By: Denise M. Champagne//September 12, 2014
By: Denise M. Champagne//September 12, 2014//
Technology has brought data storage a long way from putting papers in a folder and locking them in a file cabinet. Not only is there much more information to store today, but so many different places to put it and so many potential pitfalls along the way.
To help guide attorneys from falling between the cracks, a seminar on “Ethics and Social Media in Commercial Cases” was presented Wednesday by the Monroe County Bar Association and the New York State Bar Association’s Commercial and Federal Litigation Section.
Among the risks, according to attorney Adrian Dayton, founder of ClearView Social in Amherst, is putting too much information in an introduction such as saying you work for the largest energy company in the city which, with little research, is easy to figure out, inadvertently identifying the company.
Other risks include unintentionally creating an online attorney-client relationship through casual communication and inadvertently identifying a client by tweeting out you just got back from a particular court on a major case.
“Don’t say stupid things online,” he advised, relating a story about a lawyer who was fired after expressing hatred toward her client on Facebook, saying she would not identify the well-known company, but saying a word that rhymed with its name, making it easy for anyone who read the post to identify the client.
Dayton founded ClearView Social as a social media sharing and analytics application for law firms, allowing attorneys to more easily share content with their professional networks through various platforms such as Twitter and LinkedIn.
Brighton attorney Nicole Black, author of “Cloud Computing for Lawyers,” advises firms to have a social media policy in place to guide employees and avoid confusion. She is also director of business development and community relations at MyCase Inc., Web-based practice management software for lawyers; and a columnist for The Daily Record.
The panel was co-moderated by Pittsford attorney Scott L. Malouf, also a Daily Record columnist, who also chaired the seminar, and Supreme Court Justice Matthew A. Rosenbaum, assigned to the Commercial Part, who also participated on the panel.
Topics included marketing; investigations involving parties, nonparties and jurors; judicial perspectives; and common technologies.
Malouf asked about attorney research, using information available on public websites.
Black said it is OK to use what is publically available, but cautioned about using information from sites where one has to connect with someone to see what is behind the firewall, such as “friending” someone on Facebook. She also advised against deceptive tactics, saying if you send a friend request or make contact on other sites, be honest with the recipient about why you are making contact.
“What about researching jurors?” Malouf asked.
Black said various ethics opinions say this is OK too with one exception — passive notification in which the contacted site reveals your identity to the juror. She suggests changing personal settings to anonymous.
Peter Coons, senior vice president, professional consulting group D4 LLC in Rochester, said technology provides an amazing ability to research jurors, whereas in the past, firms may have hired private investigators.
As an example, he said a juror may indicate they are an animal lover, allowing attorneys to adapt that information in their questions and analysis of prospective jurors.
Facebook posts have also been used in trials, but Coons said the caution there is the account owner may deny setting it up and say someone else used his or her name to create the site.
Judge Rosenbaum said he has never had a colleague say they had a problem with attorneys looking at jurors’ information, but added the average age of area Supreme Court justices is 61 and not many actively use the popular platforms.
He said he does not have a problem with attorneys researching to find the best information to help their clients, as long as they stay within ethical boundaries.
Malouf asked if one party does online research and the other does not, does the first party have to share with the second? The general consensus is both parties have access, whether it is their own or using courtroom Wi-Fi, so it is up to each party to exercise due diligence.
Judge Rosenbaum said the issues are different when it comes to jurors and that he repeatedly advises them not to research or relate case-related information online. He said any issues regarding jurors discussing facts of the case, parties or issues needs to be brought to the attention of the court.
Coons talked about how online research and comments by clients can backfire.
He said there was a verdict in a Florida age-discrimination case involving a prevailing school headmaster whose daughter violated a confidential settlement agreement by posting comments online, saying her European summer vacation was on the school and to “suck it.” The school appealed and the headmaster lost $80,000 of the settlement.
Coons also warned attorneys about accessing confidential documents on public networks or free cloud services, saying it leaves the door open to being hacked.
“I think you just need to be really careful about what you put up there,” he said. Black agreed, but said storing information in the cloud is not that different than sending closed case files to offsite storage facilities or leaving files on a desk where they may be viewed by the cleaning crew.
She added attorneys need to exercise due diligence.
Someone from the audience of about 40 people asked if it is wrong to advise a client to remove things from their online sites, bringing up preservation and spoliation issues, which are also addressed in the NYSBA publication “Social Media Ethics Guidelines,” published by the Commercial and Federal Litigation Section, available at www.nysba.org.
The section’s chair-elect, Mark A. Berman, introduced the speakers. He said the goal is to bring programs upstate more often, including a bench-and-bar forum this fall.