Tag Archives: Lawyers

(UPDATE): Lawyers & Judges: Be Careful Who You Friend

Several months ago, I wrote about an interesting case in Florida; the post discussed a Florida appellate decision holding that a trial court judge should have recused himself because he was Facebook friends with the prosecutor. Summarizing from Lawyers & Judges: Be Careful Who You Friend:fbkgavel-a

In Domville v. State, — So.3d —-, 2012 WL 3826764 (Fla. App. 2012), the defendant moved to disqualify the trial court judge because of the judge and the prosecuting attorney were Facebook friends. Id. at *1 (“Petitioner Pierre Domville moved to disqualify the trial judge. The motion was supported by an affidavit averring that the prosecutor handling the case and the trial judge are Facebook ‘friends.’ This relationship caused Domville to believe that the judge could not ‘be fair and impartial.’”). The trial court denied the motion and Domville appealed.

The appellate court reversed the trial court and concluded that “[A] judge’s activity on a social networking site may undermine confidence in the judge’s neutrality. Judges must be vigilant in monitoring their public conduct so as to avoid situations that will compromise the appearance of impartiality.” Id. at *2. And since Domville had “alleged facts that would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial,” id., the appellate court reversed the trial court and disqualified the trial court judge.

According to the ABA Journal, Florida courts are now looking to the Florida Supreme Court for guidance on the issue. As noted in Should a judge recuse due to Facebook friendship with prosecutor? Florida supremes asked to decide:

A Florida appeals court wants guidance on an ethics issue: Should judges recuse from cases when they are Facebook friends with the prosecutor?

The 4th District Court of Appeal said on Wednesday that the matter is of great importance, and the Florida Supreme Court should decide the issue . . . .

It will be interesting to see how this case continues to develop. It is hard for me to imagine a world where judges must recuse themselves if they are Facebook friends with counsel. Most judges are former lawyers, worked for years with other lawyers, and continue to associate with lawyers. That a judge is a Facebook friend with another lawyer is no surprise at all. Personally, I am Facebook friends with several judges, most of whom were my “friends” before they took the bench. That we are “friends” says nothing (in my mind) about the judge’s ability to act impartially with respect to the matters before it. If we can be “friends” in real life, can’t we be friends on social networks?

The Florida Supreme Court should find that judges and lawyers can be Facebook friends without violating any ethical rules and that the “friendship” does not require recusal (absent additional factors).

 

Microsoft OneNote for Lawyers

I tweeted this out earlier. I would love to get some reaction. I have never been a big user of OneNote but it seems like lawyers could (and should) be using it. This is particularly true as its level of integration with Outlook (and Word) increases. Let me know what you think.

 

Let’s get a discussion going in the comments so that everyone can benefit. Or, if you have some links to articles or other publications, send them to me (via the contact form) and I will add them to the post so that everyone can benefit.

Beginning in 2013, let’s make Social Media, Esq.™ a little more social!

 

Free Digital “Business Cards” for Lawyers –

I was at a deposition yesterday and, as is nearly always the case, we wen through the ritualistic exchange of business cards. We joked, like we always do, about the fact that business cards are basically worthless these days (setting aside, of course, the court reporter’s need to have everyone’s contact information). We laughed a little and proceeded with the deposition.

After thinking about it a little more, I started to wonder what lawyers are using to replace the “traditional” business card. Nearly everyone has a “bio” page on their firm’s website. And that page usually contains all the necessary contact information (and oftentimes, you can find a .vcard to download straight to your address book). But people like us (meaning you and me) like to be progressive, so we don’t want to rely on the static firm biography page. We want something more. Here are a couple of ideas (based on what I have done). I hope that you will provide some more suggestions (so I can use them).

At the outset, think of this as the online version of the elevator pitch. “How can I present the information I want to present in the fastest, most memorable way pospsible.” That is the goal here. Create an “online business card” that is easily accessible and easily remembered.

First, you almost certainly have your biography listed on LinkedInMartindaleAvvo, or somewhere similar. You can always use links to those listings as a business card of sorts:

http://www.linkedin.com/in/tysonsnow
http://www.avvo.com/attorneys/84101-ut-tyson-snow-1902079.html
http://www.martindale.com/Tyson-B-Snow/4103830-lawyer.htm

But those sites are not really designed to serve the purpose provided by the traditional business card. And no one, including you, is going to remember the actual URL, even if the site provides some form of automatic link shortening:

http://linkd.in/X676mS

So, what is the solution? Here are the two things I suggest.

First, you can use one of the many free “profile” websites. The two I am most familiar with are about.me and flavors.me but I know there are many others. Signup for an account and in 10 or 15 minutes, you can create a nifty looking “business card” biography:

http://about.me/tsnow

There are some beautiful about.me and flavors.me websites out there; mine is not one of them. But it did take less than 15 minutes. (And I do plan on making it better.)

Option two: create your own online business card:

http://www.tysonsnow.co

I would have gone with tyson.com (but it is taken by a chicken company) or tysonsnow.com (but it turns out there is a pretty good artist named Tyson Snow and he already has it). So I’m stuck with http://tysonsnow.co, which, in my book, isn’t half bad. It is short. It is easy to remember. It’s my name. And it allows me to present the right amount of information in the exact way I want to present it.

While it may look fancy, it is nothing more than a simple WordPress site that turns out to be a great place to send people who may want to learn more about me. It is easy to add to emails, tweets, status updates, or anything else. It registers high in search results. And it is mine. All mine.

You can do the same thing by registering for a free WordPress or Blogspot account and setting it up in a similar manner. But the real value in this approach is being able to choose the domain name; if you are serious about it, setup your own site.

In sum: If you are looking for fast and free, use something ending with .me
But if .me isn’t enough for you, you can always do something similar to me.

How To Lay Foundation for the Admissibility E-Mail Evidence

The Federal District court for the Western District of New York recently provided a great summary of how to lay foundation for e-mails (as business records). Since e-mail evidence is a part of nearly of case these days, this information should prove helpful to all lawyers. In Beechwood Restorative Care Center v. Leeds, 856 F. Supp. 2d 580, 595-96 (W.D.N.Y.), the trial court set the record straight on e-mails as business records:Attribution 3.0 Unported (CC BY 3.0)

The Second Circuit has explained that:

Rule 801(d)(2)(D) of the Federal Rules of Evidence defines as nonhearsay a statement offered against a party that is “a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship.” In order to introduce evidence of an out-of-court statement as nonhearsay under Rule 801(d)(2)(D), a party must lay a sufficient foundation by establishing “(1) the existence of the agency relationship, (2) that the statement was made during the course of the relationship, and (3) that it relates to a matter within the scope of the agency.”

Marcic v. Reinauer Transp. Companies, 397 F.3d 120, 128–29 (2d Cir.2005) (quoting Pappas v. Middle Earth Condominium Ass’n, 963 F.2d 534, 537 (2d Cir.1992)). In addition, “admissibility under Rule 803(6) requires both that a [document] have been ‘kept in the course of a regularly conducted business activity’ and also that it was the ‘regular practice of that business activity to make the [document] ….’ ” United States v. Freidin, 849 F.2d 716, 719–20 (2d Cir.1988) (quoting Rule 803(6)).

Under both those rules, then, a proper foundation must be laid before a document can be admitted. Provided that plaintiffs can meet that foundational requirement at trial, these exhibits are not barred by the hearsay rule. See Penberg v. HealthBridge Mgmt., 823 F.Supp.2d 166, 187 (E.D.N.Y.2011) (“A party seeking to introduce an email made by an employee about a business matter under the hearsay exception under Rule 803(6) must show that the employer imposed a business duty to make and maintain such a record”) (quoting Canatxx Gas Storage Ltd. v. Silverhawk Capital Partners, LLC, No. H–06–1330, 2008 WL 1999234, at *12 (S.D.Tex. May 8, 2008)); Park W. Radiology v. CareCore Nat’l LLC, 675 F.Supp.2d 314, 333 (S.D.N.Y.2009) (“Though an email may satisfy the business records exception under appropriate circumstances, Plaintiffs do not show that the … emails qualify” because the “employees were not under an obligation to create the emails as a record of regularly conducted business activity.”).

This excerpt sets out most (if not all) of the arguments and legal authorities you will need to argue for or against the admissibility of e-mail evidence based on the business records exception to the hearsay rule. With foundation and admissibility issues frequently popping up with respect to admissibility of electronic evidence, hopefully this guidance from W.D.N.Y. will help save you some time and money in addressing these issues.

(Clip art credit: 177Designs)

Lawyers & Judges: Be Careful Who You Friend

An interesting appellate decision from Florida state court came out last week. The issue was whether a judge who was a Facebook friend with the prosecuting attorney should be disqualified because of the “friend” status. Applying a Florida Judicial Ethics Advisory Committee opinion, Florida’s Fourth District Court of Appeal held that the judge should be disqualified under Florida Code of Judicial Conduct Canon 2B (“A judge shall not … convey or permit others to convey the impression that they are in a special position to influence the judge.”)

In Domville v. State, — So.3d —-, 2012 WL 3826764 (Fla. App. 2012), the defendant moved to disqualify the trial court judge because of the judge and the prosecuting attorney were Facebook friends. Id. at *1 (“Petitioner Pierre Domville moved to disqualify the trial judge. The motion was supported by an affidavit averring that the prosecutor handling the case and the trial judge are Facebook ‘friends.’ This relationship caused Domville to believe that the judge could not ‘be fair and impartial.’”). The trial court denied the motion and Domville appealed.

The appellate court reversed the trial court and concluded that “[A] judge’s activity on a social networking site may undermine confidence in the judge’s neutrality. Judges must be vigilant in monitoring their public conduct so as to avoid situations that will compromise the appearance of impartiality.” Id. at *2. And since Domville had “alleged facts that would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial,” id., the appellate court reversed the trial court and disqualified the trial court judge.

I found the opinion interesting because I am “friends” with some judges in my jurisdiction. While those “friendships” were made prior to the judges becoming judges, it does raise an interesting concern. Should lawyers and judges be friends on Facebook? In Florida, the answer appears to be an emphatic no.

It is worth noting that the decision relied heavily on a Florida Judicial Ethics Advisory Committee opinion that concluded:

[T]he Florida Code of Judicial Conduct precludes a judge from both adding lawyers who appear before the judge as “friends” on a social networking site and allowing such lawyers to add the judge as their “friend.” The Committee determined that a judge’s listing of a lawyer as a “friend” on the judge’s social networking page-“[t]o the extent that such identification is available for any other person to view”-would violate Florida Code of Judicial Conduct Canon 2B.

The Committee further noted that Canon 2B is typically violated when the following factors are met:

1. The judge must establish the social networking page.

2. The site must afford the judge the right to accept or reject contacts or “friends” on the judge’s page, or denominate the judge as a “friend” on another member’s page.

3. The identity of the “friends” or contacts selected by the judge, and the judge’s having denominated himself or herself as a “friend” on another’s page must then be communicated to others.

Obviously, accepting a Facebook “friend” invite from a lawyer would trigger all of these factors, making it pretty clear that the practice should be avoided. The decision will have limited precedential effect outside of Florida, particularly where it swings on a state-based ethics opinion. But given that most states have judicial canons that prohibit judges from engaging in acts that may appear to affect their objectivity, I would not be surprised to see this issue raised with similar results in other jurisdictions.