Category Archives: Uncategorized

Label Your Thumb Drive!

Just passing on some good advice– I recently left my flash drive in a computer at the law library.  Fortunately, I stuck a label on it with my email address and cell phone number.  A person found the flash drive and texted me to let me know they found it– whew!  So the moral of the story…don’t be an idiot like me and leave your drive behind.  But if you do, make sure you have a label stuck on it with your contact info!

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Libya & the UN Human Rights Council. Yeah, Maybe Not.

On March 1st, the General Assembly suspended Libya from the UN Human Rights Council.  This move, of course, begs the question….how the heck did they get on the Human Rights Council to begin with?

For the past several weeks we’ve heard a collective outcry from the international community about the atrocities perpetrated by Qadaffi.  Are we to believe that this all just began?  Should we believe that two months ago Mr. Qadaffi was petting bunny rabbits and helping old ladies cross the street, but in the last month he turned into a monster?  Of course not.

The fact that Libya was elected to the council to begin with is a sham.  It is just another example of the hypocrisy of the United Nations.   And you don’t have to simply take my word for it– take a look at what the New York Times said here.

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My Foreign Policy Disclaimer

I feel that I need to make a short statement before I embark upon my first substantive post on foreign affairs.  Maybe the word, “disclaimer” is better…

Politically, I consider myself to be a moderate.  For the sake of full disclosure, however, I admit that I lean toward the right.  I say that because I want it to be clear that I am not trying to hide my stripes.  However, I am not interested in engaging in an assault against a politician simply because of the party label that’s worn by that person.  Rather, my intention is to set forth my personal opinion and criticize (or praise) our country’s policy makers, regardless of the party affiliation of any such person.  I have a belief about how U.S. Foreign Policy should be shaped and I will stick to that belief regardless of who is in the White House or leading Congress.  My feelings will certainly become clear throughout my posts, but for the moment, I will say the following:

I believe that the United States has both the ability and responsibility to be a leader among nations.  I believe that our foreign policy should always be guided by the principle that we must take the actions that are in our country’s best interests first, but while doing so we should consider the impact that those actions will have upon the rest of the world.  We certainly have a responsibility to do our best to promote humanitarian interests throughout the world, but we are not the world’s policeman.  That humanitarian effort must be exercised as part of a comprehensive policy that is, at its core, designed to advance American interests.  If I could put that concept into one word I would call it, “selfishlessness.”

I encourage your comments, but hopefully we can keep the discussion to policy, not politics.

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The Best New Ads that Lawyers Can’t Use

Social media and smart phones have unleashed a flood of new advertising possibilities.  Unfortunately, each have a unique set of ethical concerns.Post no bills

Many of us have seen ads on Facebook to the right side of the screen listed under the heading, “Sponsored.”  They’re short ads with some teaser text that tries to entice you to click through to get more information.  That’s the same type of ad being used on the popular Pandora radio smart phone app (and its competitors).  Pandora is an internet radio station that lets you customize the music you hear.  The popular free version of Pandora is subsidized by short teaser ads that are displayed on your phone.  Usually those ads contain little more than a photo and a marketing tag line that entice you to click through, just like the Facebook ad.  The problem is that both the Facebook and Pandora ads potentially violate Rule 7.2.

RPC 7.2(c) states that, “Any communication made pursuant to this rule shall include the name and office address of at least one lawyer or law firm responsible for its content.”  Obviously, the Facebook and Pandora “teaser” style ads don’t include that mandatory information.  Sure, you might be able to click through the ad and find yourself on a landing page that has the required information, but it’s not there on the face of the ad and, as a result, appears to violate the rule.

The other type of new advertising technique that may be off limits to lawyers is the popular Groupon application.  Groupon negotiates discounts with businesses and then offers the deal to thousands of subscribers in a free daily email.  Groupon makes money by getting paid a percentage of what the advertiser earns.  The problem is that if the advertiser is a law firm, that arrangement might constitute improper fee splitting per RPC 5.4(a).

In fact, a proposed (but unpublished) North Carolina ethics opinion states that the Groupon arrangement is not permitted, but the question has been referred to a subcommittee for further review. You can read about the details a bit more in an ABA Journal article here.

It’s the same old story.  This wonderful technology brings both new opportunities and new pitfalls as well.

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The Bar Wants to See Your Facebook Page…

The first shot has been fired in what will certainly become the messiest situation to hit attorney ethics
in decades. Kentucky wants to monitor attorney’s Facebook pages. As my daughter would say,
O…M…G…
The ABA Journal recently reported that, “the [Kentucky] bar has proposed a regulation that would bar
solicitations through social media unless lawyers pay a $75 filing fee and permit regulation by the bar’s
Advertising Commission.” For those who want to see the proposed amendment directly, you can
check out a posting on the website that calls itself the “Kentucky Law Review.”
I understand where they’re coming from. Most of what lawyers do on Facebook and other social
networks are not-so-veiled attempts at promoting themselves and self promoting speech is basically a
subtle form of advertisement. I’ve been telling people in my seminars for a while now that the ethics
rules have always regulated advertising, so it was just a matter of time until some bar extended that
regulation to self promoting speech on social media.
Here’s how the ethics rules regulate attorney speech in this regard: The most current ABA Model Rule
7.2 tells us that lawyers can “advertise services through written, recorded or electronic communication,
including public media.” The actual language that we use in those advertisements is regulated by
Rule 7.1, which states that any communication you make about yourself or your services can not be
false or misleading. Here’s the kicker: The restriction on your speech set forth in Rule 7.1 isn’t limited
to that which is contained in your advertisements. 7.1 covers all communications that you make about
yourself or your services.
There are, therefore, two critical questions: When are your statements on Facebook considered plain
old speech, as opposed to a “communication about a lawyer or the lawyer’s services” that falls under
the purview of rule 7.1? Or seen from another perspective, when do your self promoting statements
cross the line and become an “advertisement” that’s regulated by Rule 7.2?
Kentucky redefined the term advertisement to make it much more broad. What’s scary is that
according to the definition in Kentucky’s proposed regulation, you could be “advertising” by simply
communicating your NAME to another person! Granted, they try to carve out an exception by stating
that “communications of a non-legal nature are not advertisements” but the obvious question is, “Who
determines if your statements are of a non-legal nature?” In Kentucky, the answer is, the Advertising
Commission. Now you’re probably wondering, “What’s the criteria they will use?” Well, your guess is
as good as mine.
Oh yeah…this is gonna be a mess. Not only will we have fun trying to figure out what standards
Kentucky will employ, but each state is likely to address this differently. As my grandmother would say,
“Oy vey….”
[Comments are apparently being accepted in Kentucky until December 15th. I’ll keep you posted on
the developments]
ProblemThe first shot has been fired in what will certainly become the messiest situation to hit attorney ethics in decades. Kentucky wants to monitor attorneys’ Facebook pages. As my daughter would say, O…M…G…

The ABA Journal recently reported that, “the [Kentucky] bar has proposed a regulation that would bar solicitations through social media unless lawyers pay a $75 filing fee and permit regulation by the bar’s Advertising Commission.”  For those who want to see the proposed amendment directly, you can check out a posting on the website that calls itself the “Kentucky Law Review.”

I understand where they’re coming from. Most of what lawyers do on Facebook and other social networks are not-so-veiled attempts at promoting themselves and self promoting speech is basically a subtle form of advertisement. I’ve been telling people in my seminars for a while now that the ethics rules have always regulated advertising, so it was just a matter of time until some bar extended that regulation to self promoting speech on social media.

Here’s how the ethics rules regulate attorney speech in this regard: The most current ABA Model Rule 7.2 tells us that lawyers can “advertise services through written, recorded or electronic communication, including public media.” The actual language that we use in those advertisements is regulated by Rule 7.1, which states that any communication you make about yourself or your services can not be false or misleading. Here’s the kicker:  The restriction on your speech set forth in Rule 7.1 isn’t limited to that which is contained in your advertisements. 7.1 covers all communications that you

make about yourself or your services.

There are, therefore, two critical questions: When are your statements on Facebook considered plain old speech, as opposed to a “communication about a lawyer or the lawyer’s services” that falls under the purview of rule 7.1? Or seen from another perspective, when do your self promoting

statements cross the line and become an “advertisement” that’s regulated by Rule 7.2? Kentucky redefined the term advertisement to make it much more broad. What’s scary is that according to the definition in Kentucky’s proposed regulation, you could be “advertising” by simply communicating your NAME to another person! Granted, they try to carve out an exception by stating that “communications of a non-legal nature are not advertisements” but the obvious question is, “Who determines if your statements are of a non-legal nature?” In Kentucky, the answer is, the Advertising Commission. Now you’re probably wondering, “What’s the criteria they will use?” Well, your guess is as good as mine.

Oh yeah…this is gonna be a mess. Not only will we have fun trying to figure out what standards Kentucky will employ, but each state is likely to address this differently. As my grandmother would say, “Oy vey….”

[Comments are apparently being accepted in Kentucky until December 15th. I’ll keep you posted on the developments]

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Two Ethics Opinions on Social Media Investigations

FB GLassesMost lawyers are already using information found on social media sites as evidence in the courtroom.  The New York Bar Association Committee on Professional Ethics recently issued an opinion confirming that gathering that information is permitted, if you’re viewing public pages (Opinion 843, 9/10/10).  See the New York Opinion Here.

In the New York opinion the question was whether the lawyer could access pages of an adverse party if they’re only accessing the public portion of the page- no friending involved.  The NY Bar said that’s okay.

“Obtaining information about a party available in the Facebook or MySpace profile is similar to obtaining information that is available in publicly accessible online or print media, or through a subscription research service such as Nexis or Factiva, and that is plainly permitted.  Accordingly, we conclude that the lawyer may ethically view and access the Facebook and MySpace profiles of a party other than the lawyer’s client in litigation as long as the party’s profile is available to all members in the network and the lawyer neither “friends” the other party nor directs someone else to do so.

That’s a little different from the opinion issued by the Philadelphia Bar (Opinion 2009-02).  There, a lawyer asked whether she could cause a third party to access the Facebook and MySpace pages maintained by a witness to obtain information that might be useful for impeaching the witness at trial.  The third party would friend the witness purportedly for social reasons, though the real reason would be to collect the information for trial.

The Philadelphia Committee determined that the proposed “friending” is deception in violation of Rules 8.4 and 4.1, and also a supervisory violation under Rule 5.3 because the third party would omit a material fact (i.e., that the third party would be seeking access to the witness’s social networking pages solely to obtain information for the lawyer to use in the pending lawsuit).   See the Philadelphia Opinion Here

I think it’s important to consider that term “deception” from the Philadelphia opinion.  I often tell lawyers that the best approach when using social media is to “Be Smart.”  The concept of avoiding deception puts a little meat on those bones.

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