FloridaLawCommentary.com

As has been recently well-hyped, there are certain restrictions on Florida judge’s use of social networks.  It apparently took awhile for everyone to notice a November 17 Judicial Ethics Advisory Committee report but once the New York Times got a hold of it nearly a month later on December 10, the Florida media kicked it into gear with front page coverage the next day in the Daily Business Review (and other publications).  But South Carolina had quietly already jumped into the fray.

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 answer is a mixed bag, with the least favorable outcomes in federal court under the Federal Rules of Criminal Procedure.

In a recent federal criminal case in Georgia, the Judge in U.S. v. John Mark Shelnutt wrote that, “the request to ‘tweet’ from the courtroom is denied.  According to the 4-page opinion, Rule 53 prohibits photographs and “broadcasting” from inside the courtroom.  The court acknowledges that “broadcasting” usually refers to TV or radio, it relied on Webster’s to broadly define broadcasting as widely disseminating information.  

Stated in more federal court-like manner, the judge concluded that contemporaneous transmission of electronic messages of courtroom activities intended to be widely and instantaneously accessible was impermissible broadcasting.  Our thanks to the ABA Journal Mobile for the scoop.

Contrast the foregoing with a Kansas federal court judge or a more recent Colorado state court judge.

We note, at least locally, Palm Beach Post reporter, Susan Spencer-Wendel, covers trials via Twitter.

The Internet has invigorated questions about depositions which has laid fairly dormant for years: who “owns” a deposition video or transcript?  Is it public record?

Ever considered posting a video deposition on YouTube?  Is that allowed?  A quick search suggests there’s more than two thousand video depos on YouTube.

We’re not impressed that these questions have been squarely answered but the Merrill Corporation has done a fairly tidy job summarizing the issue in their essay, “Is that Me on YouTube?  Ground Rules for Access, Use and Sharing of Digital Depositions.”

We won’t summarize Merrill’s work but add these thoughts:

1.  The Court likely does not “own” the deposition transcript/video but clearly has control over it.

2.  Filing the transcript/video in the court file makes it public record.  Filing it before using it elsewhere seems like a threshold step to avoid lengthy questions as to what is or is not public record.

3.  I’m not impressed with the idea the court reporter owns the transcript.  Again, there is little to no law on point but I think the requesting attorney hired the reporter for a job and gets the benefit of the work product.  I also mention that, under FRCP 30(f)(3), the reporter can be ordered who can get a copy.   That suggests the reporter plainly doesn’t own the transcript free and clear.

4.  The question of the right to distribute seems to come down to (a) is it filed with the court, (b) is there a danger of impairing law enforcement or judicial efficiency, (c) privacy interest of those resisting disclosure, and (d) nature/degree of injury to party if information is released.  Here in Florida, there is a trend towards more open invasive discovery and clamping down on the distribution of public record information seems counterculture to Florida legal theories and trends.

5.  Merrill notes some interesting potential privacy violations if the transcript includes HIPAA, drug, alcohol or mental health treatment.

6.  Merrill also casts a shadow over the practice of sharing expert deposition transcripts (for the reasons in #5) but cites no case or instance where that ultimately became a legal issue.

7.  Suggestions?  File the video or transcript with the court and, if you’re going to distribute on YouTube or elsewhere, consider distributing edited snipets.

After the flood  of attention which lawyers and the media have recently paid to social networking sites, the next logical emphasis will be the ethical use, and mis-use, of such sites by lawyers.

Trying to jump start that inquiry, in Internet Social Networking Sites For Lawyers, we hinted at the risks of Facebook-friend’ing prospective jury members (improper contact under Rule 4-3.5) and we raised concerns about the use of social networking sites being deemed as advertising violations (Rules 4-7 and 4-15).  Indeed, in a recent presentation, we even discussed whether a law firm could revise and tailor its website prior to trial.  We also proposed to a paralegal group that they could not anonymously send Facebook-friend requests to jury members.

But we were clearly not thorough nor quick enough.  The Philadelphia Bar Association Professional Guidance Committee hustled out its Opinion 2009-02 which held that a lawyer could not ask a “third person” (presumably a paralegal or office employee) to Facebook-friend a deposition witness so the lawyer could surreptitiously access the witness’ Facebook page.

For the uninitiated, the default setting on a person’s Facebook page is that only invited/permitted users can see the page.  To gain access, a user needs to send a “Facebook friend request.”  That request usually is accomplished by clicking a button which says “send Friend request.”   There is a discreet link which says “Send a Personal Message” where the pursuing user can enter a greeting or identification or some kind but, at least anecdotally, this is rarely used.  The receiving user can see the name, picture, and a brief description of the person sending the friend request.  That person can then “confirm” or “ignore” the request.  For a good summary of this process, look here.

Here, the lawyer believed the deponent had information on her web page and somehow believed she would accept just about anyone as a Facebook friend (presumably there was some discussion as to the number of Facebook friends or her Facebook practices).  In person, the lawyer did not ask to be a Facebook-friend.  Instead, the question was raised whether the lawyer could properly have a third person send the request — a person who the witness would likely not be able to identify as someone associated with the lawyer.  The obvious intention was that the Facebook-promiscuous user would blindly accept the friend request, thereby giving the lawyer access to the page.

The Philly Bar concluded that this was improperly deceptive under their Rule 8.4, which is nearly word-for-word identical to Florida Rule Regulating the Florida Bar 4-8.4.

First, the lawyer was responsible for the acts of the third person since the lawyer was asking for and ratifying the conduct.  Second, the lawyer was purportedly “engag[ing] in conduct involving dishonesty, fraud, deceit or misrepresentation… because the planned communication by the third party with the witness is deceptive [because] it omits a highly material fact, namely, that the third party who asks to be allowed access to the witness’ pages is doing so only because he or she is intent… on sharing it with the lawyer for use in a lawsuit to impeach the testimony of the witness.”

Unlike that Bar, we note that Facebook friend request typically do not involve an explanation / introduction and question whether this is truly “hiding” information.  Then again, in a non-virtual world example, a lawyer asking another person to cozy up to a witness at a bar to get information seems improper.  Your thoughts?  Comments welcome below.