Professional
Responsibility and New
Technology
Kelly A. Campbell
Spencer Fane Britt & Browne LLP
Presentation to
Association of Corporate Counsel May 9, 2012
Overview
• Competence: Duty to know Social Media
• Evidence and Spoliation: Failure to Preserve • Attorney-Client Privilege
• Discovery of Social Media
• Using Social Media with Witnesses, Jurors, and
Judges
Competence
• ABA Model Rule 1.1: Requires lawyers to be
competent in representation of clients.
• Comment 6: Lawyers should keep abreast of
changes in the law and practice.
• Duty to Google?
• Duty to use Internet Resources?
Evidence and Spoliation: Duty to
Preserve
• “[T]he failure to issue a written litigation hold
constitutes gross negligence because that failure is likely to result in the destruction of relevant
information.”
• Pension Committee of Univ. of Montreal Pension Plan
v. Bank of America Securities, 685 F. Supp. 2d 456 (S.D.N.Y. 2010).
• Plaintiff grossly negligent in failing to issue written
litigation.
Preservation and Self-Selection
• Defendant was grossly negligent in relying on
employees to self-select and preserve responsive documents.
• Court cited the party’s self-interest in identifying
relevant documents.
• Court also cited the employee’s ability to delete
unfavorable e-mail.
• Jones v. Bremen High School District, 2010 WL
Spoliation Sanctions to Attorney
• Jury awarded $10.6 million to family of 25
year-old Jessica Lester, for wrongful death as a result of a cement-laden truck crushing her.
• Attorney told client to “clean up” his Facebook
page which had incriminating photos.
• Court sanctioned Attorney $522,000.
• Lester v. Allied Concrete Company, Case No. CL.
08-150, Circuit Court of the City of Charlottesville, Order dated May 27, 2011.
Protecting Attorney Client
Privilege
• Model Rule 1.6, Comment 16: Lawyer must act
competently to safeguard information relating to representation of a client against inadvertent or unauthorized disclosure.
• Model Rule 1.6, Comment 17: When transmitting
communications relating to representation of a client, lawyer must take reasonable precautions to prevent the information from coming into the hands of
Employment Context
•
Employee communicating with her lawyer
using Company e-mail system.
•
Duties of Employee’s Lawyer: A Lawyer
should typically instruct the employee to
avoid using workplace devices for
Employment Context
Duties of Company Lawyer:
• Model Rule 4.4(b): Lawyer who receives document
and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.
• ABA Formal Opinion 11-460: Found Model Rules
do not independently impose an ethical duty to
notify opposing counsel, not inadvertently sent. But, other sources of law may impose an obligation.
Employment Context: No Waiver
• Court held Company’s attorney violated 4.4(b) by reviewing
employee’s attorney-client e-mails recovered from her computer. No waiver of privilege.
• Stengart v. Loving Care Agency, Inc. 990 A.2d. 650 (N.J. 2010).
• Court found that Company’s lack of enforcement of computer
use policy created a “false sense of security” which lulled employees into believing policy would not be enforced. No waiver of privilege.
• Curto v. Medical World Communications, Inc., 2006 WL 1318387
Employment Context: Waiver
• Court held employee use of Company computers was akin to
consulting her attorney in a loud voice in Company
conference room with door open. It was unreasonable for her to expect privacy when she was warned that Company would monitor.
• Holmes v. Petrovich Dev. Co., LLC, 191 Cal.App.4th 1047 (Cal. App.
2011).
• Court held key employee waived privilege because the
Company’s electronic communications policy defeated any expectation of privacy.
Discovery of Social Media
• Plaintiff claimed asthma as basis for social
security income.
• Claim denied.
• On appeal, the Court notes in the course of its
own research, one Facebook page where she appears to be smoking. If accurately depicted, her credibility is justifiably suspect.
• Purvis v. Comm. Of Social Security, 2011 WL 741234
Discovery of Social Media
• Employer sued for sexual harassment by two employees.
• Employer sought discovery of photos, videos, and messages
on Facebook and MySpace pages.
• EEOC objected based on privacy and attempt to embarrass
employees.
• Court found “[i]t is reasonable to expect severe emotional or
mental injury to manifest itself in some [social network]
content” including when the distress occurred and the degress of distress.
• E.E.O.C. v. Simply Storage Management, LLC,270
Discovery of Social Media
• Employer sought postings on Facebook,
MySpace, and Media Temple directly from service providers.
• Court quashed subpoena to extent it sought
private e-mail messages through the site as
protected under the Stored Communications Act. • Crispin v. Audigier, 717 F.Supp. 2d (C.D. CA. 2010).
Discovery of Social Media
• Personal injury lawsuit in which Plaintiff claimed injury to
his left leg while operating a forklift.
• Claim included pain and suffering, scarring and
embarrassment.
• On public portions of Facebook page, Plaintiff “likes bike
stunts.” Contained photos of Plaintiff on motorcycle before and after an accident.
• Based on reasonable likelihood of additional relevant
material, Plaintiff ordered to produce passwords, user name, and login information.
Friends with Witnesses
• Model Rule 4.1(a) and 8.4(c) forbid a lawyer
from making false statements of material fact to a third person and bans dishonesty, fraud, deceit, or misrepresentation.
• N.Y.City Bar Ethics Op. 2010-2: Attorney may
use her real name and profile to send a “friend request” to obtain information from an
unrepresented person’s social media profile. Do not have to disclose reasons.
Friends with Witnesses
• Phil. Bar. Assoc. Prof. Guidance C’ee Op.
2009-02 (March 2009): To comply with Rules 4.1 and 8.4, attorney needed to use real name and
disclose the reason for the friend request.
• San Diego County Bar Assoc. Ethics Op. 2011-2:
Can attorney send friend request to two high-ranking employees, company represented, only give attorney name. Answer: No, without
Friends with Jurors
• Model Rule 3.5 prohibits lawyers from engaging
in ex parte contacts with jurors during the course of the proceeding, unless authorized by law or court.
• Courts generally agree attorneys may run a
Friends with Jurors
• NYCLA Formal Op. 743 (May 2011): Proper for
lawyer to undertake pretrial search of available social profiles provided lawyer does not “friend” the juror, subscribe to Twitter feeds or otherwise contact them.
• After proceedings begin, passive monitoring of
publicly available social media permissible, but must not act in a way the juror becomes aware of monitoring.
Friends with Judges
• Model Rule 3.5 prohibits ex parte contacts with a
Judge.
• Appearance of impropriety.
• N.Y. State Courts Judicial Ethics Op. 08-176
(Jan. 29, 2009) permits social connections with attorneys who appear before them, but cautions whether online connections rise to level of close social relationship, requiring disclosure and
Friends with Judges
• Fl. Supreme Court Judicial Ethics Advisory Comm.,
Op. 2009-20 (Nov. 17, 2009): Judges may not be “friends” with attorneys who appear before them.
• S.C. Advisory Comm. on Standards of Judicial
Conduct, Op. No. 17-2009 (Oct. 2009): Judges may be “friends” with law enforcement officers provided no discussion related to judge’s position. Complete separation of judge from community is not good.
Groupon for Legal Services
• Model Rule 1.1, 1.7, 1.9, and 1.15: Duty of
Competence, Avoidance of Conflicts, and Proper Maintenance of Client Funds
• Model Rule 7.1: Groupon must comply with
Attorney Advertising and Must not be Deceptive
• Model Rule 5.4: Splitting of Fees with
Non-Lawyer
Professional
Responsibility and New
Technology
Kelly A. Campbell
Spencer Fane Britt & Browne LLP
Presentation to
Association of Corporate Counsel May 9, 2012
