eDiscovery and Social Media: The Duty to Preserve

The rise of Social Media has created numerous questions and issues when it comes to our ethical responsibilities. Can we advise clients to modify their Facebook page to make sure there are no offensive posts should a juror decide to look them up during trial? How about suggesting selective edits of certain portions of an Instagram page, or suggesting that a client add certain items to a Pinterest page to look more socially acceptable? All of these situations implicate an important ethical responsibility lawyers have regarding potential evidence: the duty to preserve. While it is ethically permissible to advise a client on actions they may take in the future, courts have come down hard on litigants and attorneys who have failed to preserve evidence contained in Social Media accounts. Here are several important rulings regarding the duty to preserve social media evidence from 2013: In Gatto v. United Air Lines, Inc., No. 10-CV-1090-ES-SCM, 2013 WL 1285285 (D. N.J. March 25, 2013), the court found that the plaintiff’s actions to deactivate his Facebook account during litigation amounted to spoliation of evidence. In Gatto, plaintiff’s Facebook account had been the subject of numerous discovery requests and at least one discovery conference. Id at *1-2. Plaintiff even adjusted the password to give defendants access, although discussion about the extent of access defendants would have was ongoing. Id. However, after being notified of access to his Facebook account from an unknown IP address, plaintiff deactivated his account. Id. Facebook permanently deleted the account information, and the court held that it was likely that, contrary to plaintiff’s assertions, he had taken steps beyond simple... read more

Tweets of Wrath: This Attorney Didn’t Listen (Part 2)

Illinois Attorney Betty Tsamis, the subject of my article Tweets of Wrath: This Attorney Didn’t Listen, has received a reprimand for violating ethical rules regarding client confidences and maintenance of her client trust account. Ms. Tsamis is most recognized for her reaction to her client’s Avvo review, which I discuss at length in the above-cited article. The full text of the decision can be read here, but the decision is notable in that it appears to go to great lengths to avoid discussion of her violation of the rules regarding the Avvo review. In fact, the sanction itself appears to be primarily based on her violation regarding management of her trust account. None of the mitigating factors appear to directly address her conduct regarding the Avvo review, and none of the language that Ms. Tsamis consented to even mentions her conduct in responding to the review. The reprimand itself even omits the actual language of Ms. Tsamis’s response that allegedly violated attorney-client confidentiality. Speaking to the ABA Journal, one of Ms. Tsamis’s attorneys said: “While we believe that Ms. Tsamis’ conduct was within the [ethics rules], this matter raises an important issue for all lawyers—especially those who are active on attorney-review websites and have the opportunity to comment on client reviews posted to these types of websites. “Lawyers should be cautious that if they choose to respond, that their response does not exceed what is necessary to respond to the review and should be mindful that they do not reveal client confidences in violation of the rule. Ms. Tsamis recognizes the importance of Rule 1.6 and the need to... read more

7 Outstanding Contact Management Apps for Lawyers

Ever since I got my first smartphone, it was an iPhone 3, I’ve been incredibly impressed with the functionality of the devices. They keep getting faster, have better cameras, and have better screens. I used to remark with a chuckle that the only thing those earlier iPhones really didn’t do well was the actual “phone” part. However, that wasn’t entirely true. One of the other things it really didn’t do well was put my contacts into an easy-to-navigate list with an intuitive interface. With a long list of names, displaying duplicates if my home computer and my office Exchange had the same name, I’ve never found the stock address book to be a very effective way to manage my contacts. Particularly as an attorney, I was always a bit nervous about having the names of my clients mixed right in with my family. What I needed was a contact management app that had a truly intelligent design, one that allowed for grouping of contacts in ways beyond those contemplated by the original designer of the Rolodex. What I’ve found is pretty cool. Here are 7 Outstanding Contact Management Apps for Lawyers: 1) Tacts: Smart Contact Manager Developer: TernTek Platform: iOS Price:$1.99 Tacts is an intelligent contact management app with an incredibly user-friendly interface and impressive functionality. As soon as you import your contacts from your iOS device, Tacts will begin organizing your contacts into Smart Groups based on various criteria, such as hometown. Tacts also comes equipped with a Groups Management feature that allows you to send group emails and text messages and a Top Contacts section based on... read more

6 Ways to Avoid Expensive Pay-Per-Click Advertising Mistakes

Advertising on the Internet is a different and unique medium for promoting your product or service. Nothing serves as a better example than the incredibly popular – and effective – Pay-Per-Click advertising. By creating an ad and selecting the appropriate keywords, your ad pops up when users enter those keywords into their search. Unlike traditional forms of advertising, you only pay for the advertising when someone clicks on your ad. Pay-per-click advertising is incredibly popular among lawyers, in particular. In fact, the keywords “attorney” and “lawyer” are among the ten most expensive keywords on Google’s AdWords PPC program. Given the cost, you really need to make sure that you’re getting the most you can get from your pay-per-click advertising campaign. Here are 6 Ways to Avoid Expensive Pay-Per-Click Advertising Mistakes: 1) Check your local ethics rules Let’s be honest, this should be your first step when considering any advertising venture. It would be rather silly to spend time and money on an ad campaign only to get slapped with an ethics charge that could have easily been avoided. As a unique form of advertising, PPC ads have their own ethical issues that go along with them. On top of making sure you meet all the regular advertising requirements, you need to check your local rules to find out if there are any specific requirements regarding the keywords you choose. In North Carolina, it’s considered misleading under the rules to use the name of a competing law firm as a keyword, in an attempt to direct some of their customers to your site. While this particular rule does not apply... read more

5 Totally Fixable Ways Law Firms Suck at Using Social Media

It’s hard to start doing something without knowing how to do it, particularly when you look around and see others doing it with ease. Whether its swinging a golf club, painting a picture, or learning an instrument, there’s a reason why nobody is able to do those things perfectly (with a few notable exceptions) right away. It takes time and energy to increase skill, and experience teaches many lessons. Yet starting that process as a novice while those around you are experts isn’t fun. That’s the position most attorneys find themselves in when it comes to using social media. Other industries that adopted social media sooner (okay, all industries other than medicine) have invested time and energy into their social media plans. They’ve had the practice, and – importantly – learned from mistakes, and they’re better for it. Getting the most out of social media requires practice, patience, and experience. It requires time and investment. It also takes a willingness to challenge your preconceived notions about social media. Sadly, too many attorneys refuse to invest the time and energy needed for using social media, and end up doing it badly. Many of the problems, though, could be fixed with a little patience. Here are 5 Totally Fixable Ways Law Firms Suck at Using Social Media: 1) Assuming that simply being on Social Media equals engagement. My favorite version of this particular issue isn’t actually about a lawyer. For years, Warren Buffett wasn’t on Twitter was because he was technology averse. That was it, he wasn’t on Twitter. Until May 2, 2013, when he sent his first tweet. As of... read more

Not Hyperbole: The Internet Won’t Be The Same Without Net Neutrality

Today, the D.C. Circuit Court of Appeals ruled that key provisions of regulations promulgated by the FCC, referred to as the “Open Internet Rules” (or “Net Neutrality” to most), were outside the agency’s authority. Specifically, the court held that rules requiring broadband internet service providers to treat all internet traffic equally were beyond the FCC’s powers, because broadband providers are not considered “common carriers.” The ruling did acknowledge the broad authority of the FCC to regulate internet service providers under existing federal law. However, the court held that broadband ISPs could not be regulated as “common carriers,” who are required to pass whatever they carry (passengers on trains and telephone calls, for examples) without preference. Without Net Neutrality, without the broadband ISPs treating all information equally, they have strong incentive to put profits ahead of innovation. In fact, as the court made mention, they’re already doing it. Without Net Neutrality, the Internet will never be the same. The ruling itself, somewhat of a bizarre split-the-baby decision, spends a considerable amount of time acknowledging that the FCC has a point regarding the need to regulate broadband ISPs: “Equally important, the Commission has adequately supported and explained its conclusion that, absent rules such as those set forth in the Open Internet Order, broadband providers represent a threat to Internet openness and could act in ways that would ultimately inhibit the speed and extend of future broadband deployment. … Broadband providers also have powerful incentives to accept fees from [website] providers, either in return for excluding their competitors or for granting them prioritized access to end users. [] Indeed, at oral argument... read more

How To Streamline Your Law Practice by Using Multiple Monitors

Using more than one monitor at your desktop workstation was once considered to be a luxury for hard-core gamers and graphic designers. However, since the implementation of the flat-panel monitor, valuable real estate on your desk has opened up. Combined with rapidly falling prices for desktop monitors, and it’s the perfect time for you to upgrade your desktop with another monitor. But that second monitor isn’t just a status symbol. It’ll most likely improve your efficiency – by as much as 50% when performing certain tasks – and it’ll save you time. Did you know that when you switch between programs on your computer using Alt+Tab, not only do you have to wait for that new window to load, your brain actually experiences a short delay as both it and your eyes readjust. Over the course of a day, you lose a considerable amount of time, potentially measurable in hours, due to those delays. So instead of wasting your time on non-billable tasks, you can be providing actual legal counsel to your clients, or spending some valuable time with your friends and family. Or drinking and watching the game. Who am I to judge? But before you run out and get a second monitor, check out these tips on How to Streamline Your Law Practice by Using Multiple Monitors: 1) First, make sure your computer (and desk) supports multiple monitors. “Measure twice, cut once.” Before you even begin shopping for  your glorious new monitor setup, you have to know what you’ve got to work with. The ideal size for today’s computer monitors is likely to be in the range of 20-24... read more

5 Reasons Florida’s Ethical Rules on Advertising are Ridiculous

Florida is renowned for having some of the most restrictive ethical rules on advertising. I recently discussed how the ethical opinions of the Florida Bar concerning use of social media was reminiscent of an old man yelling at children to get off his lawn. However, thanks to new amendments to the Florida ethics rules, the restrictions on advertising by attorneys, particularly online, have become much more onerous. A new federal lawsuit, brought by the partners of Searcy Denney Scarola Barnhart & Shipley, challenges both the terms and application of Florida’s advertising rules. The lawsuit, Searcy et al. v. The Florida Bar, 4:13-cv-664-RH-CAS, filed in federal district court, alleges that Florida’s ethics rules, as amended effective in May 2013, violate the 1st Amendment free speech protections and are unconstitutionally vague, even as applied. While the outcome of the lawsuit will not be known for some time, here are 5 Reasons Florida’s Ethical Rules on Advertising are Ridiculous: 1) The Filing Requirements Advertisements for legal services, subject to a few exceptions – including websites, must be filed with the Florida bar at least 20 days before the ad is used. And you have to pay $150 for the privilege of having EACH ad reviewed. And even preliminary approval isn’t a guarantee that your ad won’t be a violation of the rules. Although the filing requirement does not apply to websites, it does apply to any other type of internet advertising, and MAY apply to any entry on a Social Media site. Oh, and your filing MUST be sent by mail. That’s right, you can’t send it by fax OR email, as shown... read more

10 Apps That Do WAY More Than You Thought

Today I came across an article on Lifehacker.com – a great list of 10 Apps and Services That Are More Than Meets the Eye. I’ve always believed that part of my job here on this blog is to inform those who provide or perform legal services with information about what’s new in the world of tech. However, an equally important job is to make sure I’m helping you get the most from what you already have. With that in mind, here are 10 Apps That Do WAY More Than You Thought: 10) Google Voice Although little has been updated in Google Voice since it premiered – hopefully not a sign that Google plans to do with Voice what it just did with Bump – the app still has a lot of great features that lawyers can utilize. Aside from allowing you to forward calls AND send and receive texts from your computer, Google Voice’s voicemail-to-text feature alone is worth the time and money. But guess what, that voicemail-to-text feature isn’t necessarily just for voicemails! Dictate into Google Voice while you’re on the road. What about those regular voicemails? Well, failure to return important client communications is one of the top ethical complaints against attorneys. Use your ability to filter through your voicemail through your Gmail account, and always know which calls are from your clients, and which ones you can safely ignore for a while! 9) Text Expanders Odds are your most intimate experience with text expanders comes in the form of your firm’s billing software (if you enter your own time, that is). Ever noticed how they’re set... read more

Allow Social Media in Every Courtroom… NOW!

“I watched the whole thing unfold on Twitter. The information came in faster, more clearly, and much more accurately than the reporting on the news.” – A friend discussing using Twitter to learn more about the Boston Bombing. With fewer and fewer trained journalists reporting on local, regional, and national events – a 30% decrease since 2000, according to the Pew Research Center, our media discourse has suffered greatly. Local newspapers, who used to provide most of the reporting on local issues, are closing up shop or cutting their reporting resources drastically. Courtrooms, with the exception of celebrity-style show trials, have become all but ignored by the media. The dearth of coverage by the media has led to ignorance of how the law truly works. Ignorance has consequences. When people don’t know how the law works, the voices of the pundits and politicians who seek to limit general access to the courthouse sound more reasonable. By holding up a few cases as examples of a litigation system run amok, they cry out for tort reform, increased application of arbitration, and new discovery rules that disproportionately favor large companies. An uninformed electorate stands willing to accede. (Want an example? Go out and ask your non-lawyer friends about the McDonald’s “hot coffee” case, and see how many of them even have the facts straight!) The cure to this courthouse apathy is daylight. The best way to provide daylight is to allow social media in every courtroom. Now. Recently, Master-of-the-Blawgosphere Kevin O’Keefe wrote a fantastic article about a recent case in Providence, Rhode Island. Kate Mulvane of the Providence Journal asked Federal... read more
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