the Committee.

Memo

To:            Texas Committee on Disciplinary Rules and Referenda

From:       Five Minute Law

Re:            Changes to Texas Disciplinary Rules of Professional Conduct 7.01-7.06

Date:         3/23/20

A. Overview

  • My focus is on application of the advertising rules to social media. I am a practicing Texas litigator who has taught CLE programs on this topic for ethics credit.
  • The overhaul of the advertising rules is a welcome change. The old rules were unwieldy and difficult to apply to current reality, especially social media.
  • A literal application of the current rules could mean that a lawyer has to file every social media post with the Advertising Review Committee.
  • In addition, the current rules could be read to require all lawyers to file their LinkedIn profiles (and other “landing page” profiles). Hardly any Texas lawyer does this.
  • The new rules offer some guidance by now defining “advertisement.” The definition has three elements: (1) communication to the public, (2) offers or promotes legal services, and (3) substantially motivated by pecuniary gain.
  • The new definition of “advertisement” is helpful, but could be improved.
  • The Advertising Review Committee’s current Interpretive Comment 17 provides helpful guidance that “[b]logs or status updates considered to be educational or informational in nature are not required to be filed with the Advertising Review Department.”
  • Consistent with Interpretive Comment 17, the new definition of “advertisement” should include a carve-out or safe harbor to confirm that educational communications are not “advertisements.”
  • The new Rule 7.05 expands the exemptions from the filing requirement to include “a communication on a professional social media website to the extent that it contains only resume-type information.” Again, this is an improvement, but it could be better.
  • It is unclear whether the typical lawyer LinkedIn profile—which often includes endorsements and recommendations—would fall under this exemption. This should be clarified.

B. My Perspective

My perspective on the advertising rules and their application to social media is based on several things:

  • I have been a practicing Texas litigator for over 20 years.
  • My current practice focuses on representing both employers and employees in disputes involving non-competes, trade secrets, and other departing employee issue. There is no board certification for this practice area.
  • I am a frequent user of social media for both professional networking and sharing educational content with other lawyers and the public.
  • I publish a weekly blog, Five Minute Law, which focuses on litigation-related topics for both lawyers and non-lawyers.
  • I have written about the ethics of lawyer use of social media in Texas at my blog and have presented the topic multiple times at continuing legal education programs.

C. Problems with the Current Rules

The current Texas advertising rules were written specifically to regulate plaintiff’s personal injury lawyers, but they apply to everybody.

So, for example, Rule 7.02(a)(2) says a communication about past results is false and misleading unless:

(i) the communicating lawyer or member of the law firm served as lead counsel in the matter giving rise to the recovery, or was primarily responsible for the settlement or verdict,

(ii) the amount involved was actually received by the client,

(iii) the reference is accompanied by adequate information regarding the nature of the case or matter, and the damages or injuries sustained by the client, and

(iv) if the gross amount received is stated, the attorney’s fees and litigation expenses withheld from the amount are stated as well.

The problems with this rule are obvious. What if you weren’t lead counsel? What if you’re a defense lawyer who got a take-nothing verdict, so no amount was “actually received by the client”? What if you’re a transactional lawyer and there was no litigation, settlement, or verdict at all?

Fortunately, the Advertising Review Committee of the State Bar recognized the problem and published Interpretive Comment 26. It says, essentially, comply with the parts of the rule that apply to your situation, and don’t worry about the rest.

Even aside from these specific flaws, the way the current rules define false or misleading communications by reference to specific instances is problematic. I’ve always thought it would make more sense to have one general rule, i.e. don’t make false or misleading statements. The new proposed Rule 7.01(a) essentially does that. This is a definite improvement.

Another problem with the current rules is that, generally, a lawyer can’t say “I specialize” or “I’m a specialist”—even if it’s true—if the lawyer is not board certified in that practice area.

The reality today is that most lawyers specialize in a particular practice area but are not board certified. And what do you do if you specialize in, for example, non-compete and trade secret litigation? There’s no board certification for that.

The answer is that you just use a different word. Rather than say “specialize,” you say that your practice “focuses” or “concentrates” on a particular area of law.

Obviously, this puts form over substance. A limitation so easily avoided seems silly.

The new Rule 7.02 seems to fix this. It allows a lawyer to say the lawyer “practices in particular fields of law” and removes the express prohibition on a non-certified lawyer saying the lawyer is a “specialist.” It even appears that under the new rule a non-certified lawyer could say “specialize” or “specialist,” provided that statement is not false or misleading.

That is what the rule should be. The only constituencies that might have a reason to oppose this are board-certified lawyers and the Texas Board of Legal Specialization.

So I applaud this and the other proposed improvements to the “false and misleading” rules. But that still leaves the problem of social media.

D. Problems Applying the Current Rules to Social Media

Obviously, the current advertising ethics rules were not written with social media in mind, and applying them to social media is difficult.

The fundamental problem is that lawyers do not usually think of their social media profiles or posts as advertising, but these communications could be considered advertising under a literal application of the current rules. That would mean for every profile or post, the lawyer would need to fill out an application, pay a fee, and file a copy with the Advertising Review Committee of the State Bar of Texas.

Take LinkedIn. It is by far the most popular platform for professional networking for lawyers. Almost every Texas lawyer has a LinkedIn profile.

The profile includes an “About” section that usually contains a self-promoting description of the lawyer’s practice written by the lawyer, an “Experience” section showing the firms the lawyer has worked for, and an “Education” section with the lawyer’s degrees. These sections are followed by the “Skills and Endorsements” section and the “Recommendations” section (more about those later).

In short, the point of the profile is to promote the lawyer’s experience and qualifications as a lawyer. And in the vast majority of cases, the profile is set to be viewable by the public. So is it an “advertisement” that must be filed?

It sure sounds like advertising, and the Advertising Review Committee has said it is. Interpretive Comment 17(C) says: “Landing pages such as those on Facebook, Twitter, LinkedIn, etc. where the landing page is generally available to the public are advertisements.”

It therefore appears that, generally, Texas lawyers must file their LinkedIn profiles.

Of course, hardly any lawyers do this. I have plenty of anecdotal evidence from raising this question at multiple CLE presentations. It appears that thousands of Texas lawyers are currently breaking the rules by not filing their LinkedIn profiles (arguably).

This is an untenable situation.

One possible solution is for a lawyer to limit the material in the LinkedIn profile to matters that are exempt from the filing requirement under current Rule 7.07(e). The exemption includes some basic resume-type information, including “the particular areas of law in which the lawyer or firm practices.”

That helps, but it does not entirely solve the problem. Remember Endorsements and Recommendations? They expressly promote the qualifications and experience of the lawyer, and they do not seem to fall under any existing exemption. So, even a lawyer who tries to limit her profile to material that falls under an exemption is still going to have a hard time achieving strict compliance.

And the problem is not limited to profiles. There is also the problem of social media posts.

E. The Problem with Social Media Posts

Let’s take a typical LinkedIn post by a lawyer. The lawyer shares an article that recognizes the lawyer’s firm as a top firm in a particular practice area, adding the comment “Congrats to my wonderful colleagues!” If the lawyer published this in a magazine, we would all agree it’s an advertisement. But it is unlikely the lawyer will consider the social media post an advertisement, and even less likely the lawyer will file it with the Advertising Review Committee.

I suppose the Bar could take a hard line and strictly enforce the filing requirement. But the likely result would not be lawyers filing their LinkedIn profiles and posts as advertisements, but lawyers getting off LinkedIn. That would not benefit the profession or the public.

The problem is even greater on Twitter. A lawyer who is active on Twitter may share dozens of tweets, retweets, and responses to tweets in a day. But we don’t want to make  the lawyer evaluate each tweet to determine if it’s an “advertisement,” file a copy of each one that crosses the line into advertising, and pay multiple fees each day.

F. The “Educational or Informational” Solution

Interpretive Comment 17 offers a potential solution by drawing a line between “educational or informational” content and advertising: “Blogs or status updates considered to be educational or informational in nature are not required to be filed with the Advertising Review Department.”

So, a lawyer who wants to post content on social media can avoid violating the filing rule by keeping the content “educational or informational” rather than self-promotional.

For example, a tweet that comments on a recent Texas Supreme Court decision would not be advertising, because it’s educational or informational, but a tweet that says “my firm just won a huge case for our client X at the Texas Supreme Court” might be advertising.

It’s not a perfect solution, but it helps.

G. The Proposed New Definition of “Advertisement”

The new Rule 7.01 improves on the situation by defining “advertisement.” The proposed definition is “a communication substantially motivated by pecuniary gain that is made by or on behalf of a lawyer to members of the public in general, which offers or promotes legal services under circumstances where the lawyer neither knows nor reasonably should know that the recipients need legal services in particular matters.”

The last part of the definition is there to distinguish an advertisement from a “solicitation.” I will focus on the first part.

The proposed definition has three elements:

(1) communication to the public

(2) offers or promotes legal services

(3) substantially motivated by pecuniary gain

One of these things is not like the other. Elements 1 and 2 are objective. Element 3 is subjective. In other words, you can evaluate elements 1 and 2 solely by looking at the communication on its face. Element 3, in contrast, requires looking into the mind of the lawyer who made the communication.

It would be preferable to make the definition entirely objective. The focus should be on the substance of the communication, not its motivation.

The problem with the subjective element, in a nutshell, is that there is almost always some pecuniary motivation to content a lawyer shares on social media. Even when a lawyer shares a post that is entirely educational, the lawyer is probably hoping that the post will help to generate interest from a potential client or referral source.

I’ll use myself as an example. My last three blog posts covered application of force majeure clauses, drafting considerations for Texas non-competes, and a recent Texas Supreme Court case on whether an exchange of emails established an enforceable purchase agreement.

Each of these posts was primarily “educational” in its content, for both lawyers and members of the public. And at the risk of flattering myself, I would also say the content was helpful to understanding the topics.

Was my motivation purely educational? Of course not.

Yes, I enjoy educating people, but my blog posts are also part of an overall networking and business development strategy. Obviously, I am hoping that these posts will help generate referrals by other lawyers or inquiries by potential clients. You might call that a “pecuniary” motivation.

H. Applying the New Definition of “Advertisement”

So would my blog posts be “advertisements” under the new proposed definition?

Probably not. That’s because my posts do not “offer or promote legal services,” at least not expressly. Ignoring the advice of marketing experts, I never add a “call to action” to my posts, e.g. “if you need help with drafting a force majeure clause or a non-compete, please contact me.” I avoid the call to action because it sounds too “salesy” for my taste, but also because I don’t want to turn my educational blog post into an advertisement that I’m supposed to file.

Plus, I could make a case that the post was only partly, not “substantially,” motivated by pecuniary gain.

The problem is the “probably.” It would be better if the new definition would provide more certainty that an educational post is not an advertisement, following Interpretive Comment 17. The “motivated by pecuniary gain” element adds some uncertainty.

To mitigate this problem I propose the following modification:

An “advertisement” is a communication substantially motivated by pecuniary gain that is made by or on behalf of a lawyer to members of the public in general, which and that offers or promotes legal services under circumstances where the lawyer neither knows nor reasonably should know that the recipients need legal services in particular matters. A communication, including an article, blog post, or social media post, that is primarily educational or informational and does not expressly promote the experience or qualifications of the lawyer or solicit potential clients is not a communication that “offers or promotes legal services.”

This continues existing policy (under Interpretive Comment 17) but provides more certainty.

I. The New Exemption for Resume-Type Information

The new Rule 7.05 expands the list of things that are exempt from the filing requirement. It includes a new exemption for “resume-type information” on social media:

(g) a communication on a professional social media website to the extent that it contains only resume-type information.

This is a welcome improvement. It potentially solves the problem with LinkedIn profiles—and other social media profiles—discussed above. Lawyers should be free to post resume-like information about their experience and qualifications on their social media profiles without worrying about whether they are required to file the profiles as advertisements.

The problem with the proposed exemption is that the term “resume-type information” is vague. In particular, it is not clear whether resume-type information includes endorsements and recommendations, and therefore it is not clear whether the exemption solves the LinkedIn profile problem.

To address this issue with more certainty, I propose the following revision:

(g) a communication on a professional social media website to the extent that it contains only resume-type information; “resume-type information” includes third-party endorsements and recommendations and other information about experience and qualifications customarily provided on social media profiles, provided the information is not false or misleading under Rule 7.01;

Again, lawyers are already sharing this information. We need a rule that accommodates this reality. A situation where thousands of lawyers are potentially violating the rules by not filing their profiles does not increase public confidence in the legal profession.

J. Conclusion: Lawyer Use of Social Media Should be Encouraged

The assumption that implicitly underlies my comments is that the rules should encourage lawyers to engage with other lawyers and the public on social media. There is a real benefit to both lawyers and non-lawyers when lawyers freely share information on social media. Any rule that would have a chilling effect on lawyer engagement on social media should be avoided.

Granted, there is a danger to the public from unscrupulous lawyers using social media, just like there was a potential danger when we allowed lawyers to write articles in magazines, place ads in the yellow pages, record TV and radio commercials, and put up billboards. But the general prohibition on false or misleading communications can do most of the work. Protecting the public does not require antiquated and byzantine rules that were never intended for social media.

I hope my comments are helpful to the Committee’s admirable effort to update and streamline the Texas advertising rules for the social media era.

So what do you think of my draft public comment? I’d love to hear your feedback. And if you agree with my suggested improvements, please email the Committee on Disciplinary Rules and Referenda at CDRR@texasbar.com and tell them “I agree with Zach Wolfe’s proposed revisions published at Five Minute Law.”

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IMG_4571Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. Follow @zachwolfelaw on Instagram to keep up with his latest shenanigans.

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.

50 Things Law School May Not Teach You (But Twitter Law School Can)

50 Things Law School May Not Teach You (But Twitter Law School Can)

Twitter is not all bad. One good thing about it is the opportunity for lawyers and law school students to interact. It gives the students a chance to hear what’s going on in the real world of law practice. And it gives lawyers a chance to do what they love best: talk about themselves and their jobs. You might call it “lawsplaining.”

A common law-Twitter trope: the law student expresses anxiety about exams, or interviewing, or student loans, and a snarky lawyer responds with something like, “You think your Property final is hard? Just wait until you’re a lawyer and your boss emails you at 10 pm saying he needs a motion for summary judgment researched, drafted, and on his desk by tomorrow morning!”

Yes, we lawyers tend to lay it on a little thick. So if you’re a law student following lawyers on Twitter, adjust your settings for “associate gallows humor,” “bitter senior partner venting,” and the like. And keep in mind that most of us lawyers like our jobs and the profession, even if we sometimes act like we’d rather have some horrible menial job, like accounting.

Plus, it’s hard to compare the existential dread of law school and the bar exam with the everyday headaches of practicing law. Sure, it can be a pain dealing with difficult clients, demanding bosses, irritable judges, billable hours, or bringing in business. But that’s more of a daily grind, and you get used to it. It’s not the same kind of scary as taking that Secured Transactions exam that will determine whether you will get a job or have to default on your student loans.

Not only that, you have to adjust for the experience and capabilities of the person experiencing the adversity. The Bible says God will not test you beyond what you can bear. Whether you believe that or not, in professional life your ability to handle stress does tend to expand as the tests become more challenging.

I mean, you wouldn’t say to your ten-year-old, “You think fractions are hard? Just wait until you have to get a job and pay a mortgage!” Or maybe you would. But the point is that lawyers shouldn’t try to make law students feel like they’re being wimps for complaining about how tough law school can be.

So, real law school students, take the pearls of wisdom you find on Twitter School of Law with a grain of salt. (Talk about mixed metaphors.)

But still, you can learn a lot from Twitter about what it’s really like to be a lawyer. I have firsthand knowledge of this. I recently tweeted the following:

Screen Shot 2020-02-23 at 11.42.54 PM

I was serious. In law school, you wouldn’t dream of turning in a paper citing a case that didn’t support the proposition it was cited for. You certainly would not be so careless as to cite a case that said the opposite. So when I was a law student, I would not have expected real lawyers to do that.

But in the real world of litigation, this sort of thing happens more often than you would think.

It was just an offhand comment, but my tweet went viral (at least by my standards). Over 200 retweets, almost 2,000 likes, and over 300 comments.

The comments were really the best part, although some people seemed to misunderstand the question. The question was about what would surprise law school students, not just “what is something about law practice that you would like to gripe about?”

But still, the responses were fun to read. Some were funny, some insightful, and most of them had a nugget of wisdom.

They were so good that I decided to select the top 50. Now, keep in mind, my goal here was to select things that struck me as both true and unexpected. So if you responded with some unparalleled wisdom that didn’t make the cut, maybe I just thought your point would not be that hard for a law student to believe.

As I selected the top 50, I noticed two things. First, there were some discernible recurring themes. Second, most of the comments were, shall we say, a little on the negative side? So, I’ve grouped the responses by theme, and where needed I’ve offered a counterpoint accentuating the positive.

Law school vs. law practice

1. “The practice of law is way more stressful and demanding than the study of law once prickly senior partners, combative opposing counsel, fearsome judges, and difficult clients are part of the picture.” 

2. “Grades don’t matter in practice. Once your in the profession, how well you did means nothing when it comes to how you will do at your job.”

The first response is the typical one I mentioned earlier, although said in a nicer way. And it has a point: practicing law is more demanding than law school, at least in absolute terms. But don’t despair. You have to look at it in relative terms. With more experience under your belt, you’ll be able to handle it. 

And here’s some news that may lighten the load of exams: Law school grades do make a difference in getting that first job offer, of course, and low grades may cut off some elite career paths. But for the most part, nobody is going to care about your law school grades after you get that first job.

BigLaw is great, but . . .

My impression is that BigLaw sucks up most of the recruiting oxygen on law school campuses. Still, as these comments point out, don’t think that working for a big law firm is the only worthwhile career path. 

3. “That some of the best (and happiest) lawyers work for government agencies. They become experts in their fields. And although they won’t get rich, they make a comfortable living, have healthcare and guaranteed retirement, and go home at a reasonable hour.”

4. “That working for a smaller firm can get you way better mentorship sometimes and as such be better for your better for your career in the long run.”

5. “That quite often, the only advantage that a BigLaw firm has over a solo is the ability to marshal large numbers of (hourly billing) attorneys. That the underlying work sometimes is done better by the solo.”

On the other hand, big law firms hire a lot of students out of law school, and that’s where the money is. Plus, as I conceded in my post Should Clients Pay a Premium for Big-Name Law Firms?, most of the superstar lawyers are at the big firms. So it’s only natural that law students focus on them.

Law is messier than you think

6. “That fact patterns aren’t give to you in a neat, digestible format. You must pull the facts from your client and other witnesses (often, on multiple occasions) and organize them yourself.”

7. “That there is not going to be authority providing neat answers to many/most questions you are researching. So many of the issues we have to deal with are in grey areas, and I don’t think law school prepares you for that.”

8. “Managing ambiguity is part of the job. Sometimes, there’s no clear answer or path to recommend to your client.”

9. “The ethical issues that arise are not usually defendants admitting crimes or telling you where the bodies are. They are often relatively small, easy to miss instructions to do something that you might not immediately realize is unethical.”

The theme here is that law–and legal ethics–are messier than your meticulous outlines. On the other hand, you might be surprised how often you find yourself recalling and applying concepts you learned even decades earlier in law school. So those lessons do have value. Just don’t expect them to give a you a definitive answer all the time.

So much work, so little time

10. “That projects that take half a semester in law school you’ll have to do 2-3 every day.”

11. “How little time there is to do a lot of the work.”

It’s true. That motion for summary judgment you spent a semester on in law school? You might have one night to write it. But again, it’s ok. As the amount of work increases, your capacity for doing the work will increase too.

It’s not all sophisticated legal analysis

12. “My assumption in law school that I’d do a lot of talking as a lawyer was correct, but I though more of it would be in the courtroom. In reality, it’s mostly from my office on the phone. Sometimes I feel like I work at a call center. Dozens of calls a day, 30-60 min. ones are common.”

13. “That a strict system of file organization and client contact tracking heads off 90% of potential problems.”

14. “How far basic things like good record keeping and calendaring will get you. You can write amazing briefs, but if you’re always filing them late that’s going to catch up to you.”

15. “Transactional lawyer here. First, the amount of managing a project needed to get a deal done (vs anything having to do with the law). Second, the use of forms.”

16. “You may well spend days, even weeks completing administrative tasks.”

17. “How much of practice isn’t obvious from reading the rules. For example, how do you get the court to actually consider the motion you just filed and rule on it? In federal court, you sit and wait. In state court, you often have to get on a hearing calendar somehow.”

Law school doesn’t teach you much about practical office skills or internal court procedures. I don’t have a problem with that. Law schools focus on teaching substantive areas of law, because that’s what law schools are good at. Just don’t let that make you think you’re going to spend all your time focused on the law.

It takes a village to raise a baby lawyer

18. “Admins run everything, they all talk, and woe to the baby lawyer who runs afoul of the Admin Network.”

19. “The most important person at your law firm is probably a paralegal.”

No, you don’t want the secretaries and legal assistants mad at you. But if you’re lucky (like me), you’ll get to work with some great non-lawyers who will make your work life so much easier.

Respect your elders?

20. “That the amount lawyers charge has little to [do] with their level of skill or competence.”

21. “That a lot of attorneys who have decades of experience over you doesn’t mean they are better or know what they are doing.”

22. “You will come across senior lawyers, some of them prominent and respected, whose affidavits would get a failing grade in law school.”

23. “That the fact that someone has been practicing for a long time does not mean that they know what they are doing.”

Yes, you will discover that the most prominent or most senior lawyers sometimes have mediocre practice skills–or worse. But don’t disrespect the old folks. I have found that I can learn something valuable from almost every experienced lawyer I encounter. And the really good ones can teach you everything you need to know if you pay attention.

Judges

24. “That judges often don’t read one’s impeccably drafted and cite-checked briefs prior to hearings.”

25. “How many judges were terrible lawyers, then always brag about how great they were once on the bench.”

26. “How absolutely ordinary judges are.”

27. “I was really surprised to hear how much judges talk to other judges about attorneys that appeared in their courtroom. If you were disrespectful or respectful, judges talk to each other about that. A LOT.”

In law school I had an image of judges as the most experienced and esteemed lawyers who went on the bench after successful careers in litigation. The reality is that many judges are judges because they are good at politics, not because they are good at practicing law.

But there are still some really good ones. Given the system we have–elections for state court judges (at least in Texas) and federal appointments based on political connections –it’s a pleasant surprise how many excellent judges there are, especially when you consider they could make 3X more money in private practice (at least).

And regardless of what you think of the judge, follow the rules and be respectful. Word gets around.

Nice guys finish last?

28. “That you will actually get along with, and at times develop friendships with opposing counsel and more surprisingly, it’s almost always a good thing and benefits your client.

29. “Opposing counsel can be an ally. No need for snark. Civility can win.”

30. “How often you end up engaging in respectful conversations with opponents as you resolve disputes! I wish this was featured more in law school to counteract the popular notion that lawyers go around screaming at everyone who doesn’t share their position.”

Finally, some warmer, fuzzier responses. As these tweets indicate, don’t let TV and movies–or a fierce mock trial competition–convince you that the best lawyers treat opposing counsel like dirt.

90% of law practice is showing up?

31. “The awful work product you’ll come across from opposing lawyers, generally. Or the discovery abuse that is never addressed by the court.”

32. “That legal writing assignment that you got a C+ on is probably better quality than 90% of stuff that lawyers file.”

33. “That if you do simple things like show up for court, prepare, answer phone calls from your client, keep up with deadlines, and refrain from actively trying to screw over your client, you will instantly be in the top 10% of lawyers in your city.”

This may be a little exaggerated. But it’s true that after working so hard in law school, you will probably be surprised at how much bad lawyering is out there. So take the job seriously and take care of the fundamentals, and you will already be ahead of the game.

Difficult clients

34. “Sometimes people will be literally angry that you won’t do that legal task for free.”

35. “Despite the fact that you, the lawyer, with your education and practical experiences, are instructing them to do X, they will invariably state that you are wrong and they will do Y. They will then get upset (at you) when Y blows up in their face. Paper your advice folks.”

“Invariably” might be too strong. But you will be surprised how often a client will pay you $400 an hour (or whatever) for your expertise and then want to ignore your advice. On the other hand, it can be very gratifying when a client does trust your advice. 

Will justice be done?

36. “You will lose. You can be right on the law, you can have justice on your side, you can write the most gorgeous brief, opposing counsel can do a lousy job… and the judge can go against you and there’s nothing you can do about it.”

37. “A winning argument is sometimes a losing argument when made by a no-name firm. A losing argument is sometimes a winning argument when made by a silk stocking or local firm.”

Sometimes judges and juries just get it wrong. And sometimes you will lose because of favoritism, not the merits. But overall, if you do your best work for every client, in the long run the overall results will be good.

Discovery, rules, and deadlines

38. “The lack of control over the discovery process by the courts despite the pretty detailed rules re timing and sanctions for ignoring said rules.”

39. “As a litigator: That some courts don’t give a single goddamn about schedules or rules.”

You can learn all the rules for discovery and other pretrial matters, but they’re not set in stone. This was another recurring theme. Still, if you play by the rules and meet your deadlines, you will be in a better position to get good results for your client.

Emotional intelligence > legal intelligence

40. “How much of your job is managing personalities.”

41. “If two people describe a situation completely differently, it doesn’t mean either one is lying. You’ll get much further if you assume both are trying their best, and think hard about how each one could see it that way.”

42. “How often even large ‘sophisticated’ corporate clients make litigation decisions based on emotion (usually pride or arrogance) rather than cold hard reason. Starting out you tend to think this is only how family law clients behave. Decisions still made by people.” [Ok, full disclosure: this was mine.]

It can be frustrating when clients make bad decisions based on emotion. But part of your job as lawyer is to put yourself in the clients’ shoes and understand where they’re coming from. Be glad that your clients are not robots.

Business skills vs. legal skills

43. “This doesn’t apply to every lawyer, but for many: customer service skills >>>>> legal skills.”

44. “Practicing law is not the business of law. You have to know and do both. Hard work does not equate with success.”

45. “A corollary to yours, but there are an awful lot of successful lawyers who are great at business development, handwaving, speechifying, etc., but just really terrible at lawyering.”

46. “The huge amount of time, effort and money to market your practice. And that marketing is almost as important as the practice of law these days.”

47. “Unless you have an amazing mentor/rainmaker who takes you under their wing and transitions clients to you, you need to start networking and building a book from day one. Stellar legal work is not enough.”

Oh man, that last one hit me hard. I was clueless about that sort of thing when I came out of law school. I thought I was just not the “rainmaker” type, so I would focus on doing the client work. But that was unwise.

You will enjoy the practice of law a lot more if you bring in your own clients, and you need to start developing the skills to do that from day one. Law schools are not going to teach those skills, and it would be folly for them to try.

The good news is that you can learn those skills. Find yourself a mentor if you can, or at least follow some rainmakers on Twitter. 

And now for the true wisdom . . .

48. “Wait, law students wouldn’t believe that? What, did they not do article review for their journals?”

49. “Despite depictions in ads and website photos, you would be surprised to learn that lawyers rarely stand around with their arms crossed.”

50. “Some associates take bathroom breaks. Stunning to me. I didn’t go until my 8th year.”

These responses actually made me lol.

See, I told you Twitter isn’t all bad. Now, Facebook? Facebook sucks. 

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IMG_4571Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. Be sure to follow his Facebook page @fiveminutelaw

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.

 

Takedown: How To Protect Your Intellectual Property From Infringement on Social Media

Takedown: How To Protect Your Intellectual Property From Infringement on Social Media

Whether you’re a small business, a multi-national corporation, an entrepreneur, or a social media “influencer,” chances are someone at some point is going to use your content on some kind of social media. You don’t want to just let this go, but at the same time, you don’t want to break the bank hiring a lawyer to send a demand letter every time it happens.

What can you do? Is there any fair, quick, and inexpensive method for addressing these issues?

For blatant infringement, yes. For closer cases, no. Social media platforms just aren’t going to take the time and effort to adjudicate intellectual property disputes between their users and the complainers in any satisfying way.

You’ve got two basic choices when someone uses your intellectual property on social media. Either submit a complaint through the platform’s portal and hope for the best, or have a lawyer send a demand letter and, if it becomes necessary, file a lawsuit. The first option is unlikely to get you what you want, and the second option is time consuming and expensive.

Still, doing nothing is not a good option. So if you’re a business owner or a lawyer who represents businesses, it’s worth your time to understand both the basic legal principles and the practical avenues available.

The first step is to understand the kind of “intellectual property” at issue. Nine times out of ten, if someone is posting your material on social media, it will be either a copyright or trademark issue.

So if you’re going to handle the takedown notice, you will need some understanding of the difference between copyright and trademark. This is important because the standards for copyright infringement and trademark infringement are entirely different, and because you need to select the right portal to submit your notice.

Copyright vs. Trademark

Copyright protects original works of expression. Think novels, poems, movies, TV shows, paintings, sculptures, music recordings, blog posts, just to name a few. For example, if you write and record a song and someone posts a copy of your recording on YouTube, that’s copyright infringement (potentially).

Trademark law, in contrast, protects words, short phrases, logos, and other things that function as source identifiers for goods or services. MCDONALD’S—and the golden arches—are trademarks for fast food restaurants. APPLE is a trademark for smartphones and computers. FIVE MINUTE LAW is a trademark for law blogs.

As with all things in the law, there are borderline cases. Does copying a seven-second clip from an iPhone commercial raise copyright or trademark issues? Law school professors love that kind of stuff.

But most of the time, if someone is using your content, it will be pretty obvious which one it is. Are they using your name or logo in a way that suggests they have some connection to you? Probably trademark. Are they copying some significant portion of a work of expression you created? Probably copyright.

This is an important distinction to figure out up front, because copyright law and trademark law are significantly different. But they do have one thing in common: you don’t have to register to have a valid copyright or trademark, but registration does give you certain additional rights that can be important. More about that later.

Let’s start with copyright, because it’s simpler.

Copyright Infringement on Social Media

The paradigmatic case of copyright infringement on social media is a copy of a recorded song posted on YouTube. This is so ubiquitous, I understand the young people don’t even buy music anymore. Why buy when you can just go to YouTube?

Let’s say I post a copy of “Honky Tonk Bodankadonk” on my YouTube channel, That Non-Compete Lawyer. Did I just infringe Trace Adkins’ copyright? The short answer is yes.

And by the way, it doesn’t matter if I include one of those disclaimers like “I do not own the rights to this recording . . .”

I don’t know why this kind of disclaimer became so popular. It has virtually zero legal effect. It’s like robbing a bank but carrying a sign that says “NO THEFT INTENDED.” If anything, it’s evidence that you knew you were infringing the author’s copyright.

But did YouTube infringe Trace’s copyright?

That’s a little more complicated. It’s one thing to hold a small-time litigator liable for copyright infringement. It’s another to hold a multi-billion-dollar social media company responsible. We can’t have that!

Fortunately, we have lobbyists and Congress to thank for passing the Digital Millennium Copyright Act (DMCA) in 1998. Its main purpose is to protect Internet service providers from copyright infringement claims.

The DMCA establishes a “notice-and-takedown” regime that applies to copyright infringement on social media. A social media platform can avoid liability if, “upon notification of claimed infringement,” it “responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.” 17 U.S.C. § 512(c). See also Jon M. Garon, Tidying Up the Internet: Takedown of Unauthorized Content Under Copyright, Trademark, and Defamation Law, 41 Cap. U. L. Rev. 513 (2013).

Naturally, to avail themselves of the protections of the DMCA, all the major social media platforms have dedicated online portals where you can give notice of alleged copyright infringement (if you can successfully identify all the crosswalks in a photo).

For example, this is YouTube’s copyright infringement notice page:

Screen Shot 2020-02-09 at 3.28.06 PM

Of course, that’s not the only way YouTube and other sites police copyright infringement. There is also automated copyright infringement detection. YouTube, for example, has a system called “Content ID” that automatically scans uploaded videos to compare them to its massive database of files submitted by content owners. If people copying and posting your stuff is a recurring issue, consider using the Content ID system to nip infringement in the bud.

Otherwise, you will need to submit a takedown notice. If it’s an obvious case of copying, that will probably be enough to get the infringing copy removed.

In contrast, I doubt that submitting a notice through a routine portal is going to work in less obvious cases. It’s not like YouTube employs a staff of musicologists to sit around trying to figure out if Robin Thicke’s “Blurred Lines” is substantially similar to Marvin Gaye’s “Got To Give It Up” or just has the same basic style.

But for most content creators, the issue is blatant copying, not borderline cases. And in those cases, the notice-and-takedown approach encouraged by the DMCA probably works pretty well.

If anything, notice and takedown may work too well in copyright cases. That’s because not all copying is unlawful. You might have noticed a reference to “fair use” on the YouTube page shown earlier. Fair use is an exception to copyright infringement.

Copyright “Fair Use”

It’s important to understand what fair use is and what it isn’t. It’s not a magic wand to be waved any time someone claims copyright infringement. Rather, fair use refers to various types of copying that the law allows because of their purpose.

And it’s a fuzzy term. That’s because the statute that codifies the fair use doctrine refers to fair use of a copyrighted work “for purposes such as . . .” 17 U.S.C. § 107. Then it lists some non-exclusive examples of fair use: “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.” Id.

The statute goes on to provide a list of non-exclusive factors determining whether a particular use of a work is fair use:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

So let’s say I have a YouTube channel where I review country music albums. If I play 10 seconds of “You Ain’t Much Fun (Since I Quit Drinking)” as part of my review of Toby Keith’s album Boomtown, that’s probably fair use.

I can only say “probably” because, again, fair use is a fuzzy concept in copyright law.

If that bothers you, then you really won’t like trademark law. It’s even fuzzier.

Trademark Infringement on Social Media

It’s not that hard to understand what a trademark is. I gave some obvious examples earlier. It’s harder to understand whether someone else’s use of your trademark is infringing or not. And it can be even more difficult to get a social media site to remove someone’s infringing use of your trademark.

Why is it relatively easy to get a social media platform to remove copyrighted material, but harder to get trademarked content taken down?

Let’s start with the DMCA. It applies to copyright infringement, not trademark infringement. There is no equivalent statute for trademarks. So the legal framework is not as clear when it comes to trademarks.

Still, just as they do for copyright infringement, the major social media platforms have specific portals for owners of trademarks to submit takedown notices. For a helpful list with links to the takedown pages for the biggest players, see How to Protect Your Trademarks on the Top 6 Social Media Platforms.

The thing that really makes trademark harder than copyright is deciding whether the use of a trademark is infringing. Just copying someone’s trademark is not necessarily infringing. Trademark infringement happens when someone uses your trademark—or something similar to it—in a way that creates a likelihood of confusion regarding the source of goods or services.

Remember, the key thing about a trademark is that it is a source identifier.

Let’s consider some simple examples. If I use the word APPLE to sell actual apples, that’s not trademark infringement. That’s a “generic,” non-infringing use of the mark. Similarly, if I tell a new client “don’t worry, you’re in good hands,” I probably haven’t infringed Allstate’s trademark, because I’m just using the phrase in a descriptive sense. In contrast, if I use APPLE to refer to my company’s knockoff laptops, I will probably get a nastygram from some lawyer in Cupertino. That’s trademark infringement.

Screen Shot 2020-02-09 at 11.11.55 PM
My use of the Apple logo in a blog post is an example of “fair use”

But what if I use the famous APPLE computer logo in a blog post about computers? Is that infringement?

This is where it gets harder. It depends on how I use it. If I use the trademark in a way that does not cause source confusion, that is “non-infringing” use. To make this even more complicated, trademark law also refers to some kinds of non-infringing use as “fair use,” which is not the same thing as copyright fair use. And then there are two kinds of trademark fair use, “traditional” and “nominative.”

But let’s not go down that rabbit hole now. Let’s focus on the practical. Assume someone is improperly using your company’s trademark in a way that suggests some sponsorship, affiliation, endorsement, or approval by your company. That creates a “likelihood of confusion,” which equals infringement. What can you do?

Trademark Takedown Notices

As with trademarks, the major social media platforms make it fairly convenient to submit a notice that someone’s content infringes your trademark. See the links in the “Top 6” article cited above.

This is where registration, also mentioned earlier, can be helpful.

Keep in mind, it is the use of a trademark, not registration, that creates trademark rights, and you don’t have to register a trademark to have trademark rights. But as a practical matter, your takedown notice will have a better chance of success if your trademark is registered.

Shannon Montgomery, a lawyer who represents social media influencers, explains this point here. See, social media sites are just not that into evaluating the strength of your claim to an unregistered, “common law” trademark. So check out this video by attorney Aiden Durham to educate yourself on trademark registration.

Unfortunately, even if your trademark is registered, social media platforms are still not that interested in adjudicating trademark disputes. And they make no bones about it. YouTube, for example, says the following on its trademark policy page:

If you are a trademark owner and you believe your trademark is being infringed, please note that YouTube is not in a position to mediate trademark disputes between users and trademark owners. As a result, we strongly encourage trademark owners to resolve their disputes directly with the user who posted the content in question.

Let me translate: don’t bother us with your trademark claim, bother the person who used your trademark.

But there’s good news. YouTube adds this: “Contacting the uploader may resolve things more quickly in a way that is more beneficial to you, the uploader, and the YouTube community.”

Just contact the uploader. That’s easy enough, right? For one thing, every YouTube post includes the name and contact information of the uploader, right? And when you contact the uploader and tell them they need to stop using your trademark, they’re sure to be reasonable and cooperate. What could possibly go wrong?

I’m jk, of course. It never goes like this.

At best you’ll get someone who means well but doesn’t understand trademark law. At worst you’ll get a troublemaker who is openly hostile to your client. So getting people to take down content that infringes your client’s trademark is not simple or easy. And even if you succeed, the same guy may do it again next week. I think the arcade game “Whack-A-Mole” was created just to give trademark lawyers a metaphor to overuse.

No, contacting the infringer is usually not an attractive option. So you submit your trademark complaint through the online portal. What are the chances of success? Let’s use YouTube as an example again.

To YouTube’s credit, when you submit a trademark takedown notice by email, you promptly receive a personalized note from “The YouTube Team.” It looks something like this:

 

Screen Shot 2020-02-09 at 4.44.16 PM.png

In case you missed it on the policy page, this note provides a friendly reminder that “YouTube is not in a position to mediate trademark disputes between users and trademark owners.” You can see where this is going.

Tell your lawyer to prepare the demand letter.

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IMG_4571Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. Follow @zachwolfelaw on Instagram to keep up with his latest shenanigans.

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.

Florida Man Friends Judge on Facebook, Defeats Motion to Disqualify

Florida Man Friends Judge on Facebook, Defeats Motion to Disqualify

Shortly before Election Day 2018, I had a temporary injunction hearing where the judge made an interesting statement. After the close of evidence, the judge said he would take the injunction under advisement. Then he added that he had a campaign fundraiser that evening and did not want to see any of us there. Because “that just ain’t right,” he said.

I appreciated the judge doing this. I don’t think he was concerned that someone showing up at his fundraiser would sway him one way or the other, but he understood how it would look. I think he wanted to avoid even the appearance of impropriety.

The funny thing is, it would have been perfectly legal and ethical for us lawyers to show up and hand checks to the judge—at least under Texas rules and the cases applying them. Texas courts have repeatedly held that  a lawyer’s campaign contributions to a judge do not require recusal. They brush aside the obvious appearance of impropriety for pragmatic reasons: if campaign contributions were disqualifying, Texas judges would have to recuse themselves in half their cases.

The judge’s statement stayed on my mind after the election, when headlines focused on  the great State of Florida.

I love Florida for two reasons. First, Disney World. Second, the great headlines.

You know the kind of headlines I’m talking about:

Florida Man Breaks Into Jail to Hang Out With His Friends 

Florida Woman Calls 911 Three Times Over McDonald’s Chicken McNugget Shortage

Florida Clerk Smashes Jar of Ranch Dressing Onto Darth Vader Armed Robber 

Florida Strip Club Offers Free Flu Shots

Florida Supreme Court Rules That Facebook Friendship Does Not Disqualify Judge

Which of these do you think are real?

Ok, it’s a trick question. The answer is “all of the above.”

“Friends of an indeterminate nature”

The headline about a judge’s Facebook friendship is the most recent. Last week, the Florida Supreme Court held in a 4-3 decision that the mere fact that a judge is Facebook “friends” with a lawyer in a case before the court does not require disqualification of the judge.[1]

If that sounds familiar, maybe it’s because I wrote about the earlier Florida Court of Appeals decision in Social Media in Litigation Part 3: Why Can’t We Be Friends?

The underlying case was a civil suit by a law firm against a former client. After filing the lawsuit, the law firm hired a lawyer listed as a “friend” on the trial court judge’s personal Facebook page. It appears this was the only evidence regarding the relationship between the judge and the lawyer.

To disqualify a judge under Florida law, the movant must have a “well-grounded fear” that he will not receive a fair hearing. The question is whether the facts alleged “would place a reasonably prudent person in fear of not receiving a fair and impartial trial.”[2]

Note this has a subjective and an objective component. The subjective question is whether the movant fears the judge won’t be fair—not whether the judge will actually be unfair. The objective question is whether that fear is reasonable.

After laying out this standard, the Florida Supreme Court did what courts usually do when confronted with a new issue involving social media: analogize to pre-social media conduct. So the court started out by asking whether a “traditional” friendship between a lawyer and judge requires disqualification.

The mere existence of a friendship does not inherently reveal the degree or intensity of the friendship, the court said. “It follows that the mere existence of a friendship between a judge an attorney appearing before the judge, without more, does not reasonably convey to others the impression of an inherently close or intimate relationship.” Thus, “[n]o reasonably prudent person would fear that she could not receive a fair and impartial trial based solely on the fact that a judge and an attorney appearing before the judge are friends of an indeterminate nature.”[3]

That is why, under Florida law, “an allegation of mere friendship between a judge and a litigant or attorney appearing before the judge, standing alone, does not constitute a legally sufficient basis for disqualification.”[4]

The Florida Supreme Court then applied these principles to a Facebook friendship. You can already see where this is going. If a friendship IRL does not require disqualification, why should a Facebook friendship require it?

The court made the obvious observation that a Facebook “friendship” is not “as a categorical matter” the equivalent of a “traditional” friendship. That means a Facebook friendship “does not objectively signal the existence of the affection and esteem involved in a traditional ‘friendship.’”[5]

It’s common knowledge that Facebook friendship varies in degree from “greatest intimacy” to “virtual stranger” to “complete stranger,” the court said. “It is therefore undeniable that the mere existence of a Facebook ‘friendship,’ in and of itself, does not inherently reveal the degree or intensity of the relationship between the Facebook ‘friends.’”[6]

In short, “the mere fact that a Facebook ‘friendship’ exists provides no significant information about the nature of any relationship between the Facebook ‘friends.’”

The court concluded:

Therefore, the mere existence of a Facebook “friendship” between a judge and an attorney appearing before the judge, without more, does not reasonably convey to others the impression of an inherently close or intimate relationship. No reasonably prudent person would fear that she could not receive a fair and impartial trial based solely on the fact that a judge and an attorney appearing before the judge are Facebook “friends” with a relationship of an indeterminate nature.[7]

The court added that its holding was in line with the majority of state ethics committees that have considered whether a Facebook friendship between a judge and a lawyer creates an appearance of impropriety.

Of course, we must not read too much into this. The issue was narrow: whether a Facebook friendship standing alone was sufficient to warrant disqualification.

A relationship “fraught with risk”

Nevertheless, three dissenting justices in the Florida case would have required disqualification even on this narrow basis. Justice Pariente wrote in dissent that “a judge’s involvement with social media is fraught with risk that could undermine confidence in the judge’s ability to be a neutral arbiter.” He would adopt a strict rule requiring judges to recuse themselves whenever an attorney with whom they are Facebook “friends” appears before them.[8]

The dissent did not question the standard for disqualification cited by the majority, nor did it dispute the case law dealing with actual friendship. Rather, the dissent questioned the majority’s premise that Facebook friendship is analogous to traditional friendship. “[E]quating friendships in the real world with friendships in cyberspace is a false equivalency,” the dissent argued.[9]

Wasn’t that the majority’s point? A Facebook friendship is not the equivalent of a traditional friendship, the majority said, so if a traditional friendship doesn’t automatically require disqualification, a Facebook friendship shouldn’t either.

But the dissenting opinion touches on three things  that make a Facebook friendship potentially more problematic.

First, a Facebook friendship is public. Unlike a traditional friendship, which the parties may not even know about, a Facebook friendship is typically there for everyone to see. And it’s the appearance of impropriety—and the resulting loss of confidence in the integrity of the judicial system—that matters most.

Second, unlike some other social media platforms, Facebook allows the user to select and reject friends. “[T]he selection and rejection function is what causes the potential for the appearance of impropriety, after the judge has established the social networking profile that affords the judge the ability to accept or reject ‘friends.’”[10]

Third, the dissent seems worried that social media is just too risky for judges. “An individual judge’s social media, whether it is Facebook, LinkedIn, Instagram, or any other site, is fraught with concerns for the average litigant.”[11]

On this point at least one member of the majority agreed. Justice Labarga agreed with the majority that disqualification was not required but wrote a concurring opinion to “strongly urge” judges not to participate in Facebook. “[J]udges who elect to maintain Facebook ‘friendships’ with attorneys who have any potential to appear before them are, quite simply, inviting problems.” That means “the safest course of action is to not participate in Facebook at all.”[12]

That is obviously the “safest” thing for judges to do with social media. But is it the best thing? Could there be some benefits to judges engaging with lawyers and others on social media? Let me know what you think on my LinkedIn, Twitter, Instagram, YouTube, or Facebook.

Unless you’re a judge; that wouldn’t look right. Instead maybe I’ll see you at your next fundraiser.

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Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. Follow @zachwolfelaw on Instagram to keep up with his latest shenanigans.

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 and Herssein v. United Servs. Auto. Ass’n, 271 So.3d 889, 897 (Fla. 2018).

[2] Id. at 894 (citing some cases).

[3] Id.

[4] Id.

[5] Id. at 896.

[6] Id. at 897.

[7] Id.

[8] Id. at 900 (Pariente, J., dissenting).

[9] Id. at 901.

[10] Id. at 902.

[11] Id. at 903.

[12] Id. at 899-900 (Labarga, J., concurring).

Social Media in Litigation Part 4: Jury Research

Social Media in Litigation Part 4: Jury Research

When I sat at the counsel table in 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.

*UPDATE: The Social Media Subcommittee of the Texas Supreme Court Advisory Committee (affectionately known as SMSTSCAC) weighed in on December 1, 2017. The subcommittee sided with the ABA approach in this memo, recommending the following comment to Texas Disciplinary Rule of Professional Conduct 3.6: “A lawyer’s review of a venireman’s or juror’s website or electronic social media (ESM) that is available without making an access request, is not an improper ex parte communication.” The subcommittee also gave a charitable shout-out to Myspace in footnote 1.

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.

*UPDATE: In its December 1, 2017 memo, the Social Media Subcommittee of the Texas Supreme Court Advisory Committee noted this issue: “Should counsel, in undertaking the permissible review of a venire member’s or juror’s ESM, discover improper conduct by that individual, what is the obligation to advise the court?” The subcommittee made no recommendation but did cite two disciplinary rules: 3.03(a)(2) (“A lawyer shall not knowingly fail to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act”) and 3.06(f) (“A lawyer shall reveal promptly to the court improper conduct by a venireman or a juror . . . of which the lawyer has knowledge”).

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Zach Wolfe
(zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. His invitation to join SMSTSCAC must have been lost in the mail.

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 Social Media Subcommittee of the Texas Supreme Court Advisory Committee issued this memo. The subcommittee recommended writing 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:

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The subcommittee also proposed a detailed comment. The comment agrees with the recent Florida case that a lawyer’s “friend” status with a judge does not necessarily require recusal: “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 and is not, in and of itself, determinative of whether a judge’s impartiality might reasonably be questioned.”

But the comment also gives judges several warnings about potential problems arising from use of social media, including: be mindful of privacy settings and public access, be mindful of the Code’s prohibitions when making public endorsements, and use extreme comment to avoid interactions that may be interpreted as ex parte communications concerning pending cases. In short, mindfulness and caution.

This proposed rule 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.

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Texas recommends judges practice mindfulness when using social media

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. 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.

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.

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IMG_4571Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. Follow @zachwolfelaw on Instagram to keep up with his latest shenanigans.

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.”

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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.

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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.

*UPDATE: In its December 1, 2017 memo, the Social Media Subcommittee of the Texas Supreme Court Advisory Committee noted, but did make a recommendation, on several issues including:

“(B) May attorneys ethically advise their clients to delete or change content on the client’s ESM or websites?”

“(C) May attorneys ethically advise their clients not to comment on pending litigation or otherwise restrict the use of their ESM?”

“(D) May attorneys ethically advise their client to change their privacy settings, for example, from public to private, until litigation is concluded” (citing New York County Ethics Opinion 745)

___________________________________________________________________

IMG_4571Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC.  

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

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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.

*UPDATE: In its December 1, 2017 memo, the Social Media Subcommittee of the Texas Supreme Court Advisory Committee noted, but did not analyze this issue: “May attorneys ethically investigate the ESM of other parties or witnesses?”

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IMG_4571Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. So far, he has been too cheap to upgrade to a premium account on LinkedIn. 

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.