Sunbelt Blog

Who’s Responsible for Libelous User Comments on Blogs and Web sites?

Anyone who runs a blog is likely aware of the user comments feature. When enabled, other users can comment on your blog posts. Allowing other users to comment on your blog has its pros and cons. For example, a blog post with lots of user comments and interaction is engaging and interactive. On the other hand, comment spam is problematic. Plus, what if a user says something controversial - or worse libelous? Who's responsible for libelous user comments on blogs and Web sites?

The obvious and common sense answer is "when in doubt, cut it out." However, if your blog's user comment settings are not moderated, or even if they are, you may not have noticed a libelous comment. Because the comment is posted on your blog, are you accountable?

In general, the federal Communications Decency Act protects sites and blogs from being held responsible for libelous comments by users. This act prohibits a "provider or user of an interactive computer service" from responsibility "as the publisher or speaker of any information provided by another information content provider."

Recently, a car dealer took on ConsumerAffairs.com, alleging that libelous comments appeared on the ConsumerAffairs.com Web site (Nemet Chevrolet v. ConsumerAffairs.com), arguing that ConsumerAffairs.com was the information content provider and therefore liable for the libelous comments. Nemet Chevrolet alleged that ConsumerAffairs.com solicited complaints, steered the complaints in such a manner as to attract attention from class action lawyers, contacted consumers to ask questions and help draft or revise the complaints, and suggested that financial recovery options were available via class action lawsuits.

Because of these allegations, the plaintiff argued that ConsumerAffairs.com was involved in developing the substance and content of the user comments. In short, the plaintiff argued that ConsumerAffairs.com was "responsible, in whole or in part, for the creation or development" of the user comments and was therefore a non-immune information content provider.

The plaintiff also alleged that eight of the 20 defamatory posts were fabricated by ConsumerAffairs.com because it could not identify the customers making the posts based on the information provided such as first name, date, or model of car.

The case was originally dismissed by a federal court in June 2008. On December 29, 2009, the 4th US Circuit Court of Appeals upheld the US District Court's earlier decision. In its Opinion, No. 08-2097, the appellate court said that, "Nemet fails to make any cognizable argument as to how a website operator who contacts a potential user with questions thus "develops" or "creates" the website content."

What about those eight fabricated posts? The opinion of the appellate court is that "This is pure speculation and a conclusory allegation of an element of the immunity claim. . . Nemet has not pled that Consumeraffairs.com created the allegedly defamatory eight posts based on any tangible fact, but solely because it (Nemet) can't find a similar name or vehicle of the time period in Nemet's business records." The opinion goes on to say that the posts could have been made anonymously, falsified by the consumer, or overlooked by Nemet.

If you run a law blog, do you allow comments? Do you monitor comments before allowing them to be posted? What are your thoughts on libelous blog posts?

How Safe is Your Data?

Remember when company data rarely left the corporate network? The files you created were stored on either your desktop computer's hard drive or on a server inside the building. Backups of these files were created on physical tape drives which were securely stored in fireproof boxes. Today, company data isn't neatly contained. Your firm's attorneys likely have laptops and PDAs. Your employees, especially telecommuters, may share data through online file sharing and collaboration sites like Google Documents. Employees may take files home on USB thumb drives. Your main server may backup data to an online data backup service. Technology has allowed your firm greater mobility; however, is your data safe and secure?

While corporate networks are not immune to security breaches, each piece of data that is stored outside of the company's network is vulnerable. What if an attorney's laptop is stolen? What if a telecommuter stores a file online and forgets to mark it "private"? What if an employee loses a USB thumb drive containing confidential files? What if the online storage provider's system is compromised?

Whenever you allow data outside of the corporate network, you lose control over it. This is a problem companies of all sizes and industries are grappling with. Of particular concern is data subject to confidentiality restrictions. While losing a document covering a staff meeting's agenda would be a short term problem, losing confidential data related to a pending case would be devastating. In addition, specific acts such as the Privacy Act of 1974, the Health Insurance Portability and Accountability Act (HIPAA), and the Gramm-Leach-Bliley Act, regulate how certain types of information can be transferred and stored.

Assuming that your firm's data is stored according to any applicable regulations, how safe is it? Is the data encrypted as it travels from one computer to the next? Are data backups encrypted when stored online? Is the physical building where your online data resides secure? Even with safeguards in place, online service providers can encounter problems. We've all heard of stolen laptops and major hacker attacks that have compromised credit card and social security numbers of millions of individuals. In addition, last March, Google discovered its Documents and Spreadsheets application had experienced a breach where some documents had been shared with unauthorized users.

So, what should you do? First, evaluate your firm's current data patterns. Where is data created? Where is it stored? How is it transmitted? How is it secured at all points? You may need to invest in technologies designed to secure mobile data or contract with regulation-compliant partners. If using online backup or collaboration services, you'll need to review all privacy policies to make sure that the provider has appropriate safeguards in place.

Once you have a better understanding of where your firm's data originates, how it is transmitted, and how it is stored along with a plan for securing any areas of weakness, consider creating a formal data policy. For example, is it okay for an attorney to take a USB drive home to work on files on her personal computer over the weekend? If so, is she allowed to save a local copy on her home PC? If so, what types of security measures should her personal computer have in place? As you draft your data policy, you'll run into even more questions like these, reinforcing the need for restricting and securing firm data.

Technology has made the mobile workforce a reality, bringing with it both benefits and new challenges. Recognizing that data is at risk is an important first step in ultimately securing it.

Arizona Sets Metadata Precedent

A recent Arizona Supreme Court ruling that government agencies must release an electronic document's metadata has made the news in the state and is likely to set a precedent as other states grapple with public records laws. The unanimous late-October ruling overturned an earlier Arizona Court of Appeals ruling saying that metadata is not a public record.

In the October 2009 Opinion, Justice W. Scott Bales wrote, "We today hold that if a public entity maintains a public record in an electronic format, then the electronic version, including any embedded metadata, is subject to disclosure under our public records laws."

Metadata, or "data about data," is hidden information embedded into electronic documents. One of the easiest ways to understand metadata is to open a typical Microsoft Word document. When you open the document, you see the document's text, right? Let's say that the document is a letter. You will see the date as well as the text of the letter on your computer screen. However, dates can easily be changed in a Word processor. How do you know if the date displayed is the date the letter was written? Metadata will tell you. You can check this yourself in Word 2007 by clicking on the Office button, clicking Prepare, and then clicking Properties. (In earlier versions of Word, go to File > Properties).

At first, basic metadata will appear including the author of the document and any user-generated entries such as comments, keywords, and title. Click on Document Properties > Advanced Properties and then click on the Statistics tab to view additional metadata. Now, you will see the document's creation date as well as dates when the document was modified, accessed, and printed.

In fact, the Arizona ruling stems from employment discrimination case where a demoted police officer requested public records, which happened to be his supervisor's notes, from the City of Phoenix, received paper copies of the records, and then suspected that the original notes had been backdated. The metadata of the original document could confirm or deny those suspicions, but the city denied the officer's request, citing an over 50-year-old Arizona Supreme Court ruling.

The case made its way up to the Arizona Supreme Court which finally overturned the Court of Appeals ruling that the City of Phoenix did not need to provide the electronic record's metadata.
Justice Bales wrote, "The metadata in an electronic document is part of the underlying document; it does not stand on its own. When a public officer uses a computer to make a public record, the metadata forms part of the document as much as the words on the page. . ."

The issue of electronic documents and their underlying metadata isn't unique to Arizona. Arizona's opinion that metadata is part of the underlying document certainly gives us something to think about. Your thoughts? Will this ruling influence other public record laws across the United States? Should a document's creation date, modification date, print date, and other hidden data be disclosed along with the words on the page?

The Legal Pad Goes High Tech

Still taking notes on a legal pad? While The trusty legal pad has its place, transcribing your notes is tedious and time consuming. Digital pens are changing the way many professionals take notes. These gizmos store your written text within the pen. Simply take notes, draw diagrams, or even record audio (if equipped) and then transfer the notes to your computer. Once transferred, your notes and drawings can be stored or shared with others. Depending on the type of pen you have, you can convert your written notes to text and import the text into a word processor.

Digital pens are certainly neat, but how might you put your pen to good use in your practice? After all, you already have computers, audio recorders, and PDAs. However, it's not always practical to lug a laptop into meetings and audio recorders are often challenging to find nuggets of information. Equipped with an audio-capable digital pen such as the LiveScribe SmartPulse, you can take notes while recording audio. Once recorded, simply tap a word on the page and hear the recording at that point in time.

Digital pens are terrific for those times when a computer is either inconvenient or inappropriate. For example, when meeting with a potential client for the first time, storing your notes on a laptop puts a barrier between you and the client. Instead, imagine jotting down notes on a simple legal pad as normal. Only in this case, you'll later be able to transfer your notes to your computer and convert them to text! If your digital pen has audio, you can also record the session, marking crucial information with an audio bookmark on the page. For instance, when you ask the client, "What happened?" write down the words "What happened" on the page. When the client is discussing her medical bills, write down the words "medical bills" on the page. Later, when you need to review your notes, tap the words on the page related to what you need to review and hear the audio.

Another excellent use of digital pens is for diagramming. Imagine drawing a diagram of an accident scene and knowing that your diagram has been digitized. Later you can upload your drawing to your computer and share digital copies with your partners, client, and other parties via email.

Some digial pens allow you to write directly on computer images, working much like graphic tablets. When giving a giving a presentation, this type of digital pen allows you to draw images, write text, or otherwise emphasize key points onscreen.

While the possibilities may capture your imagination, digital pens are not created equal. Some require special paper while others work beautifully with a standard legal pad. Some come with handwriting recognition software; others do not. Some digital pens record audio; most do not. Most digital pens connect to a computer via a USB connection though Bluetooth connectivity is starting to become more readily available.

Before you purchase a digital pen, consider how you will use it in your practice. Do you want to combine text with audio recordings? Do you need handwriting recognition or are digital copies of your written notes sufficient? Do you want to be able to write on any type of paper or are you okay with purchasing specialty legal pads? If possible, demo a unit before you buy because each digital pen has its pros and cons. For example, pens that require special paper are far more accurate than those that use plain paper because the special paper uses a sophisticated grid and infrared camera to digitize your pen strokes. The plain paper pens digitize your pen strokes through the use of a transmitter and receiver. If the reciever is bumped, the electronic writing area is also bumped which can cause lines of text or graphic drawings to be distorted compared to the original.

The legal pad has gone high tech. How will you put this technology to use in your practice? Share your ideas with us!

A Law Library in the Palm of Your Hands?

Amazon's Kindle, Sony's Reader, and now Apple's iPad have captured the imaginations of booklovers around the globe. Have they captured yours? While having access to millions of eBooks at your fingertips may make you want to curl up on the couch with a mug of hot chocolate for a few hours of escapism, these eReaders have practical applications as well. Imagine having an entire law library in the palm of your hands!

A quick look at Amazon's Kindle Store displays the store's bestsellers. Enter the term "law books" into the search box and you'll find a large selection of law books covering constitutional law, civil rights, general law, and human rights. If you drill down a little deeper, you'll soon find The Dispute Resolution Law Book Store where you'll find law books and legal guides both in print as well as for wireless delivery to the Kindle. Categories include: U.S. Law Books, International, Arbitration, Mediation, Paralegal, Ombudsman, Conflict Resolution, Self-Help Guides, Legal Forms, Student Textbooks, Bar Exam Guides, Kindle eBooks, Divorce Books, and Estate Planning.

Not to be outdone, Sony's eBook store is also loaded with law books with categories that include: business law, civil law, criminal law, family law, general law, government, legal reference, and property and tax. In addition, Sony's eReaders can connect to your local public library where you'll be able to browse for compatible digital law books that you can checkout and download. Sony also offers a huge library of public domain books in conjunction with Google Book Search.

Apple's iPad, a tablet computer-like device that also doubles as an eBook reader, has not yet hit the market. However, it will feature an online bookstore just as Amazon and Sony have created. The iBookstore will feature downloadable eBooks and it is presumed that some of them will fall under the law books category.

Each of the three big players in the eBook industry uses a different platform. For example, Kindle eBooks are compatible only with the Kindle and devices equipped with Amazon's software. Sony uses Adobe software which has been embraced by booksellers and public libraries as well. Recent reports indicate that Apple's iPad will use yet a third format for its digital books.

While you can certainly find law books available in Amazon and Sony's digital marketplaces, other sources of digital books exist. For example, Lincoln Memorial University's Carnegie-Vincent Library features access to law-specific eBooks and eBook journals. Among the digital collections available to students: AudioCase Files, BNA's Core Collection, CALI (Computer Assisted Legal Instruction), eBrary, FastCase, Gale Digital Libraries, Google Scholar, Hein Online, Index to Legal Periodicals 1908-1981, Lexis Congressional, LexisNexis, NetLibrary, and WestLaw. This is but one example of a university library making access to digital information a simple matter of signing in.

If you're interested in eBook readers, check with your alma mater's library and see what types of digital law books are available to you and which formats are most prevalent before you buy a reader. Next, explore the eBook stores from Amazon, Sony, and Apple to get a feel for the availability of law books in your practice area. Finally, consider how you will access and download the eBooks, journals, and periodicals. Is wireless access a must? While the Kindle has always had wireless capabilities, Sony has finally introduced a wireless Reader.

It took a few years for eBooks to capture the imagination of booklovers. Now that the technology is in place, have e-law books captured your imagination?

How Secure are Your Emails

When we send an email, whether it's to a friend, colleague, or client, we expect that the email will arrive, uncompromised, to the intended recipient. We also expect that the email will not be redistributed to others without our consent. However, once we hit the send button, the message is largely out of our control. Will it arrive as intended? Will hackers intercept the message? Will the recipient keep the message to himself? How secure are your emails? How can you be sure that your message won't be altered and recirculated? How can you maintain data integrity and confidentiality?

It's becoming increasingly common for individuals to append a confidentiality clause or disclaimer to messages. An example of such a clause is:
"Any information contained in or attached to this e-mail is intended solely for the use of the intended recipient(s) and may contain information that is confidential or legally privileged. If you are not an intended recipient of this e-mail, please notify the sender of the delivery error and then please delete and destroy all copies and attachments, and be advised that any review or dissemination of, or the taking of any action in reliance on, the information contained in or attached to this e-mail is expressly prohibited."

While it's smart to include such a disclaimer, it's even smarter to use digital signatures and digital encryption tools to protect your confidential e-mail messages. In fact, depending on the nature of the email message or regulations governing your firm, your messages may need to be encrypted in order to comply with regulations such as HIPAA, SOX, or GLBA.

Various technologies are used to encrypt email messages and digitally sign messages. Regardless of which technology your firm uses, the idea is that an encrypted message can only be viewed by those holding the "keys" to unlock it. An encrypted message is scrambled before being transmitted. Your recipient must have the "key" in order to unscramble the message. This is usually done through the use of digital IDs which verify an individual's identity through a third party vendor. Once each individual has obtained a digital ID, they send each other digitally signed messages which add the individual's digital ID to the contact's information in the email program. These digital IDs are also known as "public keys" and can be shared with the general public.

Sharing each other's "pubic keys" may not sound terribly secure. However, the public key is only half of the equation. When you want to send an encrypted email to a person with a digital ID or public key, you would use the provided digital ID or public key to encrypt it. The individual holds a second key, which is never shared, that deciphers the message. In general, the keys are set up on the individual's computer in their email programs and a pass phrase used to open the message.

Once the digital identities have been established, it becomes possible to send encrypted messages to one another. This ensures that your message is only viewable by the intended recipient. If a system administrator stumbles onto the e-mail in the system, the administrator cannot view it. If a hacker intercepts the message, he cannot open it. If a co-worker sneaks into your office, she cannot open the message unless she knows your secret pass phrase.

Adding a digital signature to your emails is also an excellent way to establish that the email is really from you and not from an imposter. For example, if you're concerned that someone might set up an email account in your name and then pose as you, start digitally signing your messages to establish which emails are definitely originating from you and which ones are questionable. Likewise, receiving digitally signed e-mail messages from your colleagues and clients ensures that what you are receiving originated with those individuals.

Encrypting and digitally signing messages is a bit clumsy to set up at first but well worth doing to ensure data integrity and confidentiality.

Twitter Identity Theft, Parodies, and Copyright Infringement

Identity theft, parodies, and copyright infringement have quickly made their way into the Twitterverse, bringing with them legal implications and cause for concern. Not only does Twitter, and social media sites in general, make it possible for imposters to spread misinformation or damage reputations, companies are concerned with their intellectual property and logos.

Sports stars and celebrities have been concerned with Twitter identity theft for a while now. After all, anyone can create a Twitter user account and pretend to be whoever they want. For example, go into Twitter and enter "Oprah" into the Find People link and you'll see a slew of wannabe Oprahs including the real "Twitter verified" Oprah (@oprah) as well as users who are clearly imposters with name variations, assorted punctuation marks, and misspellings. Most use pictures of Oprah as their avatars. And it works. Some of these imposters have tens of thousands of followers!

So, what's wrong with creating a fake celebrity account and pretending to be the celebrity in question? What's wrong with using someone else's image as an avatar and then tweeting as if you were that person? These are rhetorical questions as we all know that doing so is wrong. But a question of right or wrong doesn't bother Twitter identity thieves. And they don't only target well-known celebrities. Baseball coaches, newspaper reporters, and students have all been victims of social media identity theft. Whether the intent is "a joke" or outright cyberbullying, Twitter imposters have caused harm to their victims.

Twitter has been experimenting with a "verification" feature to let users know if a Twitter user is really who that user says he is. Currently, this feature is used on a case-by-case basis, primarily for prominent users such as celebrities and politicians.

On the other hand, parody accounts are allowed on Twitter. Twitter's impersonation policy states the following:
"Impersonation is pretending to be another person or business as entertainment or in order to deceive. Non-parody impersonation is a violation of the Twitter Rules.

The standard for defining parody is "would a reasonable person be aware that it's a joke?" An account may be guilty of impersonation if it confuses or misleads others-accounts with the clear INTENT to confuse or mislead may be permanently suspended."

The twitter account "@jackbauer" parodies Jack Bauer of Fox's hit show, 24. The account's bio says, "If everyone listened to my instructions, it'd be called '12'." Does anyone believe that a television character is really tweeting? Not likely. Is there an intent to confuse or mislead? Not likely. This is an example of a parody account. It's a joke account that is allowed under Twitter's impersonation policy.

Just as impersonation and parody are separate, yet closely related, so are parody and copyright infringement. One of the tests between parody and infringement is whether the parody is clever enough to avoid confusion as to whether it is the original or a spoof.

Companies and individuals have filed lawsuits against Twitter for copyright infringement and identity theft. According to the Connecticut Law Tribune, Oneok, a natural gas distributor, alleged trademark infringement against Twitter after discovering an anonymous user using the user name "Oneok_i" along with the Oneok logo. The lawsuit was later withdrawn after Twitter closed the other account. Another lawsuit, filed by Tony LaRussa, baseball manager of the St. Louis Cardinals, was filed when LaRussa discovered an imposter who was tweeting using his identity. The account was suspended and the lawsuit withdrawn.

Impersonation, parodies, and copyright infringement are likely to continue as Twitter grows. While the medium is relatively new, these issues are not. Your thoughts? We'd love to get the discussion going.

Social Media and Legal Eagles – Should You Jump In?

LinkedIn, Twitter, Facebook, blogging, and other forms of social media are extremely popular with people from all walks of life including professionals. But what about lawyers, paralegals, litigation support managers, and legal secretaries? Should you jump in? Before you start tweeting about your piles of paperwork and what you had for breakfast, consider what you can bring to social media as well as what you can get out of it.

Your Professional Persona
No matter which social media platform you choose, as a legal professional, it's crucial that you pay close attention to your professional persona. While many bloggers and tweeters may go off topic or rant and rave about something, you are not a traditional blogger or tweeter. Keep your professional persona in mind with every word you type.

Your Area of Expertise
Next, center your social media conversations on your specific area of expertise and begin building a community around your platform. For example, if you specialize in estate planning, blogging about DUI laws is outside your area of expertise. Your followers are expecting helpful estate planning tips, not news about DUI laws. Think of about three core topics within your area of expertise and rotate your content based on these areas. For an estate planning blog, you might write about wills and trusts one week, health care directives the next, and probate issues the next week before tackling another will and trust issue and repeating the cycle. Over time, you will become recognized for your expertise in your chosen area.

Your Personality
While it's not advisable to tweet about what you ate for lunch, the occasional personal blog post or tweet shows that you are a real person, not a walking law book. Use care when posting personal entries and keep your professional persona in mind when you do. For example, which of the following personal tweets would be appropriate:
"Looking forward to reading Making Your Case: The Art of Persuading Judges."
"I think Oprah should avoid wearing red and should stick to less flashy colors."

What Can Social Media Do for You?
Certainly, you have a lot to contribute to social media. However, social media isn't a one-way outlet where you broadcast information to the masses. As you get involved in social media, you'll quickly discover that social media has many advantages including:

• Networking - You will be interacting with others, many of whom may be colleagues. As you share information through your blog, Facebook page, or Twitter, you will also be gaining information from others. This exchange of information gradually builds a community of like-minded individuals.
• Improve Communications Skills - Blogging and posting comments on social media sites forces you to brush up on your writing skills. Blogs and social media sites are not the place for legalese and academic writing. Instead, you must write concise, easy-to-understand entries.
• Give Your Firm a Face - If you are blogging on behalf of your law firm, you are becoming more approachable. Your potential clients may check your Facebook profile long before they make the first call for a consultation. By being mindful of your professional persona and focusing your social media efforts on your area of expertise, you will stand out as an approachable legal professional with the expertise the client needs.

Social media is a terrific tool for professionals from all industries when used appropriately. Keep your professional persona in mind at all times and frame yourself as an approachable expert. As you build your community and interact with others, you may realize another key advantage: new clients.

Pitfalls of Offshore Legal Transcription

The offshore transcription offers come flooding in, promising professional legal transcription services at the fraction of the cost that you are used to paying. But should you use an offshore transcription company? While the cost savings are certainly attractive, outsourcing your legal transcription projects and placing your trust in a company located on the other side of the global has its pitfalls. Before you agree to an offshore transcription arrangement consider the downsides including lack of control over your data's integrity and security, language barriers, reliability, accuracy, and accountability.

Whenever you release data, its integrity is at risk. What types of internal controls and security measures has the offshore legal transcription service put in place to ensure that your confidential data remains uncompromised? How is the data transmitted to and from the transcriber? Is it encrypted? Are the transcription company's computers secure? What is the transcription company's privacy policy? Does the service handle the transcriptions in a secure facility or does it use work-at-home transcribers? These are but a few of the many questions that you must be concerned with when you outsource transcription, whether the transcriber is located across the street or in another continent. While an offshore legal transcription company may have a professional looking Web site with professional looking photos, unless you can visit the facilities in person, verification is difficult.

Language barriers are also of concern. The English language with all of its nuances is difficult enough for non-native speakers to master and transcribe accurately. Add in complex legal terms and the potential for transcription errors grows. Even if the final transcribed product is technically acceptable, language barriers can lead to other misunderstandings such as expectations and due dates.

Closely related is the issue of accuracy. How accurate are the transcription services offered? Will your final documents be free of errors or will you need to spend additional time correcting errors?

What about ethics? Are the offshore stenographers certified as legal transcribers or court reporters? Do they adhere to a code of ethics comparable to the same ethical standards expected of onshore transcribers?

A good legal transcription service, local or otherwise, must be reliable and accurate as well as secure and dedicated to protecting the integrity and confidentiality of your data. You need to know that the job will be done promptly, correctly, accurately, and on time - every time. Will an offshore legal transcription company be as reliable as a local one? Possibly. However, it's important to understand how the service you are considering operates. Is the service a small company with one or two transcribers? Is it a large company, operating much like a call center with hundreds of transcribers working on projects as they come in? If multiple transcribers are involved, will your law office be assigned its own transcriber? Can you request transcribers that have performed well for you in the past?

Finally, what happens when a problem occurs? Will you get the runaround or will the company step up and be accountable? What mechanisms are in place to confirm that your data has been received and is being processed? How will you be informed if there's a delay, or worse, a security breach?

While many of these same considerations exist when hiring a local legal transcriptionist, distance and language barriers tend to magnify the issues. Privacy laws and ethical standards also vary from one country to the next, making the question of security, confidentiality, and data integrity a major consideration.

Law Professionals as Facebook Friends – Is it Legal? Is it Ethical?

An Associated Press article, Florida judges, lawyers must ‘unfriend' on Facebook, published on Saturday, December 12th, brought up an interesting topic: How ethical is friending for the legal profession? While the article discussed friending between lawyers and judges, another ethical consideration involves covert friending of witnesses and litigants. Whether you're using social networking to connect with your colleagues and peers or to gather information, you're in relatively uncharted territory.

Friending other Law Professionals
The AP article covered a November 17th ruling by Florida's Judicial Ethics Advisory Committee suggesting that online friendships, such as Facebook "friends" and "fans" between lawyers and judges could create an impression that lawyer friends may influence judge friends. An argument against the ruling brought up the point that the relationships are more like contacts and acquaintances.

The ruling specifically mentioned Facebook, extrapolating that it applies to other social networking sites. For example, the opinion said, ". . . the holding of the opinion would apply to any social networking site which requires the member of the site to approve the listing of a 'friend' or contact on the member's site."

The Judicial Ethics Advisor Committee concluded that it's okay for judges to interact with other judges and that lawyers can become "fans" of judicial election campaigns during elections. The overall tone of the ruling is that of caution. The article brought up these points:

• Judges and lawyers friending each other online can cause others to wonder if the lawyer will receive special treatment in the courtroom because of the online friendship.
• While judges and lawyers can certainly be friends, a public display may create an impression of impropriety amongst the public.

Friending Witnesses and Litigants
In addition to the controversy of friending judges, is that of friending witnesses and litigants. While it's unlikely that a lawyer would "friend" a witness, what about doing so covertly to discover evidence? What if a witness had a private Facebook profile that you wanted to explore? Is it ethical to friend the witness? What about having someone unknown to the witness become a "friend"?

The Philadelphia Bar Association Professional Guidance Committee published an opinion in March 2009 covering these behaviors. Several Pennsylvania Rules of Conduct were implicated in an inquiry about having a third party friend a witness covertly including:
• Rule 5.3 - Responsibilities Regarding Non-Lawyer Assistants
• Rule 8.4 - Misconduct
• Rule 4.1 - Truthfulness in Statements to Others

Rule 5.3 states the following:
With respect to a non-lawyer employed or retained by or associated with a lawyer: ...
(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:
(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; ...

Rule 8.4 states that:
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; ...
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; ...

Rule 4.1 states that:
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; ...

The opinion goes on to cover even more rule violations and discuss rulings covering the reach of rule 8.4. However, the above three rules provide sufficient guidance to make an informed, ethical decision.

What are your thoughts? Do you have online friends in high places? Is social networking addressed in your law firm?