Social Networking

for the Family Lawyer

Ronald W. NelsonLenexa, KansasTwitter: @KansasDivorcekansas-divorce.com

Brian KarpfWeston, FloridaTwitter: @FlaFamilyLawybkglaw.com

TOP SOCIAL NETWORKING SITES*

November 1, 2013 by eBizMBA.com1 Facebook 750,000,0002 Twitter 250,000,000 3 LinkedIn 110,000,000 4 PInterest 85,500,000 5 MySpace 70,500,000 6 Google + 65,000,000 7 Instagram 50,000,000 8 DeviantArt 25,500,000 9 LiveJournal 20,500,00010 Tagged 19,500,000*unique monthly users

TOP SOCIAL NETWORKING SITES*

November 1, 2013 by eBizMBA.com1 Google 900,000,0002 Facebook 700,000,000 3 Yahoo 500,000,000 4 YouTube 450,000,000 5 Wikipedia 350,000,000

*unique monthly users6 MSN 325,000,000 7 Amazon 250,000,000 8 Ebay 210,000,000 9 Twitter 200,000,00010 Bing 165,000,00011 Craiglist 150,000,000

Why should we care?

Ethics

DOs and DON’Ts

DON’T hold yourself out as something you are not

DOs and DON’TsDON’T hold yourself out as something you are not

DO NOT reference personally identifiable or private information about clients or cases.

1.6 Confidentiality of Information

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

DOs and DON’TsDON’T hold yourself out as something you are not

DO NOT reference personally identifiable or private information about clients or cases.

DO NOT use social media (or any media) to pursue ex parte communications with the court

DOs and DON’TsDON’T hold yourself out as something you are not

DO NOT reference personally identifiable or private information about clients or cases.

DO NOT use social media (or any media) to pursue ex parte communications with the court

DO NOT give legal advise on social media sites.

The Initial Client Meeting

PrivacyAsk clients about their social media accounts:

What social media do you use (expansive)?What are your screennames/IDs? Who has access to/knowledge of accounts/passwords? How do you use social media?When have you posted; how often?

Discuss use of account privacy settings & limiting others’ access

Advise clients to be aware of what others post online, what is available on others’ accounts – and that there’s virtually no way to stop it.

Advise clients to think before posting ANYTHING

Advise clients to limit or discontinue social media use

Advise clients to limit or discontinue social media use – but be very careful about how you do it.

Investigation

4.1 Truthfulness In Statements To Others

In the course of representing a client a lawyer shall not knowingly:

(a) make a false statement of material fact or law to a third person; or

(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

Rule 4.2 Communication with Person Represented by Counsel

In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.

Rule 4.4 Respect for Rights of Third Persons

(a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.

8.2 Maintaining The IntegrityOf The Profession

(a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.

Discovery

"Facebook helps you connect and share with the people in your life." But what if the people in your life want to use your Facebook posts against you in a civil lawsuit? Whether and to what extent online social networking information is discoverable in a civil case is the issue currently before the Court.

Largent v. Reed, Penn Ct Common Pleas

“While a social networking or other kind of personal website might well contain depictions of specific instances of conduct, such a website must be deemed a gestalt and not simply a conglomeration of parts. When regarded as itself, a social networking or personal website is more in the nature of a semi-permanent yet fluid autobiography presented to the world.”

People v. Orlewicz, – Mich.App. – June 14, 2011

Evidence

Electronically stored information is admissible when:

RelevanceAuthenticIs not hearsay or material falls under an exception to the hearsay ruleProbative value outweighs prejudicial effect

Lorraine v. Markel American Insur. Co., 241 F.R.D. 534

(D.Maryland 2007)

Evidence - RelevanceFedREvid 401.

Evidence is relevant if:

(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and

(b) the fact is of consequence in determining the action.

Evidence – Authentication

FedREvid 901

(a)In General. To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.

Evidence – Authentication

“The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. [The applicable evidence rule] does not erect a particularly high hurdle, and that hurdle may be cleared by circumstantial evidence.”

Manuel v. Texas, Tx Crim Appeals, 12th Dist., Aug 31, 2011

Evidence – Authentication

Authentication may be obtained by:Asking the purported creator about the profile/contentReply letter doctrineCircumstantial evidence Information Directly from Social Networking SiteComputer forensics

Evidence – Authentication

Authentication may be established by a document’s appearance, contents, substance, internal patterns or other distinctive characteristics, taken in conjunction with surrounding circumstances.

U.S. v. Siddiqui, 235 F.3d 1318 (11th Cir. 2000)

Evidence – Authentication

In this case, the internal content of the MySpace postings – photographs, comments, and music – was sufficient circumstantial evidence to establish a prima facie case such that a reasonable juror [fact finder] could have found that they were created and maintained by the appeallant.

Tienda v. State of Texas, 5th Ct Crim Appeals, PD-0312-11 (Feb 8, 2012)

Evidence – Hearsay &Exceptions

FedREvid 801(c)

“Hearsay” means a statement that:the declarant does not make while testifying at the current trial or hearing; anda party offers in evidence to prove the truth of the matter asserted in the statement.

Evidence – Hearsay & Exceptions

FedREvid 801(d):

A statement that meets the following conditions is not hearsay:

Hearsay Exceptions – Prior Statement by Declarant

(1) The declarant testifies and is subject to cross-examination about a prior statement, and the statement:

(A) is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition;

(B) is consistent with the declarant’s testimony and is offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or

(C) identifies a person as someone the declarant perceived earlier.

Hearsay Exceptions – Prior Statements of Opposing Party

(2) The statement is offered against an opposing party and:

(A) was made by the party in an individual or representative capacity;

(B) is one the party manifested that it adopted or believed to be true;

(C) was made by a person whom the party authorized to make a statement on the subject;

(D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or

(E) was made by the party’s coconspirator during and in furtherance of the conspiracy.

The statement must be considered but does not by itself establish the declarant’s authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E).

Hearsay Exceptions Regardless Whether Declarant is Available as a

Witness

FedREvid 803.

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

Present sense impressionThen-existing mental, emotional, or physical condition. Excited utteranceReputational evidenceRecorded recollections

Social Networking

for the Family Lawyer

Ronald W. NelsonLenexa, KansasTwitter: @KansasDivorcekansas-divorce.comwith Ashlyn Yarnell

Brian KarpfWeston, FloridaTwitter: @FlaFamilyLawybkglaw.com