Judges on Facebook: Exercising First Amendment Rights or Violating the Judicial Canons?

There is no doubt that since the inception of Facebook in 2004, various other social media networks have sprung up allowing people to share and exchange information instantly. As of the second quarter of 2015, Facebook had nearly 1.49 billion monthly active users.[1] Originally a social networking website geared towards college students, Facebook has grown to market its services to people of all ages, backgrounds, and professional occupations. As social media continues to become a part of people’s everyday lives, many have predicted that this is a long-term trend that will be continuously refined so that people turn to interacting and behaving online as they do in their everyday lives. But with this dependency on online social networking comes potential consequences that can affect many groups of people, including the legal profession.

The American Bar Association reported in its most recent Legal Technology Survey that about 62% of law firms maintain social networks. This can include, for example, LinkedIn, Facebook, Twitter and Instagram. In fact, 78% of individual lawyers maintain one or more social networks, and spend on average 1.7 hours per week using these sites for professional purposes.[2]

But what about in the courtroom? Is it ethical for a judge to use social media to comment and express his or her opinion on a case unfolding in the judge’s courtroom? Unfortunately for one District Court judge in Texas, Facebook updates about a trial over which she was presiding resulted in a reprimand by the State Commission on Judicial Conduct.

This story began during the criminal jury trial of State v. David M. Wieseckel, which was held in Judge Michelle Slaughter’s court. The defendant, Wieseckel, was charged with unlawful restraint of a child for allegedly keeping a 9-year-old boy in a wooden enclosure.

Judge Slaughter’s social media saga began a few days before the commencement of the trial when she posted on her Facebook page: “We have a big criminal trial starting Monday! Jury selection Monday and opening statements Tues. morning”. However, it wasn’t until after the first day of testimony when Judge Slaughter posted several comments on her Facebook page that ethical issues allegedly emerged.

The following are the Facebook comments that led defense counsel to file a motion to recuse Judge Slaughter from the case:

“Opening statements this morning at 9:20 am in the trial called by the press ‘the boy in the box’ case.”

“After we finished Day 1 of the case called the “Boy in the Box” case, trustees from the jail came in and assembled the actual 6”x 8’ box inside the courtroom!”

“This is the case currently in the 405th!” [This post included a link to a Reuters article entitled “Texas father on trial for putting son in a box as punishment”].

The issue raised about these comments was that the box to which she referred had not yet been admitted into evidence at the trial.

As a result of these comments, defense counsel filed motions to recuse Judge Slaughter from the case and for a mistrial and she was removed from the Wieseckel case. The case was transferred to another court and the judge in that court granted the defendant’s motion for mistrial. Judge Slaughter’s behavior was criticized on social media despite her argument that she made her comments with the intention of promoting transparency and to encourage individuals to come watch the proceedings.

The State Commission on Judicial Conduct (Commission) did not share the Judge’s perspective. After considering the relevant standards of judicial conduct, including Canon 3B(10) of the Texas Code of Judicial Conduct and Canon 4A, the Commission concluded that Judge Slaughter’s comments “went beyond providing an explanation of the procedures of the court” and instead “highlighted evidence that had yet to be introduced at trial”. Further, the Commission stated that “Judge Slaughter cast reasonable doubt upon her own impartiality and violated her own admonition to jurors by turning to social media to publicly discuss cases pending in her court, giving rise to a legitimate concern that she would not be fair or impartial in the case”.

On April 20, 2015, the Commission issued a Public Admonition and Order of Additional Education to Judge Slaughter requiring her to obtain four hours of instruction, with a mentor and in addition to her required judicial education, on the proper and ethical use of social media by judges.

Judge Slaughter appealed the sanction to a special court of review based upon First Amendment claims. On July 20, 2015, Justice Charles Kreger of the 9th Court of Appeals, Justice Gina Benavides of the 13th Court of Appeals, and Justice John Bailey of the 11th Court of Appeals heard arguments and evidence in the trial de novo. The crux of Judge Slaughter’s argument is that this particular proceeding is going to chill the exercise of the right to free speech as the matters that occur within the courtroom are of public concern. The Court of Appeals has not yet issued its decision.-This case is a prime example of the tension between the First Amendment and the judicial canons that may arise when the judiciary engage in social media however well-intentioned.

[1] http://www.statista.com/statistics/264810/number-of-monthly-active-facebook-users-worldwide/

[2] American Bar Association, 2014 Legal Technology Survey Report, available at http://www.americanbar.org/groups/departments_offices/legal_technology_resources/publications.html

E-Competence? California Advises Attorneys on Requisite Competence in the Handling of E-Discovery

On June 30, 2015, the State Bar of California Standing Committee on Professional Responsibility and Conduct released Formal Opinion No. 2015-193 addressing an attorney’s ethical duties in the handling of the discovery of electronically stored information (“ESI”). ESI is information created, communicated, and stored on either computer hardware or software (i.e., emails, Word documents, videos, etc.). Given ESI’s pervasive presence in litigated matters, it is critical that attorneys understand electronic discovery so as to avoid potential ethical violations and exposure to unnecessary disputes.

The committee’s opinion focused its analysis around a detailed hypothetical that demonstrated the unfortunate, but relatable, missteps taken by an attorney that was familiar with discovery, but unfamiliar with electronic discovery. Consequently, and among other things, the attorney’s actions exposed him to various ethical violations. The committee specifically addressed Rules 3-110 and 3-100, the duties of competence and confidentiality, respectively. (Note: California has not adopted the ABA Model Rules of Professional Conduct; however, 3-110 and 3-100 generally echo the duties described in ABA Rules 1.1 and 1.6, versions of which of been adopted in all of the other states.)

With respect to the duty of competence, the committee broadly interpreted the existing language of the rule to include knowledge of electronic discovery. Depending on the case, the duty of competence may require a practitioner with a high level of technical knowledge and ability. If, however, the attorney lacks the requisite skillset, he has three available options: (1) acquire sufficient learning and skill before performance is required; (2) associate with or consult technical consultants or competent counsel; or (3) decline the client representation. Moreover, the committee counseled that if an attorney chooses the second option, the attorney is always responsible for and obligated to supervise outside counsel and consultants.

Additionally, an attorney has a fundamental duty to protect confidential communications between the attorney and client. Thus, an attorney’s failure to diligently monitor the production of ESI could result in both an ethical violation and a waiver of attorney-client privilege. An attorney dealing with electronic discovery must take action to review a client’s network, instruct and supervise the client’s disclosure, develop a narrow list of acceptable search terms, and review the retrieved data before it is ultimately disclosed.

Please click here to read the full opinion.

Texting is Permissible Advertising in Florida

The Florida Bar Board of Governors decided that texting potential clients is not impermissible in person solicitation, but rather permissible written communication that constitutes advertising. Of course,  the text message must comply with Florida’s advertising regulations for direct mail and email advertisements. The decision reversed an opinion of Florida’s Standing Committee of Advertising in which it had found texting to be impermissible in person solicitation akin to directing telephoning potential clients.

 The Florida Bar Board of Governors dismissed the concern that texts are more intrusive than emails or snail mail by responding that individuals will be able to opt out of receiving texts from a firm.

Just another indication that technology has invaded the practice of law.

To read more click here.

Florida Bar Considers Tech Savvy CLE Requirement

The Florida Bar Board of Governors met on July 24th and approved new language that adds technological know how to the definition of competence and an additional CLE requirement of 3 credits of  technology courses during every three year reporting cycle. The Florida Bar News reports that the new language in the comment to Florida’s Bar Rule  4-1.1 on competence would not only include language from the ABA Model Rule comment that lawyers must have“an understanding of the benefits and risks associated with the use of technology,” but would also add:

 “Competent representation may also involve the association or retention of a non-lawyer advisor of established technological competence in the field in question. Competent representation also involves safeguarding confidential information relating to the representation, including, but not limited to, electronic transmissions and communications.”

The addition of 3 CLE technology credits to the current requirement of 30 credits every three years is controversial. The original proposal was for an additional 6 credits of technology education–one more than the 5 ethics credits that are now required.  Some lawyers oppose both the additional credits and what they believe to be a paternalistic approach to dictating the need to learn technology in CLE courses.  The younger lawyers contend that they possess the knowledge and the older lawyers claim to have competent assistance available to deal with technology issues.

The Florida Supreme Court will be the final arbiter as both the proposed new comment to Rule 4-1.1 and the new CLE requirement must be approved by the Court.

Attorneys Engaged in the “HIGH” Life in Washington State

The State of Washington and its legal community are again in the headlines for marijuana. As practicing attorneys know, Rule 8.4 of the Rules of the ABA Model Rules of Professional Conduct, and the equivalent provisions in all of the states, forbids a lawyer from engaging in criminal acts and conduct that reflects adversely on his or her fitness to practice. Such a rule essentially has created a “gray area” dilemma for attorneys practicing in states where marijuana has been legalized or decriminalized.

More than half the states in the U.S. have either legalized the recreational use of marijuana or decriminalized the drug for medicinal use. This increased “pot leniency” has impacted the legal community because entrepreneurs also known as “pot-repreneurs” are seeking legal advice and assistance in establishing and running weed related businesses.

Washington, one of five states that has legalized the recreational use of marijuana, was one of the first states in which a bar association addressed this “grey area” dilemma. In 2014 a Washington State Bar Committee on Professional Ethics issued a Report to the Board of Governors and recommendation, which resulted in the Washington Supreme Court’s amendment of its Rule 1.2 to add a comment 18 that establishes that lawyers who advise clients on marijuana-related activities permitted under state law do not violate the Washington State Court Rules of Professional Conduct. However, this amendment did not address whether an attorney may engage in using marijuana or invest in his own pot business. Well, that is no longer the case.

Washington State Bar’s Ethics Committee recently issued Washington Informal Op. 201501, which advises that an attorney may be involved in marijuana-related enterprise so long as the ancillary business is “separate and apart” from his law practice and does not affect his ability to comply with the Washington State Court Rules of Professional Conduct. Further, and arguably more surprising, the Committee concluded that attorneys may purchase and consume marijuana in accordance with Washington state laws that authorize recreational and medicinal use to the same extent that non-lawyers may do so as long as: (1) the use of marijuana does not interfere with an attorneys ability “to provide competent legal advice and otherwise comply with” his ethical obligations; and (2) the federal government does not reverse course on the Department of Justice’s recent announcements that it “does not wish to impede retail sales of medical or recreational marijuana pursuant to a state regulatory system unless the sales implicate other federal concerns such as money-laundering, sales to minors, sales outside of the state regulatory system and the like.”

Though the Washington ethics opinion may be controversial, it does shed some light on the “grey area” created by the rising tide of marijuana legalization and the resulting ethical dilemmas for attorneys seeking to lend assistance or participate in the new industry. Though the opinion does not change the illegal status of the drug at the federal level nor does it apply to lawyers who reside outside of the state of Washington, the opinion does provide a glimpse of what may be to come in legal communities throughout the country.

Florida Bar Releases Best Practices for Effective Electronic Communication

The Florida Bar has released guidelines for electronic communication that consider issues of professionalism and legal ethics that may arise when an attorney uses texting, emailing, a smart phone, and social media in his or her practice. The best practice suggestions range from considering client confidentiality to understanding technology to practical suggestions for responding to an “angry email.”  To read the Florida Bar’s Best Practices for Effective Electronic Communication click here.

Florida Professional Ethics Committee: Social Media Advice to Clients–A Matter of Competence

On June 25th, The Florida Professional Ethics Committee affirmed, with some modifications, its January proposed opinion regarding advising a client about removing social media posts prior to litigation and changing privacy settings.  Florida joins several other states in addressing the issue of social media posts that are potential evidence in reasonably forseeable litigation.

Two of the key take aways from the opinion:

“The committee is of the opinion that the general obligation of competence may require [an attorney] to advise the client regarding removal of relevant information from the client’s social  media pages, including whether removal would violate any legal duties regarding preservation of 109 evidence, regardless of the privacy settings.”

An attorney, “may advise that a client change privacy settings on the client’s  social media pages so that they are not publicly accessible. Provided that there is no violation of the rules or substantive law pertaining to the preservation and/or spoliation of evidence, the [attorney] also may advise that a client remove information relevant to the foreseeable proceeding  from social media pages as long as the social media information or data is preserved.”

To read the opinion, click here.

California: An Attorney Must Maintain Client Confidentiality Regardless of Whether Information is Publically Available

The State Bar of California’s ethics committee released Formal Opinion Interim No. 13-0005, a proposed opinion stating that lawyers may not disclose embarrassing or detrimental information learned in the course of representing a client even if the information is publically available. The opinion emphasizes that the duty of confidentiality is broader than the attorney-client privilege and continues to apply after the attorney-client relationship ends.

Click here to read the proposed opinion. To read the ABA/BNA article about the opinion, click here.