Tag Archives: twitter

Judge’s Use of Electronic Social Networking Media

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Judge’s Use of Electronic Social Networking Media – ABA Formal Opinion 462:

“A judge may participate in electronic social networking, but as with all social relationships and contacts, a judge must comply with relevant provisions of the Code of Judicial Conduct and avoid any conduct that would undermine the judge’s independence, integrity, or impartiality, or create an appearance of impropriety.“ 

aba-20427According to Formal Opinion 462 [PDF] of the American Bar Association,  published on February 21, 2013. Surely, this formal opinion, which refers to Electronic Social Media (“ESM”), has been in the works for a long time. It is, however, at odds with a recent Florida decision I previously discussed. In that case a Florida appellate court held that a judge should have recused himself because he was a Facebook “friend” of an attorney appearing in the matter: Lawyers & Judges: Be Careful Who You Friend.

Domville v. State, — So.3d —-, 2012 WL 3826764 (Fla. App. 2012).

As indicated in that post, the Florida Supreme Court was going to take up the issue but with this recent opinion from the ABA, it may now be moot. I imagine the Florida Supreme Court will cite to this opinion and rely on the relevant Rules of Judicial Conduct in acknowledging that social media “relationships” are not problematic so long as they do not undermine or bring into question the judge’s appearance of impartiality.

The formal “Judge’s Use of Electronic Social Networking Media” Opinion will likely clear up this issue that has previously been addressed in piecemeal fashion by various state bar organizations.

Here are a couple of comments from the Opinion I found interesting:

  • A judge who participates in ESM should be mindful of relevant provisions of the Model Code. For example, while sharing comments, photographs, and other information, a judge must keep in mind the requirements of Rule 1.2 that call upon the judge to act in a manner that promotes public confidence in the judiciary, as previously discussed.
  • The judge should not form relationships with persons or organizations that may violate Rule 2.4(C) by conveying an impression that these persons or organizations are in a position to influence the judge.
  • A judge who has an ESM connection with a lawyer or party who has a pending or impending matter before the court must evaluate that ESM connection to determine whether the judge should disclose the relationship prior to, or at the initial appearance of the person before the court.
  • [However] Because of the open and casual nature of ESM communication, a judge will seldom have an affirmative duty to disclose an ESM connection.
  • [But] a judge should disclose on the record information the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification even if the judge believes there is no basis for the disqualification.

The opinion goes on to discuss a judge’s use of social media in running a judicial campaign. I am adamantly opposed to judicial elections. So, if you live in a jurisdiction where you elect judges during election cycles or if you are a judge who has to campaign for your position, you can read the opinion to determine what you can and cannot do.

Free prize to anyone who sends me a transcript or an order / opinion that includes a judgment disclosing an ESM connection with one or more lawyers involved. I have numerous judges as social media friends. Maybe I can be the first!

How to Be an Effective Tweeter: A Twitter Checklist

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For those of you who don’t read Legal Productivity, what is wrong with you? It is a great blog with great information. A recent post caught my attention: Effective Tweeting: A Twitter Checklist. I suggest you go read the whole article, including the explanations behind each of the items in the checklist (there are tips and tricks you won’t want to miss). In the meantime, here is the “checklist” for quick reference:

Twitter Tips and Tricks

  • Tweet when your followers are around
  • Tweet frequency
  • Retweet
  • Tweet great content
  • Give attribution
  • Engage
  • It’s okay to schedule posts
  • Optimize your Twitter bio
  • Create Twitter lists

All of those are good suggestions. If you are only going to follow one, make sure it is “Tweet great content.” When it comes to lawyers and other legal professionals (or any professionals), the most important thing you can do is tweet out great content (and then engage with those who ask questions about your great content). This is one of the fundamental keys to successfully using Twitter.

I’ve offered up on my thoughts on how to effectively use Twitter in various other articles. For example, I previous posted: More Twitter Tips for Lawyers, which links to the following tips:

  • Length. Although you get 140 characters for your beautiful prose, make sure your tweets are sufficiently short that they can be re-tweeted without having to be revised by the re-tweeter. (Remember that RT @[Your Name] will / should be added.) Keep your tweets short enough that they can be re-tweeted in their entirety.
  • Attribution. If you tweet about another’s article or post (which is basically what all of us always do), take the time to find out that person’s Twitter handle and include it in the tweet. Not only will the attribution be appreciated, but you are also likely to pick up a new follower or get a mention by the person you’ve acknowledged. Use this to help build your network.
  • Adding Substance. I’ll admit that I am guilty of not always following this tip. But we should all be better at adding a little commentary on our tweets and re-tweets. Include a brief statement of why you are sending the tweet out. It can be as simple as “Found this interesting:” followed by the title of the article or post. Too frequently, I see tweets (and send tweets) that have nothing more than the title of a post and a link. Take time to offer up a few words explaining why your followers should be interested in what you are sending.
  • Frequency. Except in extreme circumstances, I would not worry about tweeting too often. I know there are many who disagree with this and suggest you purposefully refrain from flooding the twitterstream too frequently. But I don’t see it as a significant problem, especially when you are sending helpful information. Even with re-tweets–don’t hesitate to send out five re-tweets in a matter of minutes, assuming of course
    , that all five are worthy of being re-tweeted.
  • Repetition. When you publish a new blog post, article, or something similar, you most certainly will send notice of it to your Twitter followers. But remember that not all your followers are paying attention to their streams at the same time. Some may say it is bad form, but feel free to tweet about the post or article several times (at different times of the day) so that your followers won’t miss it.

Note that many of the tips overlap. That is not surprising. As you implement this tips, you should find that your experience, your engagement, and the overall impact you are having via Twitter increases dramatically.

Time to Update Your Social Media Policies – New on Lawyernomics

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As we enter Autumn, I suggest you take a look at my recent post on Avvo’s Lawyernomics blog. The title of the post is “NLRB: Time to Update Your Social Media Polices (Again?)” and it addresses new guidance from the National Labor Relations Board on social media policies. The field of social media policies is ever changing and employers need to stay abreast of these changes, particularly the issues identified by the NLRB.

Give the post a read and then go edit your social media policies (again)!

Update: Twitter Concedes and Allows Subpoena of User’s Tweets

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You may recall a recent post on this blog entitled: Subpoena Twitter Accounts – New York Court Says “Yes!”. In that lengthy post, I described the procedural history of People v. Harris, Case No. 2011NY080152, 2012 WL 1381238 (N.Y Crim Ct. Apr. 20, 2012), in which the court denied the defendant’s attempt to quash a subpoena on grounds that: (1) defendant did not have standing for the motion to quash because criminal defendants (in New York at least) do not have standing to quash a subpoena issued to a third party (the court analogized to prior rulings regarding subpoenas to banks); and (2) the defendant didn’t have the right to “intervene” in the action between the government and Twitter in order to challenge the subpoena. With that in mind, here are the more interesting aspects of the decision.

Well, ultimately, the trial court refused to quash the subpoena and ordered Twitter to turn over the relevant tweets. Twitter and the defendant appealed but, despite pending appeals, on Friday Twitter handed over an Occupy Wall Street protestor’s tweets to a New York criminal court judge. This comes after months of attempts by the social networking company to fight the subpoena from prosecutors by claiming that that micro-blog posts were private conversations. So it appears that the dispute over the subpoena has now ended. In case you don’t recall all of the issues at play, re-read my prior post. Here are a few of the highlights.

***

In case you don’t recall the case, New York had subpoenaed particular tweets of an individual who had participated in the Occupy Wall Street protests. The government subpoenaed all tweets from 9/15/11 to 12/31/11 and the associated email address for the @destructuremal account. Twitter informed @destructuremal, who vowed to fight the subpoena and Twitter told the government it would not comply until @destructuremal’s challenge had been resolved.

The trial court, relying heavily on Twitter’s Terms of Service (“TOS”), recognized that “checking the box” was sufficient to invoke the terms:

In order to sign up to be able to use Twitter’s services, you must click on a button below a text box that displays Twitter’s Terms of Service (“Terms”). (See https://twitter.com/signup). By clicking on a button on the registration web page, you are agreeing to all of Twitter’s Terms, including the Privacy Policy (see https://twitter.com/privacy). The Privacy Policy informs users about the information that Twitter collects upon registration of an account and also whenever a user uses Twitter’s services.

The court disregarded the “reasonable expectation of privacy” argument.” This court finds that defendant’s contention that he has privacy interests in his Tweets to be understandable, but without merit. Part of the Terms agreement reads: “The Content you submit, post, or display will be able to be viewed by other users of the Services and through third party services and websites. The size of the potential viewing audience and the time it can take to reach that audience is also no secret, as the Terms go on to disclose: What you say on Twitter may be viewed all around the world instantly … [t]his license is you authorizing us to make your Tweets available to the rest of the world and to let others do the same.”

The Take-Away: Twitter has seemingly conceded the arguments that the defendant had no proprietary interest in his Tweets and that, based on Twitter’s TOS, “the Tweets the defendant posted were not his.” By dismissing its appeals, Twitter also seemingly recognized that the defendant had no reasonable expectation of privacy in his Tweets.

There you have it. If you were waiting to subpoena Twitter while this appeal got sorted out, your wait is over. Maybe Twitter was looking for better facts for its appeal or maybe Twitter has recognized that it is unlikely to prevail in objecting to subpoenas.

 

 

Social Media Policy for Employers – NLRB Says This One Works

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You may have read that the NLRB recently released its third publication addressing social media policies and their “lawfulness” under the NLRA (specifically, whether the policy has a chilling effect on protected union activities such as concerted efforts related to complaining about work conditions, etc.). In what is styled as the: “Acting General Counsel releases report on employer social media policies,” the NLRB has taken yet another step to bring itself to the forefront of social media policy related issues.

You may also know that I am in the throws of a two-week jury trial and have not had much time to post recently. I have some fairly strong opinions about the NLRB’s latest publication. But that is for another post. I already link to several resources where you can find form or sample social media policies for employers. Well, now the NLRB has given its stamp of approval to one (shocking, I know). While I let my emotions subside over the NLRB’s stance on social media policies in general, consider the following, which the NLRB approved in its entirety (yes, I realize I am a little late to the game with this post):

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Social Media Policy

Updated: May 4, 2012
At [Employer], we understand that social media can be a fun and rewarding way to share your life and opinions with family, friends and co-workers around the world. However, use of social media also presents certain risks and carries with it certain responsibilities. To assist you in making responsible decisions about your use of social media, we have established these guidelines for appropriate use of social media.

This policy applies to all associates who work for [Employer], or one of its subsidiary companies in the United States ([Employer]). Managers and supervisors should use the supplemental Social Media Management Guidelines for additional guidance in administering the policy.

GUIDELINES
In the rapidly expanding world of electronic communication, social media can mean many things. Social media includes all means of communicating or posting  information or content of any sort on the Internet, including to your own or someone else’s web log or blog, journal or diary, personal web site, social networking or affinity web site, web bulletin board or a chat room, whether or not associated or affiliated with [Employer], as well as any other form of electronic communication.

The same principles and guidelines found in [Employer] policies and three basic beliefs apply to your activities online. Ultimately, you are solely responsible for what you post online. Before creating online content, consider some of the risks and rewards that are involved. Keep in mind that any of your conduct that adversely affects your job performance, the performance of fellow associates or otherwise adversely affects members, customers, suppliers, people who work on behalf of [Employer] or [Employer’s] legitimate business interests may result in disciplinary action up to and including termination.

Know and follow the rules
Carefully read these guidelines, the [Employer] Statement of Ethics Policy, the [Employer] Information Policy and the Discrimination & Harassment Prevention Policy, and ensure your postings are consistent with these policies. Inappropriate postings that may include discriminatory remarks, harassment, and threats of violence or similar inappropriate or unlawful conduct will not be tolerated and may subject you to disciplinary action up to and including termination.

Be respectful
Always be fair and courteous to fellow associates, customers, members, suppliers or people who work on behalf of [Employer]. Also, keep in mind that you are more likely to resolved work-related complaints by speaking directly with your co-workers or by utilizing our Open Door Policy than by posting complaints to a social media outlet. Nevertheless, if you decide to post complaints or criticism, avoid using statements, photographs, video or audio that reasonably could be viewed as malicious, obscene, threatening or intimidating, that disparage customers, members, associates or suppliers, or that might constitute harassment or bullying.

Examples of such conduct might include offensive posts meant to intentionally harm someone’s reputation or posts that could contribute to a hostile work environment on the basis of race, sex, disability, religion or any other status protected by law or company policy.

Be honest and accurate
Make sure you are always honest and accurate when posting information or news, and if you make a mistake, correct it quickly. Be open about any previous posts you have altered. Remember that the Internet archives almost everything; therefore, even deleted postings can be searched. Never post any information or rumors that you know to be false about [Employer], fellow associates, members, customers, suppliers, people working on behalf of [Employer] or competitors.

Post only appropriate and respectful content

  • Maintain the confidentiality of [Employer] trade secrets and private or confidential information. Trades secrets may include information regarding the development of systems, processes, products, know-how and technology. Do not post internal reports, policies, procedures or other internal business-related confidential communications.
  • Respect financial disclosure laws. It is illegal to communicate or give a “tip” on inside information to others so that they may buy or sell stocks or securities. Such online conduct may also violate the Insider Trading Policy.
  • Do not create a link from your blog, website or other social networking site to a [Employer] website without identifying yourself as a [Employer] associate.
  • Express only your personal opinions. Never represent yourself as a spokesperson for [Employer]. If [Employer] is a subject of the content you are creating, be clear and open about the fact that you are an associate and make it clear that your views do not represent those of [Employer], fellow associates, members, customers, suppliers or people working on behalf of [Employer]. If you do publish a blog or post online related to the work you do or subjects associated with [Employer], make it clear that you are not speaking on behalf of [Employer]. It is best to include a disclaimer such as “The postings on this site are my own and do not necessarily reflect the views of [Employer].”

Using social media at work
Refrain from using social media while on work time or on equipment we provide, unless it is work-related as authorized by your manager or consistent with the Company Equipment Policy. Do not use [Employer] email addresses to register on social networks, blogs or other online tools utilized for personal use.
Retaliation is prohibited [Employer] prohibits taking negative action against any associate for reporting a possible deviation from this policy or for cooperating in an investigation. Any associate who retaliates against another associate for reporting a possible deviation from this policy or for cooperating in an investigation will be subject to disciplinary action, up to and including termination.

Media contacts
Associates should not speak to the media on [Employer’s] behalf without contacting the Corporate Affairs Department. All media inquiries should be directed to them.
For more information If you have questions or need further guidance, please contact your HR representative.

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And there you have it. A valid, enforceable social media policy from the NLRB. Stay tuned for my scathing remarks on the remainder of MEMORANDUM OM 12-59 and its criticism of basically every social media policy currently in existence. Once trial is over, I will let you know how I really feel about the NLRB’s position on social media governance and employer rights.

But, until then, hopefully this post will help raise some compliance issues that you can address and implement.