Revisiting things not to do in court – Friday edition

Being in between stops for the Roadshow until next week, but still having two more to do (Wednesday in Chattanooga and Thursday in Knoxville), this will again be a bit more of a short(ish), punchy offering.

A few months ago I wrote a post about things not to do in court that discussed two incidents.  One of the incidents was the lawyer who took a selfie with his client in court after a successful jury verdict and posted it to social media.  I explained by belief that it seemed wrong for the lawyer to have been scolded at all by the court for the incident given the age-old notion that courtrooms – unless sealed via a proper protective order – are supposed to be public, open proceedings, since they are where public business gets accomplished.  I happen to think the routine imposition of such restrictions by judges is antithetical to the First Amendment right of access to court proceedings and to the ideal that what happens in the courtroom is public property.  I certainly understand that some of the rules that are in place that seek to prohibit broadcasting are premised on the notion that traditional media reporting and video broadcasting can be disruptive or a distraction to the proceedings, but in 2015 when anyone with a smart phone can unobstrusively take photos and disseminate information to the public in real time about what is going on in their courtrooms (and could even use an app like Periscope to live-stream proceedings without actually being at all disruptive) should merit revisiting a lot of the rules in place in federal courts that chill public dissemination of information about court proceedings.

I had been avoiding writing anything about this more recent Illinois federal court incident where a partner with a prominent law firm was facing a show cause order over having taken photos of evidence, and tweeting about that evidence, during a criminal trial in which he was just acting as a spectator in the courtroom.  Because the obvious ethics and lawyering angle didn’t immediately dawn on me.

But, there is at least one ethics rule worth mentioning for discussion so, with this week’s development that the lawyer in question sort of proposed his own sanction for his conduct in the form of making a charitable donation and performing some additional CLE and the court essentially agreed with it yesterday although it quintupled the amount of the proposed donation to $5,000 — I’m reversing course and writing just a few words about this.

Under the ethics rules in many jurisdictions,  including the version of RPC 3.4(c) adopted in Tennessee and in Illinois, it is not unethical for a lawyer to “knowingly disobey an obligation under the rules of a tribunal,” if done through “an open refusal based on an assertion that no valid obligation exists.”  (And, strictly speaking, although that rule does not say it is limited to a lawyer representing a client, given its title as “Fairness to Opposing Party and Counsel,” that kind of limitation is pretty strongly implied.)   Of course, this lawyer was never going to be in a position to do that because he first quickly stated he hadn’t seen the sign and then relatively quickly apologized for and tried to mitigate the repercussions of the conduct.  The Show Cause order lays out all the various levels of court rule that were involved here, starting with Federal Rule of Criminal Procedure 53 and working all the way down to the posted sign.  So there would be quite a few rules that a lawyer wanting to make such a challenge would have to claim to be openly defying.  The only other rule it seems like could be used to come after a lawyer for this kind of conduct in their role as a citizen would be RPC 8.4(d), but it seems to me the policies that impose these kind of restrictions are more prejudicial to the administration of justice than what this lawyer did.

I do wish that one of these days there will be an appropriately high-profile vehicle that serves to spur a conversation about why our profession doesn’t do more to challenge these kind of restrictions in federal courts.  Of course, that it is easy for me to say sitting here on my laptop and not in this lawyer’s shoes.  And, it’s especially easy for me to say when I’m likely to merely comply with the same sort of rules here in the federal district courts in which I practice rather than attempting to personally make any such waves.

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.

Things not to do in court.

A couple of weeks ago, I read a little about two instances of lawyers, both involving murder cases, getting in a bit of a pinch based on what was portrayed as bad behavior in the courtroom.  One lawyer ended up being escorted from the courtroom for attempting to make a citizen’s arrest of someone.  I think we all ought to be able to agree that attempting a citizen’s arrest of anyone in a courtroom is a bad idea.  I guess the backstory might matter, but here it doesn’t help justify the unjustifiable.  The lawyer in question was part of a team of lawyers representing a California lawyer who is facing murder charges.  One of the investigators working for the prosecution was carrying a firearm in the courtroom (presumably in a holster) and a lawyer from the defense team claimed that the investigator shouldn’t be armed, said he was engaging in a citizen’s arrest, and tried to get bailiffs to assist but ended up simply getting himself escorted from the courtroom.  It’s not the exercise of good judgment, but, fortunately for the lawyer involved, I don’t think it likely gets to anything prohibited by any ethics rules.

The second incident received a bit more publicity, as does seemingly everything that has a social media component, but I don’t find myself having any problem with the lawyer’s conduct.  The Wisconsin lawyer at the center of the story, after successfully obtaining a not guilty verdict for a client in a first-degree murder case, took a “selfie” with his happy client to post to social media to publicize the victory in the courtroom.  The fact that the photo was taken inside the courtroom was the reason for the brouhaha but the photo was taken after the judge had left the bench.  (It wasn’t something that was done in the middle of the proceedings or even in the presence of the judge like you might expect to see played for laughs in a show like The Grinder, for example.).

Now, assuming the Wisconsin lawyer had his client’s permission to post the photo on social media and, in so doing, comment publicly on the outcome (and it appears the client was a willing participant and presumably knew why it was being taken and what would be done with it), I don’t have any problem with the lawyer’s conduct at all.  I have represented media entities in the past on matters involving access to court proceedings.  So, I can recall off the top of my head quite old case law that makes the point that what happens in the courtroom is the public’s business.  (I’m almost 90% certain the quote is something like “what transpires in the court room is public property.”)  (Disclaimer: I have not gone to look at Wisconsin’s lawyer advertising rules at all to see if the lawyer might have been subject to scrutiny under some overly strict approach to preventing lawyer’s from making statements about past results.)

As the story indicates, the judge that had presided over the jury trial, however, did not share my reaction.  When learning about the incident, the judge called the lawyer and demanded he return to court and explain himself.  The article indicates that the judge said his concern was that jurors might have been included in the photo (which they weren’t and anyone looking at the photo could tell that) but also the stated concern that the victim’s family might see the photo.  I’m not sure I’m capable of articulating this next point in the clearest fashion possible, but there’s an unspoken premise behind that concern of the judge’s  — presumably they would either be upset because the prosecution went after the wrong person and the person who murdered their family member still is free or they would be upset because they think the justice system failed them by acquitting a murderer — that the family would react poorly and that unspoken premise would seem to be a much bigger problem to address than upbraiding the lawyer for taking the selfie.

It’s too bad that this lawyer was called on the carpet by the court over this, but, as the end result was that the lawyer deleted the photo from his social media account, and the judge dropped the matter, if it happens again somewhere I wouldn’t be surprised if it plays out much the same way.


“Does this require a response?”

“Does this require a response?”  Print those words out and tape them to the top of your monitor or laptop screen.  They are words to live by.

Practicing law is stressful and always has been.  Lawyers have always known that they can make mistakes that destroy their client’s life or financial situation and potentially their own career in turn.  Practicing law is probably now more stressful than ever given how interconnected, information obsessed, and voyeuristic people have become, in no small part, because of the 24/7 culture and ubiquitous usage of social media.  Now, lawyers can severely damage their own careers, or the careers of others, seemingly overnight in ways that often are, at best, tangentially related to the actual practice of law.

Two separate instances I read about this week where one or more of the folks involved could have really benefited from the “Does this require a response?” approach to practicing law in 2015 have prompted today’s post.

The first involves a lawyer who has managed to avoid any sanction from a federal court in New York despite having sent a letter to opposing counsel characterizing what turned out to be a typo  “as a knowingly racist provocation.”  The two lawyers had agreed to a date for a site inspection to occur — September 10 — but when opposing counsel sent a letter to confirm the date the letter said September 14, not September 10.  Rosh Hashana, which the attorney would be observing, would fall on the September 14 date.

Now this item is almost unfair to include here because the answer to the question “does this require a response?” when receiving the letter with the wrong date, would actually be “yes.”  But the kind of response the lawyer made certainly was never called for and very difficult to fathom.  The only response truly required was a “don’t you mean September 10, like we agreed upon?”

The second instance is a veritable case study in unnecessary responses.  It involves a private exchange over LinkedIn that was then broadcast publicly by the offended party over Twitter and that has ended up leaving neither lawyer looking all that great (pun, again, not intended).  You can read the long version of the story here, but the short version is that an under-30 female lawyer sent a LinkedIn connection request to an over-55 male lawyer at a prominent law firm.  The male lawyer accepted and then sent a message complimenting the female lawyer on her “stunning” picture.  The female lawyer, offended, responded with a message to the male lawyer scolding him for his “unacceptable and misogynistic behavior” and advising him to “think twice” before sending another woman half his age such a “sexist message.”  The offended female lawyer also then put the male lawyer “on blast” by sharing the exchange on her Twitter account.  Male lawyer ultimately responded with a not-quite-apology in which he claims he was referring to the professional quality of her photograph.

So many aspects of this interaction are troubling.  First, the male lawyer knew enough not to write what he wrote because he actually typed out the acknowledgment that it would be probably politically incorrect to say what he was going to go ahead and say about her photo.  Pro tip:  If you know enough to actually type that out, just stop and don’t say the thing at all.

But, once received and no matter how much it offended the recipient, did it really require a response?  I wouldn’t think so, but surely there was nothing to be gained from even a private diatribe directed to the male lawyer much less an effort to humiliate the male lawyer before a larger audience via Twitter.  And, then, even at this point, the male lawyer should ask whether any response is really required.  Reasonable minds can differ, but, again, a simple “I’m sorry I offended you”  would work a lot better than the highly implausible effort to claim to be talking about the quality of the photograph, not her looks.  Because we all now how politically incorrect it is to comment on digital photography quality these days ….

From a pure ethics standpoint, there really isn’t a lot going on in the second example.  Although we have an ethics rule, RPC 4.4(a), that makes it unethical to “use means that have no substantial purpose other than to embarrass . . . a third person,” that rule only applies when a lawyer is representing a client.  The only rule that exists in most jurisdictions that touches on racism, sexism, and the like is RPC 8.4(d) which prohibits conduct prejudicial to the administration of justice and does not outright require a lawyer to be acting as a lawyer representing a client.  Yet, as explained by Comment [3] to the rule, knowing manifestation “by words or conduct” of certain types of bias or prejudice can trigger a violation of this rule but only if it is in the course of representing a client.  And this same comment is the one that provides a safe harbor for “legitimate advocacy.”  The ABA Model Rule specifically lists “race, sex, religion, national origin, disability, age, sexual orientation, or socio-economic status” as the problematic bases for bias or prejudice in the comment.  It is worth noting that the ABA’s Standing Committee on Ethics and Professional Responsibility has proposed that the Model Rule be revised to put a new (g) directly into the rule itself that would prohibit lawyers from “knowing harassment” or “discrimination” on such bases.