The next logical question for judicial social networking policies has arrived: does this apply to the JA?

Yes, at least in part.  A judicial assistant can friend lawyers who appear before the court.  However, the limitations may devour the rule here.  The JA cannot post anything which makes “reference to the judge or the judge’s office…”  and the posts must be “outside of the judicial assistant’s responsibilities and independent of the judge…”  Given the frequency that people use Facebook at work (including listing where they work in their profile) and the amount of time we all spend at the office, those prohibitions seem fairly high.

JEAC Opinion 2010-04 goes on to note that any lawyer who attempts ex parte communication with the JA via social networking sites should have their head examined and should be de-friended and reported to the judge.

For attendees, or just those interested, the powerpoint linked under “Materials” on the right hand column.

According to Opinion 742, New York adopted Rule 1.2 which allows “limited scope representation.”  Their Rule looks similar, if not identical, to Florida’s Rule of Professional Conduct 4-1.2.  The ABA had some nice coverage as well.

The Opinion states that lawyers can play a “limited role” with informed (written) consent of the client without disclosing the involvement to the court or opposing party except if there is a rule, order or failure to do so constitutes misrepresentation (or triggers another ethical rule).  Even so, “disclosure” need not include the lawyer’s identity.

Need quick access to the Florida ethics rules?  Consider this.

The Florida Supreme Court and Bar, on the other hand, are still working on Internet advertising regulations for Florida lawyers which they have been kicking around since the pre-Twitter era.  FINRA, which handles brokers on a national scale, has repeatedly addressed Internet and social networking issues — touching upon record keeping, advertising, and book/record requirements, according to their press release.  Conversely, the Bar has not been user-friendly in getting a clear explanation into the hands of lawyers.

In August 2008, Judge Dempsey won by nearly 60% of the votes.

We could not find the YouTube video with the title “re-elect” but we did find this election ad.  At least one website suggested that the video title was written by the judge’s campaign manager without her knowledge.  Another website suggests that “re-elect” is an appropriate term under election laws.  However, the YouTube ad coyly mentions “18 years” in an incomplete sentence while the remainder of the advertisement focuses on “experience” — even challenging others for how they “talk” about experience.

This article points out that, in 2008, the judge had 14 years of experience NOT 20 years or even the “18 years” mentioned in the video.  Looking at Judge Dempsey’s attorney profile, she graduated from law school in 1993.  Presumably, that means she entered law school in 1990 right after college.  Is she is calculating “18 years” beginning the moment she stepped in law school?  Given that the voiceover simply says the words, “18 years,” with nothing more, the viewer may be left to assume she’s been a member of the Florida Bar for 18 years.

While on the topic of peering into a candidate’s questioned resume, one might wonder if there is a gap of time between her 1993 graduation and 1994 bar admission.  Also unclear is how she lists her work as an assistant state attorney beginning in March 1994 when she was not admitted to practice until May 2, 1994.

The Supreme Court did not specifically indicate if a campaigning judge could pack in time during law school as legal experience.

A 15-year associate plotted his move from a law firm to solo practice and reportedly (1) removed and copied at least one client filed, (2) kept client files with him and returned the files with some documents missing, and (3) knew of his girlfriend and former paralegal “hacking into the firm’s system to obscure client contact information.

The case went to trial and resulted in a $1.47 million judgment based upon a civil theft claim.  The appellate court acknowledged that the plaintiff law firm had successfully proven civil theft — but not causation.  In short, the copying of the file; the holding of the files; the missing documents; and the hacking were never proven to proximately cause the loss of the clients.

UPDATED || The Florida Bar reports that all of these lawyers above possess active Florida law licenses.

As a starting place, the Florida Supreme Court is working off of proposals which began BEFORE TWITTER EVEN EXISTED.

* The good news is that there is a Florida Bar Standing Committee on Advertising.  Further good news is that they offer a “handbook on advertising” which is available on the web.  Too bad the link is broken.

* But we jest.  In part.  The Bar has a page regarding website advertising, including the handbook, here.

* By the way, if you want to find out information about the Bar’s Standing Committee on Advertising, do a Google search for it.  Yes, you’ll get results like that, where the first page of hits includes a site from… 1996.

* What does NOT readily come up in a Google search for “Florida Bar Standing Committee on Advertising” is this page, with the committee member names, which you can find by meandering and aimlessly drilling down on links in the Bar website.  The page provides nothing on the Committee’s recent activity.  I was unable to find more current information (can you?).

* The Standing Committee on Advertising has an (undated) set of Guidelines for An Attorney’s Statement of Qualifications and Experience.

* November 19, 2009: Florida Supreme Court issues In Re: Amendments to the Rules Regulating the Florida Bar – Rule 4-7.6, Computer Accessed Communications. This allows lawyers to create an “upon request” section for solicited communications by potential clients to lawyers, which would then exempt the lawyer’s communication advertisement from Rule 4-7.2.  Effective date was January 1, 2010.

* The Bar petitioned an extension to the January 1, 2010 date.  In this January 1 Bar News Article, there’s no indication of the status of the request for an extension (nor is there a clear indicator in the January 15 article, below).

* After this ruling, in mid-December 2009, the Board of Governors determined that the Bar will not review attorney websites, even if voluntarily submitted but will answer calls from lawyers asking specific questions.

* On December 29, the Florida Bar’s Standing Committee on Advertising issued guidelines to help lawyers meet the new rules.  Good thing the Florida Bar News’ January 15, 2010 article, “Panel Offers Guidance to Bring Lawyers’ Web Sites into Compliance” is available online with excerpts from those guidelines, since doing a Google search for the guidelines will get you nowhere.  The article is here.

* The front page of the Florida Bar site does not provide patent guidance.  The “Rules Update” page is confusing… but here it is.

* Were you thinking about joining the Standing Committee to see if you could change things?  The instructions on how to apply are here.  Were you able to find the link to the form?  (hint: hidden in the upper right corner)

If I am off the mark and missing some readily-apparent resources, someone please clue me in.

We are provided few details of the underlying claim or the information sought.  If we’re interpreting the decision correctly, the resident suffered from dementia and died — thus, the plaintiff and counsel could not obtain information — presumably about accident(s) or condition(s) — from the resident.  The incident reports in question therefore appear to specifically involve or relate to the parties; this does not appear to be a situation where a nursing home plaintiff is seeking production of incident reports for other residents.

Also worth noting, the opinion reported that names of employees and other witnesses were only available on the incident reports.  The Panel informs us that there was “no serious argument has been made that the incident reports at issue do not contain relevant information that the [plaintiff] need.”  Under Rule 1.280(b)(3), the court then held that the only issue was the second prong: undue hardship.

In interpreting that second step, the split panel concluded, “ [t]o determine whether a moving party will experience undue hardship, courts must balance the moving party’s burden in obtaining information with the non-moving party’s burden of production. Here the trial court determined the [plaintiff] had no realistic way to independently procure the information and the [defendant] had the incident reports at their immediate disposal.”

Under this analysis, once a defendant essentially forfeits the first prong of the privilege, the remaining analysis is a battle-of-hardship, where, if the defendant actually has the documents, their “hardship” in handing over incident reports is likely marginal at best.

Some deeper case-specific analysis may be warranted but it seems that the defendant may have been able to avoid this dispute by simply identifying personnel who were present/witnessed the events in question.  The plaintiff would then depose those individuals but the actual incident report(s) would remain privileged.  Shielding the identity of the only witnesses behind a privilege seems like a scenario where a court might reasonably conclude that the requesting party has no other recourse but to obtain the privileged documentation.

If the analysis in the opinion holds, the plaintiff might still be entitled to the incident reports even if they receive the names of witnesses since taking depositions of witnesses is likely more of a “hardship” than receiving an incident report (as the court put it, “[the trial judge] determined the burden faced by the [plaintiff] was unduly difficult in comparison to the ease with which the defendant could produce the reports.”).

While we were expecting some evidence of Internet fear and misunderstanding, both panels appear to have a reasonable grasp on both the zeitgeist of the new media and the purpose of arcane legal rules.

According to Florida JEAC, judges are not supposed to openly “select” and identify friends since the concern is that this creates the appearance that the “friend” sits in a special position.  A minority on the panel apparently felt that the word “friend” has been bent so far (from noun to verb to… nothing) that the implication isn’t there.  However, consider a situation where you are first appearing before a judge only to learn that your jurist is a (published) Facebook friend of your opponent.  Depending upon how heated your case gets, the ugly implication will roost somewhere in your mind.  Or your client’s.

Anyone can be a “fan” of a judge’s page since that does not involve the jurist making a selection.  Again, as the committee wrote, “to the extent that such ["friending"] identification is available for another person to view, the committee concludes that this practice would violate [judicial rules].”

If it sounds a bit heavy-handed, judges knew going into their situation that they would suffer some unusual social burdens and restrictions, as warned under Canon 5a.  Likely, there are far more sticky situations than Facebook.

But, judges can be friends with non-lawyers and lawyers who do not appear before them.  Additionally, judges can be associated with lawyers in other Internet groups, as long as the judge is not selecting/de-selecting the public association.

The South Carolina Judicial Department likewise has some opinions.  In their October 2009 opinion, which received virtually no press until after the Florida story broke, judges may be members of Facebook and be friends with law enforcement officers and employees of the Magistrate as long as they do not discuss anything related to the judge’s position.

How did Florida and South Carolina beat everyone to the punch on these techno-legal issue?  One would expect New York or California on the cusp of this one.

The Second District recently cleared some of the air surrounding circumstances when a lawyer can represent one party even though counsel may have to take the stand.  We turn to the facts of Alto Construction Company, Inc. v. Flagler Construction Equipment, LLC (Wallace, Fulmer and Northcutt).

Attorney Lorraine Jahn represents the defendant Alto both in this construction-related breach of contract case BUT she also was on retainer for Flagler and had previously had communications with Flagler employees about the dispute which blew up into this lawsuit (offhand, we wonder how that retainer relationship might be going these days…).  Once suit kicked up and she appeared for Alto, Flagler sought to disqualify her as a material witness and potential co-defendant.

At an evidentiary hearing, various arguments were raised and, inter alia, the trial court affirmed that the lawyer had not violated any ethical obligations.  That said, the trial court acknowledged that she may be a material witness due to her involvement in the issues prior to suit.  For that reason, the trial court entered an order disqualifying her.

On appeal, the Panel noted that the Rules Regulating the Florida Bar do not mandate an attorney’s automatic disqualification when he or she is called to testify.  See R. Regulating Fla. Bar. 4-3.7(a), “a lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness on behalf of the client.”  Here, an Alto representative filed an affidavit that they did not intend to call her.  Case law indicates that a lawyer would be disqualified if called by the opposing party and if the lawyer’s testimony will be sufficiently adverse to the factual assertions or accounts offered on behalf of the client.”  In short, the general rule appears to be that (1) your own client can’t call you to the stand as a necessary witness or “central figure” and (2) you can’t testify contrary to your opening/closing.