Posts Tagged ‘social media’

Cleaning Up Facebook Leads to Sanctions

Wednesday, November 9th, 2011

In a previous post I noted this admonition from an analysis by H. Christopher Boehning and Daniel J. Toal of  a recent article published in the Delaware Law Review, in which attorney Margaret DiBianca ” identified a number of these novel ethical issues:

Upon learning that a client’s social networking site contains information that is potentially harmful to a claim or defense, a lawyer may be tempted to advise the client to remove the harmful content. To do so, however, would risk running afoul of Rule 3.4 (a), and incurring sanctions for spoliation of evidence.

Failure to heed that warning (although the events recounted here likely occurred before the warning appeared in the article) has indeed lead to significant sanctions for an attorney (and the attorney’s client) who directed his paralegal to direct his client to “clean up” his Facebook page. The sanctions? Well, they totaled $722,000 (to be paid presumably out of a $5,000,000 judgment the client had obtain against the defendant in the proceeding in which the sanctions were issued. Here’s more:

”According to a September 1 order from Judge Hogshire, the spoliation began in March 25, 2009, when Murray received a discovery request for the contents of Lester’s Facebook account. Attached was a photo of Lester wearing a ‘I [heart] hot moms” t-shirt, and holding a beer can with other young adults.
Murray instructed a paralegal to tell Lester to ”clean up” his Facebook page because, ”we don’t want blowups of this stuff at trial,” the assistant, Marlina Smith, said in a disposition. She emailed that message to Lester the next day.
On March 26, 2009, according to the judge’s order, Murray came up with a scheme to take down or deactivate Lester’s Facebook account so that he could respond that he has no Facebook page on the date the discovery request was signed.
When defense attorneys filed a motion to compel, Murray instructed Lester to reactivate the account. But in a December 16 2009, deposition, Lester denied deactivating the account.
Murray is also accused of withholding the email from Smith instructing Lester to clean up his Facebook page when he was ordered to produce it shortly before the trial began. Murray falsely claimed after the trial that the omission was the paralegal’s mistake, according to the court order.”

The rest is here from JDJournal.com, but this is enough to bring me to the second point of this story that is worthy of comment:

 “Murray [the attorney] falsely claimed after the trial that the omission was the paralegal’s mistake, according to the court order.”

On second thought, it is probably not in need of comment as it seems to speak volumes all by itself.

So what if he’s a “a tyrant, an idiot, a weasel and a dump truck?”

Sunday, September 11th, 2011

We have all worked with, and often for, persons who meet this description (or something close to it.) Do not write it or even say it, except to the most intimate of your friends and relations. If those friends are fellow employees, don’t even say it to them. Do not post it on Facebook, Twitter, or other social media. As a story in ABAJournal.com illustrates, it can become grounds for termination of your employment or – at the very least – ground for a defense against an a claim for wrongful termination.

One can certainly sympathize with the person who wrote these emails both because of the culture of the office at the time and because it is very, very hard to work with or for a tyrant, idiot, weasel or a dump truck, much less someone is embodies them all. But, office email and social networks (online or in person) are not the places to vent the frustration that goes with working with or for them. (As noted in The Empowered Paralegal: Effective, Efficient, and Professional the same goes for comments about clients.)

The problems is not all about the possible consequences, which go beyond lost of a job to the perception persons have of you as a professional. Even those who agree with you will think less of you for having lowered yourself to this form of name-calling. Worse, yet you will be (and therefore feel) less professional. This will cause you to lose some of the respect most necessary for empowerment – respect for yourself.

More Social Media Dangers

Saturday, February 5th, 2011

From time to time I’ve posted here on the dangers facing paralegals using social media, although I usually leave social media to Lynne Devenney at Practical Paralegalism because she covers it so well. However, the coincidence of a discussion on the Paralegal Today listserv and an article in the ABA Journal lead me to the topic for today’s post.

The listserv discussion began with a “venting” post by a paralegal. The vent itself was not bad and seemed to cover a legitimate gripe. However, one commenter soon noted, “Should you get a really vengeful supervisor — it would not be a good idea for you to have in writing this stuff with the firm name attached. You guys all know this – email has become as common place as talking now days…. and you don’t know who else is reading…… just a word to the wise – THANSK! deb”  This, in turn, prompted another post, “What a world when we have to live in fear of “what if my supervisor is lurking here to see what I say about my job?” Do you really think they have the time to be concerned with this?”  Most recently, Linda Whipple posted another of her insightful comments:

Nastynady the advice about venting about your boss in this particular vent is very smart advice. If you go back to her initial “vent” on this list serve she used her firm’s signature which is a dead giveaway if anyone in her firm or from a firm in her town decided to forward it to her boss directly. She would have been better served venting under an email “handle” such as nastynady rather than her own name with her firm’s name anywhere in that email. That is a dangerous game in today’s job market and the Venting came dangerously close to libel which could cost her more than her job. If members want to vent on this list serve by all means do so but don’t make it obvious as to who you are or who you are venting about. I just read in the news of a very similar situation that occurred locally here and the employee then sued the firm for wrongful termination. The jury wasn’t impressed and found for the employer. The article pointed out the employee in the end of the day also ruined her name as well as having dragged the firm thru a cmpletely avoidable termnation and lawsuit just by using “good judgment”. In our member’s situation I hope we don’t get a follow up venting over the loss of her job . . . . Just my 2 cents.

The advice from Linda and deb is good advice, a point emphasized by the ABA Journal article I referenced in the beginning entitled, “Seduced: For Lawyers, the Appeal of Social Media is Obvious. It is also Dangerous.” While the danger is depicted through lawyer examples, the basic point applies to paralegals. Examples include:

Sean W. Conway  who thought he was writing an ordinary blog post never suspecting he would wind up facing ethics charges.

“I felt completely within my rights as a citizen, exposing what I thought was an injustice,” he says. It seemed to the then-35-year-old defense attorney that a Florida circuit court judge was methodically depriving criminal defendants of their right to a speedy trial. Instead of allowing them four or five weeks to prepare for trial, as was routine, Judge Cheryl Alemán was asking defendants whether they were ready for trial only about a week after their arraignment, according to Conway.

His post, according to the Florida,  violated five ethics rules and  the Florida Supreme Court rejected the argument his statements were protected by the First Amendment. this. The result: a public reprimand and a fine of $1,250.

B. Carlton Terry Jr.,  North Carolina judge was publicly reprimanded by the state’s Judicial Standards Commission for becoming  a Facebook friend of an attorney appearing in a case before the him, and the two men exchanged a few brief online comments regarding the proceeding.

Kristine A. Peshek, an assistant public defender, blogged about the cases she worked on. ABA Journal reports, “Because she allegedly revealed confidential client information, Peshek was fired and then charged with violating legal ethics.”

The examples are not limited to attorneys. The article goes on to note:

Linda Lea Viken, a family law specialist who heads the Viken Law Firm in Rapid City, S.D., offers examples from her practice and that of her colleagues:

• A wife discovered her spouse was philandering when she went to his Facebook page, found a picture of him with another woman, then clicked on the picture and was taken to the other woman’s page. That displayed a picture of the pair drinking and embracing in a more-than-friendly fashion.

• A spouse is supposed to be watching the kids but is partying instead. Then a video of the spouse at the party is posted on YouTube.

• A mother, fighting for child custody, claimed the father had a terrible temper. The father denied it on the stand, then was confronted with a self-description he had posted on his Facebook page: “If you have the balls to get in my face, I’ll kick your ass into submission.”

But apparently a paralegal could cause problems not just by dissing their attorneys, but by praising them too highly:

Consider, for instance, an attorney who has a listing on LinkedIn. All the information she posts about herself must be correct or she will violate Rule 7.1. But what about information posted by others? LinkedIn (and some other social media) allows users to “recommend” others and praise their work. If a client posts a wonderful recommendation, must that praise comply with Rule 7.1?

Yes, according to the Ethics Advisory Committee of the South Carolina Bar, which stated in Ethics Advisory Opinion 09-10 (2009) that any such recommendation must not “create unjustified expectations or otherwise mislead a prospective client.” The Ohio Board of Com missioners on Grievances and Discipline also issued an opinion to the same effect, No. 2000-6 (2000).

Ethics rules might require even more from attorneys. The South Carolina Bar stated, in Advisory Opinion 99-09 (1999), that a lawyer must act against too-favorable comments posted by a client on the client’s own online site. Once a lawyer learns of these comments, the lawyer must tell the client to conform its statements to the ethics rules. If the client refuses, the lawyer must stop representing the client, or the lawyer will be deemed to have authorized or adopted the comments.

I assume the same would apply to comments made by a paralegal on a listserv or on their own Facebook page!

Bottom line is that the dangers of social media use are many and often not obvious. The ABA Journal article is long and I’ve only included brief excerpts here. I do suggest taking the time to read the whole piece.

Another Facebook Faux Pas

Monday, May 17th, 2010

A fairly frequent topic here is the danger posed by social media and the use of the internet in general. Obviously I’m a big fan of the internet – tough to blog without some good feeling about the internet. But any legal professional needs be mindful of the dangers of the internet. In essence, a professional must be professional on the internet because the line separating professional and personal lives hardly exists there. Lynne Devenney of Practical Paralegalismprovides today’s lesson in this regard. As always, Lynne adds to the lesson with words of wisdom. I have a lot of writing to do tonight, so I’ll not say more.

Click here to get the lowdown from Lynne: How to Get Fired on Facebook 101.

NFPA Announcement: Paralegal Teaching Paralegals

Wednesday, January 20th, 2010

Lynne DeVenny of Practical Paralegalism is one of my favorite paralegal bloggers, so naturally I was pleased to see that NFPA has enlisted her for its 2010 Tech Institute. Part of the announcement follows. I’ve never met Lynne or seen her present in person, but based on her blog and the podcast she does with Vicki Voisin, The Paralegal Mentor I suspect she’ll be a great addition to the Tech Institute. Aside from pumping Lynne’s appearance, this is an excellent opportunity to mention once again the importance of continuing education to the professional paralegal and the importance of organization such as NFPA to the paralegal profession, so I am mentioning both.

Paralegal Teaching Paralegals — Blogger Lynne DeVenny Presenting at NFPA Tech Institute

Come meet a paralegal pioneer at NFPA’s 2010 Tech Institute, March 26-27, in San Jose, CA. See www.paralegals.org for more information.

Lynne J. DeVenny, a North Carolina State Bar Certified Paralegal employed by Elliot Pishko Morgan P.A.  in Winston-Salem, NC, and a blogger at Practical Paralegalism ( http://www.practicalparalegalism.com/ ) is presenting a seminar at the NFPA Tech Institute about the key role that social media and Web 2.0 play in career and case development. She’ll share ways that today’s paralegals can use interactive Internet resources to stay ahead of the game, gain new technological and practice skills, and advance professionally.