Facebook “Friends” Aren’t Necessarily Real Friends

Florida’s Third District Court of Appeal has decided that a Facebook friendship doesn’t necessarily signify a close relationship warranting automatic disqualification of a judge. The decision allows Miami-Dade Judge Beatrice Butchko to remain on a case in which she is a Facebook “friend” with a lawyer representing a potential witness and potential party in the pending litigation.

In the decision, the court notes its disagreement with another Florida appeals court. In a 2012 decision, the Fifth District Court of Appeal held that a judge had to disqualify himself because he was Facebook friends with the prosecutor.

In its decision, the Third District Court of Appeal emphasized that “some of a member’s Facebook ‘friends’ are undoubtedly friends in the classic sense” and that a relationship between a judge and a lawyer may, under certain circumstances, warrant disqualification. But, the court noted, “[a]n assumption that all Facebook ‘friends’ rise to the level of a close relationship that warrants disqualification simply does not reflect the current nature of this type of electronic social networking.”

Read the full opinion here.

LA County Bar: Ethical Violations Abound When Blogging Attorney Spills the Beans

In an advisory opinion considering the ethical risks to incautious “catfished” attorneys, the Los Angeles County Bar Association Professional Responsibility and Ethics Committee also weighed in on the potential for ethical violations when an attorney discloses thinly veiled client information on blogs and online discussion boards. The committee concluded that where an attorney reveals enough information that a person familiar with aspects of the case could identify the significance of the details disclosed, they run the risk of violating the duties of competence and confidentiality, and might cause the loss of work product protections.

In the advisory opinion, the committee analyzed a hypothetical scenario in which an attorney posts on a blog associated with his law firm website and on a legal industry on-line discussion board. The contents of these posts reveal that in a matter the attorney is handling, a particular lay witness is “an older gentleman” whose “memory is weak.” In a subsequent post, the attorney reveals that he has retained an expert whose opinion is “very supportive” of the client’s position. The attorney further noted that as a result of the expert witness he now estimates damages in the matter will be “greater than” what he originally calculated.  ­

The attorney believed that the information revealed was innocuous mainly because the attorney did not identify the client or expert witness by name. Nevertheless, the committee explained that the attorney had revealed enough information “so that a person familiar with the aspects of the Client’s litigation would be able to identify the witness and the significance of [the] Attorney’s disclosures.” The attorney’s disclosures could result in client injury and professional discipline under the California Business and Professions Code § 6068(e)(1) and California Rules of Professional Conduct 3-100 and 3-110.

Find the full opinion here.

LA County Bar: Attorneys Hooked by Online “Catfish” Risk Ethical Violations

The Los Angeles County Bar Association Professional Responsibility and Ethics Committee recently issued an advisory opinion considering the repercussions for an attorney who communicates sensitive information to an online “catfish” –otherwise known as an individual who assumes a false identity in order to elicit sensitive information or otherwise defraud an unsuspecting person. The committee concluded that although an attorney may believe that his online disclosures are “innocuous,” the “lawyer’s unguarded disclosure of client information might result in violations of the duties of competence and confidentiality and might cause the loss of the lawyer-client privilege and work product protection.”

In the advisory opinion, the committee analyzed a scenario where an attorney communicated with a person online who claimed to be working in a “non-legal industry.” During their conversation, the attorney mentioned pending interviews with witnesses in an ongoing litigation, including information like the location of a witness and the subject of an expert’s expected testimony. The attorney was unaware that the person he was corresponding with was “actually associated with the opposing side of a pending case in which [the] attorney represents [the] client and is ‘catfishing.’”

In a detailed analysis of online “catfishing” and the “interplay of advancing technology and the lawyer’s professional responsibilities,” the committee reasoned that though the “incautious” online activity did not rise to the level of a full waiver of evidentiary privilege, the disclosures were enough to allow a person familiar with the litigation to “identify the witnesses and the significance of [the] attorney’s disclosure.” As such, the committee concluded that the scenario constituted a breach not only of the professional rules related to competence and confidentiality, but also a breach of the California Business and Professions Code 6068(e)(1), a state statute which obligates each attorney to preserve client “secrets.”

Read the full opinion here.

Breaking News: Florida’s 3rd DCA Decides Facebook Friendship No Cause for Recusal

Today, Florida’s 3rd DCA upheld a trial court judge’s refusal to recuse herself based upon a Facebook friendship with an attorney on one side of a civil case in her courtroom.  The opinion indicates that the 3rd DCA has sided with Florida’s 5th DCA analysis in the “judges on Facebook” conversation and respectfully acknowledges that the 3rd DCA is in conflict with its “sister court,”the 4th DCA.

The opinion provides three reasons for its decision, which is based on the 5th DCA’s finding that a Facebook friend does not necessarily indicate a close relationship. First,many individuals have literally thousands of Facebook friends. Second, individuals may not recall everyone who has ever become a Facebook friend. And, third, Facebook friends may be the result of Facebook’s data mining technology rather than personal interactions.

The opinion pays respect to the 4th DCA and earlier JEAC opinions by noting that social media and technology has evolved and perhaps several years ago, a Facebook friend connoted greater intimacy, but today the 3rd DCA concludes that a Facebook friendship alone is not enough to establish a well-grounded fear that a judge cannot be impartial or is under the influence of a Facebook friend.

To read the opinion click here

Is Email Encryption the New Reasonable Standard? The ABA Opines

The ever-present threat to data security  in an increasingly digitized legal profession has redefined the  “reasonable efforts” standard for lawyers who handle client information. Nicole Black over at Above the Law offers a good summary of the recently released American Bar Association (ABA)  Formal Opinion 477, which addresses a need for lawyers to increase the security  of electronic communication by using encryption in certain situations to maintain competence and client confidentiality  She also explores New York State Bar Association (NYSBA) updated  Social Media Ethics Guidelines, which acknowledge and address newer state opinions in the realm of social media.

Click on the link below to access Nicole Black’s article from Above the Law and learn more about the potential impact of ABA Formal Opinion 477 and NYSBA’s Social  Media Ethics Guidelines on the legal community.

New Guidelines: ABA On Email And NYSBA On Social Media