Friday follow up: DC Bar counsel’s weird priorities

So (finally) I’ve made myself read a bit more into the DC situation — that for many people is now ancient history but was news to me — about what seems like something that definitely got some play in the news but ought to be a more nationally discussed scandal.  The weird penchant that DC Bar Counsel has displayed in recent years of going after not just lawyer whistleblowers but lawyers who provide advice and counsel to such lawyers.

When I started down this path originally, it was in connection with noting the discipline that was imposed against Adrianna Koeck over her sharing of certain documents she took with her upon leaving her position as in-house counsel for GE and sharing them with the media.  I’ve now had the chance to track down and read the admonition issued against Koeck’s former professor – Robert Blakey — and the recommended findings/charges against Koeck’s lawyer – Lynne Bernabei.  Having done so, I’m still left shaking my head and thinking the priorities demonstrated are bananas.

The Report and Recommendation of the Ad Hoc Hearing Committee contains information that can be referenced to succinctly distill the underlying scenario:

In her position with GE, Koeck served “as the interface between legal issues happening in Latin America, Brazil, Argentina, Chile…and the broader businesses spread across the globe….

[snip]

When Koeck joined [GE] in 2006, Koeck’s supervisor … brief her about [an investigation involving questions regarding value added tax issues in Brazil] and gave her the file concerning the matter.  Resolving these discrepancies [the VAT issues] became one of the “big issues” on Koeck’s plate….

In mid-November 2006, after eleven months of her working for GE… Human Resources advised Koeck that [her supervisor] did not want her to either stay with the company or move to another GE business.

Koeck was to be discharged at a November 29, 2006 meeting scheduled with a GE Human Resource employee, but immediately before that meeting, Koeck emailed the GE corporate Ombudsman… claiming, among other things, that she was being retaliated against “for participating in and reporting illegal activity engaged in by [GE] personnel.”  She alleged that, in the course of her compliance investigations, she had discovered tax fraud that GE had been perpetrating in Brazil.  She claimed that she was being terminated for raising concerns about the fraud to her supervisors.

[snip]

In late August 2007, Koeck sought the legal advice of her former Notre Dame Law School professor, G. Robert Blakey.  Koeck provided Blakey with some of the confidential documents that she had copied from her GE computer.  Blakey advised Koeck, “that the documents and information she had were not covered by the attorney-client relationship, because they fell within the crime/fraud exception.”

[snip]

Blakey confined his advice to Koeck to disclosures she would make to protect herself against potential criminal liability, and he recommended that she retain an additional attorney with expertise in employment law and whistleblower complaints.  Blakely gave Koeck the names of two firms, one of which was Bernabei & Wachtel, PLLC.

[snip]

On November 27, 2007, Koeck formally retained Bernabei’s firm to handle the SOX matter before the Department of Labor.

[snip]

After Koeck retained Bernabei on November 27, 2007, she and Blakey met and agreed that Koeck should inform the press about GE’s activities in Brazil.  Beginning in December 2007, Bernabei spoke with Koeck about having a press strategy and talking to the press.

[snip]

At some point in the fall of 2007, David Cay Johnston, a New York Times reporter at the time, received a telephone call from Blakey who asked if Johnson “might be interested in material about a long-running series of felonies committed by General Electric in another country.”  Thereafter, Johnson received “hundreds of pages of documents” from Blakey or Koeck.  Subsequently in January 2008, Johnston interviewed Koeck about the alleged tax fraud in Brazil and she provided additional documents in her possession regarding GE’s activities there.

Now as to Koeck and Bernabei, an interesting wrinkle learned from reading the source documents is that because the SOX proceedings were before the Department of Labor, the disciplinary body looked to the ABA Model Rules to apply to some extent, but entirely ignored any evaluation of Model Rule 3.6 on trial publicity that would appear, arguably, to permit disclosure of aspects of the proceedings to the media.  In my earlier post, I had noted that DC does not have a trial publicity rule that extends as far as the Model Rule, but this wrinkle, to me, further undermines the outcome in these matters.

But it is the details of Professor Blakey’s situation though that are laid out in his admonition letter – that bar counsel was aware of and took into account and yet still thought discipline was warranted that most astound me and leave me sticking to my guns about this all being bananas:

Ms. Koeck told you that she was concerned that GE had not and was not taking any action to stop the alleged ongoing fraud and that she was afraid that she might be personally liable for the activity because Brazilian law holds individuals, and not corporations, liable for tax fraud and criminal activity.  Ms. Koeck also said that she knew of money-laundering activities and described instances in which GE employees in South America had been murdered.  Based on your conversations with her, you were under the mistaken impression that Ms. Koeck was residing in Brazil.  You believed that she faced possible criminal liability if she did not report the alleged illegal and fraudulent activity.  You also believed that her physical safety was in danger.

[snip]

In advising Ms. Koeck to provide information and copies of GE’s documents to Mr. Johnston, you had in mind the evidentiary crime-fraud exception to the attorney-client privilege, but you did not give adequate consideration to the terms of Rule 1.6 of the Rules of Professional Conduct.

Now setting aside the fact that D.C.’s Rule 1.6(d) does provide a lawyer with an exception to permit disclosure that would at least have been arguably available to cover Koeck’s circumstances, they are managing to discipline a very distinguished lawyer on a basis of saying he assisted another lawyer in violating her ethical obligations rather than attempt to prove that the lawyer’s allegedly “bad advice” rose to a level of incompetence to justify discipline under Rule 1.1.

As a lawyer who represents lawyers, I find that to be a really quite scary turn of events.

My view on the whole situation isn’t exactly made any better after tooling around a bit on the Web regarding the disciplinary counsel involved in pursuing this matter, Hamilton P. Fox, III.  Mr. Fox appears to be the same gentleman who was on the wrong side of the exercise of abusive and over-the-top enforcement powers recently as well.  You can read about the saga involved in his arrest and his wife’s detention stemming from Mr. Fox being parked in a place he shouldn’t have been parked in. and the D.C. police appearing to significantly overreact to the situation presented here.  Assuming he is the same person, and I admit it is possible that there are two separate Hamilton P. Fox, III in D.C., but assuming he’s the same person and I think I’m on solid ground about that as other people have laid out before, you’d think the experience he went through would make him more sympathetic to wielding power irresponsibly and trying to only target those who deserve punishment, but apparently not.

As a lawyer who represents lawyers, I’ll try for now just to look on the bright side of things that I don’t practice in the District of Columbia instead of dwelling on just how chilling the actions of D.C. Bar Counsel might be on lawyers who do.

Whistling about where you work.

We appear to be living now in an era in which whistle blowers are going to be in the news (and perhaps be the news) more than ever.

Many who know me, know that I hold a pretty controversial opinion — Arrested Development is potentially the greatest television show in history.  For many years when I needed a fictional lawyer for my hypos at seminars, Barry Zuckerkorn, Bob Loblaw, and Wayne Jarvis were my go-to choices.  I could drop this blog and write a blog just about the genius of that show but (perhaps) even fewer people would read that, much like it never got its fair share of viewers.  One example of the simple brilliance of its writing though was its treatment of the issue of whistle blowers from the 20th episode of the first season, “Whistler’s Mother”:

Mr. Jordan: Listen, you’ve got the money now and you know my price. You don’t need a whistle blower around here.

Michael: Interesting choice of words, Mr. Jordan. He’s right, we don’t need a whistle blower. We need a building full of whistle blowers. Okay? Whistles. I want this place to be honest. That’s exactly why I had these made up for us. When you see something wrong…

[Whistle blows]

Michael: There you go. I want you to report it. I want you to…

[Whistle blows]

Michael: Exactly. Just like that. I want us to police ourselves vigilantly… Let’s wait till something’s actually happens, though.

[Whistles blowing]

Michael: All right… Good fun… Enough!

[twenty minutes later…]

Michael: 45, 46, 47…

Michael: Okay, there’s still three whistles left out there. Who’s got the whistles?

[Whistle blows]

Board Member #1: He kept one.

Michael: There’s a good example of whistle blowing, okay, but you’ve kept yours, so it’s hurting your case.

Board Member #1: I was in the bathroom when you asked for it back.

[Whistle blows]

Board Member #2: No, he wasn’t.

When lawyers (or those that work closely with lawyers) claim to be whistle blowers, the stakes tend to be even higher and the ethical issues for those lawyers and even for the lawyers that represent those lawyers are almost always complicated.  Even when answers seem straightforward, the tensions that exist between the public interest in preventing wrongdoing and the private interest in protecting confidentiality can lead to second-guessing as to where the right lines should be drawn.  When the traditional right of a client to fire their attorney for any reason or even no reason at all is wound into the mix, sometimes that readily clarifies how the tension is resolved  but not always.  It is a pretty good explanation for why there aren’t really many instances of outside counsel to companies or government entities serving as whistle blowers.  When the lawyer seeking to blow the whistle though is an in-house counsel, that absolute right to fire your attorney can be made to yield to public policy since the client is also the lawyer’s employer.

In the last couple of weeks, there have been three stories of interest making the rounds involving three high-profile cases – two of them in California and one in D.C. — where the classic tensions are playing out in differing ways.  The D.C. case is the longest running of the three and was actually pretty much believed to be over back in 2008 when the a former in-house counsel for GE’s Sarbanes-Oxley suit — which she supported using her former client’s confidential information — was dismissed as untimely filed.  The matter got renewed attention with a recent development of a disciplinary suspension recommendation against her.  One of the California matters is part of a roiling and unseemly dispute between the State Bar of California and the Chief Disciplinary Counsel that it fired within the last year.  The other California matter is currently in the middle of trial proceedings and involves the former General Counsel of Bio-Rad, Sanford Wadler, who filed suit back in 2015 alleging he was fired because he blew the whistle on his former employer’s violations of the Foreign Corrupt Practices Act.

The weird mess involving the California State Bar has been back in the news twice in succession.  First, there was a story that the former assistant to the former Executive Director, Joe Dunn, would not be permitted to use information she took with her on her laptop to pursue her claim that she too was fired in retaliation because of her knowledge of the same kinds of violations for which her boss has said he was terminated.  Then, even more recently, word came down that Dunn’s suit, which had previously been forced into arbitration, has been dismissed by the arbitrator.  The  former Bio-Rad General Counsel recently received a favorable ruling about his ability to use confidential client information to seek to prove his case despite what would otherwise be his ethical obligations of confidentiality.

At a primary level, the developments in the three cases underscore a few points.  One, none of them involve outside counsel.  Two, lawyers who claim to be terminated for whistleblowing are almost always going to be met with counter-allegations that that they just simply were bad at their job and were terminated for poor performance.  Three, the obligations lawyers owe to clients in terms of confidentiality not only complicate matters and raise the stakes but almost always create satellite disputes within the litigation about use of information that will make or break the case.

Rather than try to re-tread all of the details of the three matters (because you might care about all, none, or just some of them), I’m pretty sure through the links I have provided and a little Googling, you can immerse yourself as much as you want in available information about any of the three.

One piece of one of the matters though really piqued my interest and deserves a brief separate discussion — the detail of why the former GE attorney, Adriana Koeck, appears headed for a 30-day suspension and a lawyer representing her is also getting punished — going beyond the use of the confidential client information to support allegations in the complaint but providing some of that same information to the press.   One of the reasons the matter piqued my interest originally was that, here in TN, we have a version of RPC 3.6 on trial publicity that allows communications about the media regarding the contents of a complaint, for example.  D.C. has a much different version of that rule.

But, further digging is what further made me curious because D.C. really is a weird place, I guess.  Admittedly, at this point I have only read the Law360 article, but it seems bananas that a D.C. lawyer who assisted, Koeck, in providing documents referenced in her complaint to news reporters is being disciplined for doing so.  Koeck’s 30-day suspension seems to be explainable by the fact that she didn’t participate in the proceedings having already agreed to be suspended from practice by consent.  But punishing a lawyer for that lawyer seems Draconian.  Yet, and somehow I missed reading about this back in 2015, but even the prominent law professor who gave Koeck advice that the crime-fraud exception would apply to the documents also received disciplinary punishment for doing so — that seems even more Draconian.

In fairness, I’ll have to dig a bit further to educate myself on those proceedings to see if I can better explain all of that.

In the meantime, it does appear like Season 5 of Arrested Development is going to happen.  So yay for that.

 

The “Now You Know” ad – quite savvy or absolutely horrible?

I had been hoping I could wait a bit to write about this topic but it’s making news via the ABA Journal online today, so I’ll just plow in with this rush job of a post because I’ve already heard discussions in Tennessee about this same ad and before someone more articulate than me blogs about it before I do.

Here’s a link to the article about the Georgia dust up:.

Here, if I’ve done this correctly should be able to watch the advertisement itself at this link — “Now You Know”

For those who can’t get the video to play or who didn’t read the Georgia story above, the gist is that the advertisement explains that the fact that someone has insurance to cover liability in say an auto accident case is something that gets withheld from the jury.  (For what it is worth to those outside Tennessee, in our state insurance coverage is not even discoverable in state court although it is, of course, in federal court.)

Now, based on someone asking me about it, I thought it was already running in Tennessee, but it may only be up in Georgia at the moment.

I’m not at all prepared to weigh in on whether it presents a problem under Georgia’s advertising rules, but I feel pretty comfortable saying that it would be difficult in Tennessee to make the case that the advertisement violates any of our ethics rules.  On the first front, it is hard to point directly at any aspect of the content that would be untruthful so challenges under RPC 7.1 or similar provisions would go nowhere.  Someone might argue that the ad puts a lawyer in the position of doing something “prejudicial to the administration of justice,” in violation of RPC 8.4(d) but the natural retort to that would be, well… is it … really?  And, I suspect that the firm running the advertisement would very much like to spend time debating whether the dissemination of the information is really prejudicial to the administration of justice or not.

If there is a provision that could be fruitfully pursued, I tend to think it would be RPC 3.6(a) which prohibits lawyers from making “an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.”  That rule is usually thought of as being designed to protect against publicity that would impact a particular matter, but a statement like this that would apply to all matters to some extent might just be capable of being argued to have sufficient deleterious impact to any one matter to trigger the rule.

I tend to believe that the best response to speech though is more speech, so what I’d really like to see is a defense-oriented firm cut an ad to educate the public about something like the collateral source rule.  Someone could even try to argue that RPC 3.6(c) which permits some responsive statements in order to “protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client.”

It’d be interesting to see that play out and whether  the firm strenuously defending this current advertisement would see any problems with a defense-oriented counterpoint.

 

 

 

Dishonesty in settlement negotiations

This is a topic I’ve spoken about on a number of times over the years as it can make for a pretty decent CLE presentation.  Any such presentation almost always involves use of a hypothetical to explore issues that seem (or at least can sound) academic to a large extent.  The usual jumping off point is the language set out in Comment [2] of Model Rule 4.1 that speaks of “generally accepted conventions in negotiation,” and that indicates that “a party’s intentions as to an acceptable settlement of a claim” is a type of statement “ordinarily not taken as statements of material fact.”  From time-to-time there are real world situations that can be used to demonstrate that lawyers can end up paying a real price for making a known, false statement in connection with settlement negotiations, as opposed to things that are just chalked up as being “puffery.”

In my reading stack for a couple of months now has been a situation though that falls into the category of dishonesty in settlement negotiations, but looks like nothing I’ve quite seen before.

In late February 2016, the ABA Journal online had an article about a Seattle judge imposing $32,000 in sanctions against two lawyers who were representing Pierce County, Washington in the defense of a false arrest lawsuit.  The sanctions were imposed for the lawyers’ role in “misleading settlement negotiations,” and not telling opposing counsel that there client had rejected a proposed settlement dollar amount.  Which, at least sounds bad on its face, of course, but at that same time — given the fluidity of settlement negotiations — doesn’t necessarily sound all that far away from what the rules speak of as a generally-accepted convention of negotiations.

Both the ABA piece, and this more expansive article from The News Tribune , elaborate a bit on the details, but that elaboration only makes it seem a bit more remarkable to me that these lawyers were sanctioned.  And, since it is a Friday and to cut to the chase it is for this reason, yes it does look like the client contact for these lawyers did tell the lawyers that he would not agree to a $250,000 settlement payment, and that the lawyers continued the effort to negotiate other important aspects of the proposed deal for about a week without telling opposing counsel that the client was saying it wouldn’t agree to the monetary component, but an important aspect of the context is left out of the ABA Journal story for example:  The client who had said it wouldn’t do $250,000 had actually previously offered to settle the case for $210,000.  In a vacuum, it does not seem beyond the pale that lawyers, knowing that the gap to surmount was just $40,000, would continue to work on getting some non-monetary concessions in hopes that they might have a client that would change its mind when it saw additional bells and whistles.

So, why the sanctions really?  I can only guess, but my guess is that the rest of the context matters probably even more and you will get a feel for that context if you read the two stories already linked and this earlier July 2015 story in The News Tribune.

The false arrest suit involves a woman who has been arrested for child molestation, and the charges against her dismissed, twice; one of the dismissals was specifically premised on a finding of prosecutorial vindictiveness.  There is also a separate federal lawsuit filed by the same plaintiff over things done since the first lawsuit was filed, and the elected prosecutor for Pierce County who hired the lawyers to defend the false arrest suit because of his office’s conflict of interest is also facing ethics charges and whistleblower complaints over various aspects of the efforts to prosecute this plaintiff and, if that weren’t enough, also a recall petition.

Oh yeah, and like a week after the sanctions ruling, the same prosecutor appeared on Nancy Grace in the middle of a murder trial to talk about the murder trial his office was prosecuting, prompting a motion for a mistrial in that case.

With the popularity of the “Making a Murderer” documentary, I’m not sure what this one would be called — perhaps just “Making a Mess,” but it sounds like it would make a good sequel.

Legal Ethics Issues in “Making a Murderer” – Part 1 of ?

So, the latest rage in Netflix binge-watching is the documentary “Making a Murderer.”  If you haven’t been engaged in a digital detox program over the last month or so, then you are likely aware of its existence.   My wife and I just finished it up last evening.  If you haven’t watched it, you really should as it is quite compelling.  It will only take you roughly 10 hours if you do it in one sitting, I’ll wait here until you get back.

Ok.  Great.  Pretty compelling stuff, huh?

Now, I have my own views about the cases, the documentary, how it makes me feel about the system, etc.  (In addition to watching the series, I’ve also spent some time on the internet reading about the underlying case and things that were left out, etc.)  But I’m not going to get into a bunch of that on this blog because, strictly speaking, even the “law of lawyering,” doesn’t encompass many of the topics worth discussing.  On the broader issue, I will say just this (I guess):  I have no doubt that there was more to the prosecution case presented to the jury than was presented during the documentary.  This would have to be true given the length of the trial versus the length of the documentary.  (I will say that, even before scouring the web to read articles to reward myself for staying unspoiled during the run of watching the show, I found it fascinating on reflection that almost none of what we saw, and what was explored, in the documentary had anything to do with what, if any, motive the prosecution offered for why the accused would have murdered the victim.  Concurrently, though, there also was no exploration of what, if anything, the defense lawyers said and did to exploit the notion that there seemed to be no motive for the commission of the crime).  If you have already watched the documentary series, and want to learn just a bit more through articles that will certainly spoil you as to the current state of affairs for the subjects of the series if you haven’t watched, you could do worse than to read these three pieces: here, here, and here.

The popularity of this documentary and the issues it touches on does provide excellent fodder for occasional discussions of certain legal ethics issues.  I really wasn’t sure I was going to do tackle any of them here, but then I finally remembered (somewhere between watching Episodes 6 and 7 and last night’s watching of the final three episodes) from where I knew the name of the lead prosecutor.  I covered his 4-month suspension from the practice of law in my 2014 Ethics Roadshow.  I won’t pile on about the details of that because, at least at a surface level it has nothing to do with the case(s) explored in the documentary, but I will give you this link that points to that story itself if you want to go familiarize yourself.

What I do want to explore – and see if I can do so in way that doesn’t truly spoil anything for someone who hasn’t watched the series yet — is an instance of conduct, involving the prosecutor, that seemed to me at the time I was watching to clearly have run afoul of the lawyer ethics rules.

There is a memorable press conference, shown in Episode 3, held by the prosecutor.  You can read a transcript someone has made of the entire third episode online just by ginning up a decent Google search and that will get you the transcript of the remarks at the press conference.

Wisconsin, like most states, has (and had at the time of the press conference) an ethics rule governing a lawyer’s ability to make certain public statements about a pending matter in litigation.  Under the ABA Model Rules now (and back then), that rule is RPC 3.6, conveniently titled “Trial Publicity.”  RPC 3.6(a), applicable to lawyers in civil and criminal cases alike, is broadly designed to prevent lawyers from “mak[ing] an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.”  At first blush, the kind of statements made in the press conference would certainly appear to be statements that are extremely likely to materially prejudice not one but two trials.  RPC 3.6(b)(2), however, goes on to make clear that, despite the general prohibition, a lawyer is still permitted to make an extrajudicial statement about “information contained in a public record.”  Which would mean that as long a lawyer puts enough detail into a court filing, repeating those details in a press conference would not violate RPC 3.6.

But, lawyers who are prosecutors also have special duties under another ethics rule, RPC 3.8.  And, under the ABA Model Rules, there exists a provision, RPC 3.8(f), that reads as follows:

except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial statements comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees, or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.

Now, if a rule like this had applied to the Wisconsin prosecutor, the press conference shown in Episode 3 would have violated this rule about six ways from Sunday.

Wisconsin, however, did not then (and does not now) have this rule in place.  Wisconsin has specifically declined to follow the ABA on this topic.  Thus, my initial instinct was wrong.  Whatever else I may think about the decision to hold the press conference and to have made the statements made (and the New York Times article I linked above indicates that the prosecutor himself has said he regrets holding that press conference), as long as the same contents were in the publicly-filed criminal complaint, then it would not have been an actionable violation of RPC 3.6 or 3.8 in Wisconsin.

Approximately 30 other states, including Tennessee, do have a provision identical to, or strongly similar to, RPC 3.8(f) and, thus, such a press conference by a prosecutor in those states would be a potentially disciplinable offense.

At some point, I will write a post about the troubling ethics issues raised by the acts and omissions of one of the lawyers for the minor defendant whose arrest was part of the subject matter of the press conference, but not today.

 

 

Coming to praise rather than to bury – West Virginia edition

Some, including possibly me, will argue that the greatest thing to come out of West Virginia is the My Brother, My Brother, and Me podcast.  But today, I write about another very positive contribution out of West Virginia, a very good, very thorough ethics opinion that overflows with common-sense with respect to social media issues for lawyers.  West Virginia L.E.O. No 2015-02 provides advice to attorneys that is as good as the McElroy brothers’ “advice” on MBMBAM is funny.

Now, this ethics opinion was actually issued a full month ago but news of it only came to me when it was picked up in other places, like the ABA/BNA Lawyers’ Manual on Professional Conduct.  If all you ever read of No. 2015-02 is the 12 numbered answers the West Virginia committee provides to the questions it poses, you’d know almost all you needed to about how practical, smart, and on-point its opinion is:

  1. Attorneys may advise clients about the content of the clients’ social networking websites, including removing or adding information;
  2. Attorneys may connect with a client or former client on a social networking website;
  3. Attorneys may not contact a represented person through a social networking website;
  4. Although attorneys may contact an unrepresented person through a social networking website, they may not use a pretextual basis for viewing information on a social networking site that would otherwise be private/unavailable to the public;
  5. Attorneys may use information on a social networking website in client-related matters;
  6. Attorneys may accept client reviews but must monitor those reviews for accuracy;
  7. Attorneys may generally comment on or respond to reviews or endorsements;
  8. Attorneys may generally endorse other attorneys on a social networking website;
  9. Attorneys may review a juror’s Internet presence;
  10. Attorneys may connect with judges on a social networking website provided the purpose is not to influence the judge in performing his or her official duties;
  11. Attorneys may advertise on a social networking website provided such advertisement complies with the requirements of the Rules of Professional Conduct; and
  12. A prospective attorney-client relationship may be formed on a social networking website.

In a way, those could be the 12 Commandments of Social Media for Lawyers.  [I’m claiming that title – that’s mine; ©; don’t anyone try to do a seminar with that title before I do; I’ve printed this blogpost out and mailed it to myself in a sealed envelope.]

The rest of the opinion (which spans 24 pages) addressing the details and nuances of these 12 answers is infused with the same kind of practical guidance and wisdom the numbered answers would lead you to expect.  It strikes all the correct notes in terms of understanding issues like: the line between advising clients on how to change privacy settings and engaging in what could be spoliation; the fact that public portions of a person’s online presence (whether they are a represented party, an unrepresented party, or a juror) are fair game; and the fact that judges and lawyers can be friends and interact socially in real life and in just the same way could be friends and interact on social media.

Even better, it highlights a few other nuances not often discussed which is the need for lawyers to remember the potential implications for trial publicity, and compliance with RPC 3.6, when they post content to social media platforms, and that there are some ways that interactions through social media platforms (like, for example, comments on Facebook posts and replies to comments) could amount to real-time electronic communication treated more like a phone call than an email under RPC 7.3.

I think the West Virginia committee managed its task so well, in large part, for two reasons.  First, the opinion makes clear that it starts from the premise that social media and social media websites are just another means of communication.  Second, it was written as a byproduct of a mindset that recognized that the very first of the general ground rules the opinion should address is the role that a lawyer’s ethical duty of competence under RPC 1.1 plays with respect to the social media landscape:

[I]n order to comply with [RPC 1.1], attorneys should both have an understanding of how social media and social networking websites function, as well as be equipt [sic] to advise their clients about various issues they may encounter as a result of their use of social media and social networking websites.

Frankly, this weird regional/archaic spelling of “equipped” is one of my only quibbles with the opinion at all.  The other quibble – and really the only one of substance – is that I think the opinion goes too far in terms of imposing a duty on a lawyer to “verify the accuracy of any information posted on [the lawyer’s] social networking websites,” especially given the difficulty in reconciling that with what the opinion says immediately before that (“Although attorneys are not responsible for the content others post on the attorneys’ social networking websites….”)  If the opinion had just left the obligations to “(1) should monitor their social networking websites [and] (3) must remove or correct any inaccurate endorsements,” then it would have equipt me with almost nothing to quibble with at all.

Go read it.  Then print it out and keep it handy.  It’s good.