EVIDENTIARY LAW OF TOMORROW, TODAY!

Juries & Social Media (Ethics)

1:30pm-2:30pm, 1 Ethics CLE Credit Hour

Speakers:

Judge John W. deGravelles; U.S. District Court Middle District of Louisiana; Baton

Rouge, LA

Professor Dane S. Ciolino; Loyola New Orleans College of Law; New Orleans, LA

Professor Michelle Ghetti; Deputy Solicitor General, Louisiana Dept. of Justice;

Southern University Law Center; Baton Rouge, LA

Judge John W. deGravelles; U.S. District Court Middle District of Louisiana; Baton

Rouge, LA

John W. deGravelles currently serves as judge on the United States District Court for the Middle

District of Louisiana. He received his BA degree from Louisiana State University in 1971 and

graduated from Louisiana State University Law School with honors (Order of the Coif) in 1974.

deGravelles has been a member of the Adjunct Faculty at the Paul M. Hebert Law Center since

1994 where he currently teaches Federal Courts. He has been a regular faculty member of Tulane

Law School’s Summer Session in Rhodes, Greece since 1993, teaching Maritime Torts. In 2001,

he was awarded a Fulbright Teaching Scholarship to teach American Maritime Private

International Law at the Aristotle University of Thessaloniki Law School in Thessaloniki,

Greece.

Professor Dane S. Ciolino; Loyola New Orleans College of Law; New Orleans, LA

Dane S. Ciolino serves as the Alvin R. Christovich Distinguished Professor of Law at Loyola

University New Orleans College of Law. His current scholarly and teaching interests at Loyola

include Professional Responsibility, Evidence, Advocacy, and Criminal Law.

Professor Ciolino graduated cum laude from Rhodes College in 1985, and magna cum

laude from Tulane Law School in 1988, where he was inducted into Order of the Coif and

selected as Editor in Chief of the Tulane Law Review. After graduation, he clerked for the United

States District Court, Eastern District of Louisiana, and practiced law at Cravath, Swaine &

Moore LLP in New York City, and Stone Pigman Walther Wittmann LLC, in New Orleans.

He has served as reporter to the Louisiana State Bar Association Ethics 2000 Committee, as

chairperson of a Louisiana Attorney Disciplinary Board Hearing Committee, as Chair of the

Lawyer Disciplinary Committee of the United States District Court for the Eastern District of

Louisiana, and as a member of various Louisiana State Bar Association committees including the

Professionalism Committee, the Lawyer & Judicial Codes of Conduct Committee, and the Ethics

Advisory Service Committee. He also serves as the Executive Administrator and General

Counsel to the City of New Orleans Ethics Review Board. His weblog, Louisiana Legal Ethics,

is located at https://lalegalethics.org/.

Professor Ciolino engages in a limited law practice and in law-related consulting, principally in

the areas of legal ethics, lawyer discipline, judicial discipline, and federal criminal law. He

represents clients in disciplinary matters before the Louisiana Supreme Court, the Louisiana

Attorney Disciplinary Board, and the Louisiana Judiciary Commission. He also handles legal

malpractice cases, lawyer disqualification motions and lawyer fee disputes. Finally, he consults

and serves as an expert witness in the fields of legal ethics, legal fees and the standards of care

and conduct governing lawyers. Professor Ciolino can be reached by telephone at (504) 975-

3263, and by email at dane@daneciolino.com.

https://lalegalethics.org/mailto:dane@daneciolino.com

Professor Michelle Ghetti; Deputy Solicitor General, Louisiana Dept. of Justice;

Southern University Law Center; Baton Rouge, LA

Professor Michelle Ghetti is the Deputy Solicitor General for the State of Louisiana, a frequent

presenter at Judicial College Conferences, and the co-author and editor of the Louisiana Capital

Crimes Benchbook and the Criminal Best Practices Benchbook. She is the LOCHE Endowed

Professor of Law at Southern University Law Center where she has specialized in criminal law,

evidence, constitutional law, and ethics for 24 years. Prof. Ghetti recently returned from a year-

long fellowship with the United States Supreme Court during which time she also taught at

Georgetown Law School and American University’s Washington College of Law. She serves or

has served on numerous boards, task forces, and committees including the U.S. Commission on

Civil Rights, Louisiana Advisory Committee and the Louisiana Law Institute, Committee on

Evidence & Procedure and is a former member of the Louisiana Indigent Defense Assistance

Board. Prof. Ghetti is also a legislative consultant to numerous groups and has helped draft and

support such recent pieces of legislation as the Self-defense/Stand Your Ground law and the anti-

bullying law, as well as laws relating to jury trial waivers, competency determinations, forensic

lab results, indigent defense, capital punishment, and domestic violence.

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SOCIAL MEDIA AND LITIGATION: ETHICAL AND PRACTICAL CONCERNS

By: Honorable John W. deGravelles

United States District Court, LA Middle District

SOCIAL MEDIA AND TRIAL

Introduction – The Problem

To restate the obvious: “The theory of our jury system is that the conclusions to be

reached in a case will be induced only by evidence and argument in open court, and not by

outside influence, whether of private talk or public print.”1 And yet we know that those called to

jury service have, through a variety of devices, instant and constant access to the internet. Try as

we may to prevent it, the courtroom nonetheless “sits squarely atop the internet highway.”2

While it may seem like an impossible task, it is the judge’s job to eliminate, or at least

minimize, the tainting of jury decision-making by internet (or other outside) information. This

section of our paper discusses the challenge to judges presiding over trials in the age of the

internet and possible solutions to meet this challenge.

The problem is not merely theoretical. A 2010 article on this subject count at least 90

verdicts which were challenged based on internet-related juror misconduct.3 Many of these

resulted in mistrials.4 A juror’s internet exposure to outside information about a case can be

inadvertent or intentional. It can occur pretrial or after the trial has begun. It can even occur

during deliberations. It can take the form of information gathering or communication.

In a 2014 national survey of federal judges conducted by the Federal Judicial Center,5 the

following data was published:

- There were 33 instances (6.7% of judges polled) in which jurors used social media

during trial or deliberations in the preceding two years.

- A wide variety of social media platforms were used, Facebook accounting for over

60%.6

1 Patterson v. Colorado ex rel. Att’y Gen., 205 U.S. 454, 462 (1907); see also Fifth Circuit Jury Instructions (Civil

Cases) 1.1 (Preliminary Instructions), 1.2 (Preliminary Instructions to Jury), 3.1 (Jury Charge) (2016); Addendum to

Fifth Circuit Pattern Jury Instructions (Criminal), 1.01 (Preliminary Instructions) (2017); and Fifth Circuit Pattern

Jury Instructions (Criminal). 2 Julie Blackman & Ellen Brickman, Let’s Talk: Addressing the Challenges of Internet-Era Jurors, THE JURY

EXPERT: THE ART & SCIENCE OF LITIGATION ADVOCACY (Mar. 30, 2011),

http://www.thejuryexpert.com/2011/03/lets-talk-addressing-the-challenge-of-internet-era-jurors/. 3 Brian Grow, As Jurors Go Online, U.S. Trials Go Off Track, REUTERS (Dec. 8, 2010),

http://reuters.com/article/2010/12/08/us-internet-jurors-idUSTREE6B74Z820101208. 4 Id. 5 Meghan Dunn, Fed. Judicial Ctr., Jurors’ and Attorneys’ Use of Social Media During Voir Dire, Trials, and

Deliberations: A Report to the Judicial Conference Committee on Court Administration and Case Management,

(2014) at 4. 6 Id. at 5.

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While these numbers appear small, one should not conclude that the problem is a small

one. It is obvious that internet research and communications are usually done outside the

watchful eye of the court, and the instances in which misconduct is discovered represents only a

small percentage of the times in which it occurs. Furthermore, internet use has only increased

since 2014 when the study was published. According to one 2017 publication, “78% of adult

Americans have at least one social media profile.”7

The FJC study identified these specific ways in which social media was misused:

- jurors divulging confidential information about the case;

- communicating or attempting to communicate with witnesses, parties, attorneys or

judges;

- revealing aspects of the deliberation process;

- friending or attempting to friend witnesses, parties, attorneys or judges; and

- revealing identifying information about other jurors.8

Attorneys’ Use of the Internet for Jury Selection and Trial

Having been a civil litigator for nearly 40 years, I can report that lawyers are exquisitely

sensitive to their online presence. They know that jurors (or potential jurors) as well as potential

clients, may be checking their web page prior to or during trial and many design their web page

with this in mind. There are even instances in which websites have been created to support the

trial positions of high-profile criminal defendants like Michael Jackson and Martha Stewart.9 But

more important for our purposes here is an attorney’s use of the internet to do research on

members of the venire, either before or after jury selection begins.

The ability of lawyers to do jury venire research in advance of trial obviously depends on

the availability of the venire list to lawyers. This varies from court to court.10 Assuming the

names are available to attorneys before trial, to what extent may a lawyer ethically research the

potential juror on the internet? There is a wealth of public information available to attorneys and

jury consultants hired to assist them. “Attorneys can access public records of prospective jurors

including marital, arrest, and property owner information, and individuals often provide

information regarding organization membership, including religious and political party

affiliations, via social media sites like Facebook.”11

7 Jan L. Jacobowitz & John G. Browning, Legal Ethics and Social Media: A Practitioner’s Handbook, American

Bar Association, (2017) at 94. 8 Id. at 6. 9 Jeffrey T. Frederick, Did I Say That? Another Reason to Do Online Checks on Potential (and Trial) Jurors, JURY

RES. SERVICES (Oct. 13, 2011), http://www.nlrg.com/blogs/jury-research/bid/69503/Did-I-Say-That-Another-

Reason-to-Do-Online-Checks-on-Potential-and-Trial-Jurors. 10 For instance, the Jury Plan for the U.S. District Court, Middle District of Louisiana specifies that “Unless

otherwise ordered by the trial judge or magistrate judge, the names of petit jurors drawn from the qualified wheel for

service shall not be disclosed to the parties until the day of trial.” Available at

http://www.lamd.uscourts.gov/sites/default/files/Jury/LAMD_Jury_Plan_Revised_2015.pdf. 11 J. Brad Reich, Inexorable Intertwinement: The Internet and the American Jury System, 51 Idaho L. Rev. 389, 397

(2015).

http://www.lamd.uscourts.gov/sites/default/files/Jury/LAMD_Jury_Plan_Revised_2015.pdf

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Generally speaking, as long as the attorney is accessing information which is publicly

available and does not attempt to communicate to the juror, such information gathering is

permissible. ABA Formal Opinion 466, entitled Lawyer Reviewing Jurors’ Internet Presence,

states, in pertinent part:

Unless limited by law or court order, a lawyer may review a juror’s or potential

juror’s Internet presence, which may include postings by the juror or potential

juror in advance of and during a trial, but a lawyer may not communicate directly

or through another with a juror or potential juror.

A lawyer may not, either personally or through another, send an access request to

a juror’s electronic social media. An access request is a communication to a juror

asking for juror information that the juror has not made public and that would be

the type of ex parte communication prohibited by Model Rule 3.5(b).12

The ABA Opinion makes clear that such research and monitoring is permitted during, as

well as before, the trial. Indeed, the opinion envisions that trial attorneys can, through their use of

monitoring jurors’ social media, be a useful resource to the court in discovering juror

misconduct.

In the course of reviewing a juror’s or potential juror’s Internet presence, if a

lawyer discovers evidence of juror or potential juror misconduct that is criminal

or fraudulent, the lawyer must take reasonable remedial measures, including, if

necessary, disclosure to the tribunal.13

Interestingly, one writer argues that “it is not only permissible for lawyers to research

jurors before and during trial using social media according to currently existing professional

standards, but that they also have an ethical obligation to do so.”14 A recent ABA publication

agrees, call researching and monitoring jurors’ social media “vital to seating an honest, unbiased

jury, and to ensuring that any online misconduct is promptly brought to the court’s attention.”15

What’s more, research shows that the vast majority of jurors expect lawyers to do internet

research and social media checks on prospective jurors.16

12 ABA Comm. on Ethics & Prof’l Resp., Formal Op. 466 1, 1 (2014), available at

https://americanbar.org/content/dam/aba/administrative/professional_responsibility/formal_opinion_466_final_04_2

3_14.authcheckdam.pdf; see also Hon. Gustavo A. Gelpi, Jr. & Valeria M. Pelet Del Toro, Trial by Google: Juror

Misconduct in the Age of Social Media, The Federal Lawyer, January/February 2018, 33, 34. 13 Id. 14 Jessica L. Boylan, “Jury Duty”: The Ethical Obligations of Attorneys Researching Jurors Using Social Media

Technology, 29 Geo. J. Legal Ethics 867, 869 (2016). 15 Jacobowitz & Browning, supra note 7, at 96. 16 Stephen Paterson, Using Social Media and Other Background Research in Voir Dire: Why Jurors Don’t Care, But

You Should, VINSON & COMPANY (2016), http://vinsoncompany.com/wp-content/uploads/2015/09/Using-Social-

Media-Other-Background-Research-in-Voir-Dire.pdf. The study showed that 82% respondents expected lawyers to

conduct internet research and social media checks, with only 18% expressing surprise that this was done.

https://americanbar.org/content/dam/aba/administrative/professional_responsibility/formal_opinion_466_final_04_23_14.authcheckdam.pdfhttps://americanbar.org/content/dam/aba/administrative/professional_responsibility/formal_opinion_466_final_04_23_14.authcheckdam.pdf

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Methods of Eliminating Internet Influence and Use

Generally, there are three main ways in which judges attempt to deal with the growing

problem of juror internet use and exposure: first, determining the extent of any knowledge about

the case through traditional voir dire questioning; second, restricting juror’s access to their

devices during voir dire and trial; and finally, warning jurors against internet use as to trial

issues. This latter method may also include requiring potential jurors to sign a written pledge

agreeing not to violate the court’s instructions.17 While some scholars caution that these methods

have limitations,18 others argue that “[a] well-crafted social media instruction is effective

because, simply put, jurors listen.”19 These three methods will be discussed in the context of jury

selection, the trial and deliberations.

Jury Selection – Internet Issues

Have potential jurors researched the case after being summoned but before they arrive at

the courthouse? Do jurors have access to and use their devices during jury selection? What can

the Court do to address these issues?

In the Middle District of Louisiana, those called to serve on a jury receive not only the

jury summons but Petit Juror Instructions. On the latter, under “Security”, they are warned that

cell phones, laptop computers, electronic reading devices and pagers are “prohibited in the

building”. In addition, the summoned juror may access information about service on the jury by

going to a specific location on the Court’s website:

https://www.lamd.uscourts.gov/jury/contact/general/information. Here, again, he or she will be

instructed not to bring cell phones, laptops or audio/video recorders.

Once jury selection begins, many judges confront this serious issue of internet use by

having a frank discussion of the problem with the venire and how the court expects them to deal

with it. “Because of how accustomed jurors are to their ‘always-online lifestyle,’ jury

instructions against social media use should be as specific as possible. In addition, judges should

17 The American College of Trial Lawyers proposes that jurors sign a written “Statement of Compliance”: “I agree

that during the duration of the trial in ________, I will not conduct any independent research into any of the issues

or parties involved in this trial. I will not communicate with anyone about the issues or parties in this trial, and I will

not permit anyone to communicate with me. I further agree that I will report any violations of the court’s

instructions immediately.” JURY COMMITTEE, AMERICAN COLLEGE OF TRIAL LAWYERS, JURY INSTRUCTIONS

CAUTIONING AGAINST USE OF INTERNET AND SOCIAL NETWORKING 1, 6 (Sept. 2010). 18 Reich, supra note 11, at 408, calls a judge’s assumption that jurors will follow orders to avoid external informal

information and his belief in the efficacy of restricting jurors’ access to devices “fatally flawed”. Indeed, one writer

argues that “[t]he banning, seizing, or confiscating of a smart phone belonging to a juror, in addition to over-

restricting the juror’s use of the device, is a practice that should be discontinued by all judges and courts. When a

juror is disallowed the use or possession of a mechanism of modern connection and storage, he or she will

experience authentic feelings of anxiety, inattention, lack of control, ostracism, and gear for the well being of

others….[J]urors, and arguably their verdicts, will be impacted by a forced separation from phone possession and

thoughtless restriction of device usage….The disempowering and anxiety-provoking act of taking an individual’s

phone is draconian and archaic.” Patrick C. Brayer, The Disconnected Juror: Smart Devices and Jurors in the Age of

Litigation, 30 Notre Dame J.L. Ethics & Pub. Pol’y 25, 47 (2016). 19 Hon. Amy J. St. Eve & Michael A. Zuckerman, Ensuring an Impartial Jury in the Age of Social Media, 11 Duke

L. & Tech. Rev. 1, 29 (2012).

https://www.lamd.uscourts.gov/jury/contact/general/information

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explain the importance of such a restriction…”20 I have attached to the paper examples of such

jury instructions given during voir dire.

The Trial – Internet Issues

Most jury trials are non-sequestered. Even if they have been prohibited from bringing

their devices to the courthouse during trial, once the jurors leave the courthouse, they regain

access to them. Realistically, is there anything the court can do to prevent prohibited internet

research and ensure compliance with instructions?

In its 2014 survey of federal district judges, the Federal Judicial Center listed the

following measures taken to ensure no internet juror misconduct:21

- Reminded jurors at voir dire to refrain from using social media while serving as a

juror;

- Used the Judicial Conference Committee’s model jury instructions, or other similar

instructions, before trial;

- Explained, in plain language, the reason behind the social media ban;

- Instructed jurors at multiple points throughout the trial;

- Used the Judicial Conference Committee’s model jury instructions, or other similar

instructions, before deliberation;

- Confiscated phones and other electronic devices at the start of each day of trial and/or

during deliberations;

- Alerted the jury about the personal consequences of violation of instructions

- Required jurors to sign a statement of compliance or written pledge agreeing to

refrain from using social media while serving as a juror;

- Posted a notice in the jury assembly and deliberation rooms regarding the use of

social media

Once the jury is selected, the most commonly used method to prevent the jury from doing

internet research or engaging in internet communications about the case is by the use of

instructions given at the beginning and periodically during the trial, as well as during the court’s

final instructions to the jury. I have provided examples of these instructions with the paper.

But how can a court ensure compliance with the its instructions against internet use? “It

seems unlikely in this era of judicial budget constraints, the courts will have the people, time,

technology, or money required for monitoring.”22 ABA Formal Opinion 466 presents another

possible tool. As mentioned above, it obliges an attorney to disclose to the court any fraudulent

or criminal juror misconduct he or she discovers while researching or monitoring jurors.

Specifically, a court could issue an order a) prohibiting attorneys from having any online

contact with jurors or potential jurors; b) allowing internet research into juror data from public

20 Hon. Gustavo A. Gelpi, Jr. & Valeria M. Pelet Del Toro, Trial by Google: Juror Misconduct in the Age of Social

Media, The Federal Lawyer, January/February 2018, 33, 34. 21 Dunn, supra note 5, at 9. 22 Reich, supra note 11, at 415.

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sources, consistent with Opinion 466; c) restricting internet use by jurors as it pertained to case

information and issues; and d) reminding attorneys of their ethical obligation to report juror

internet misconduct when they become aware of it, again, consistent with their obligations as

articulated in Opinion 466.23 While certainly not full proof, such a solution would give the court

an advantage it doesn’t have otherwise.

What to Do if You’ve Failed

If, despite the court’s best efforts, the rules are violated, what are available options to

correct or repair the situation? Obviously, the answer is going to depend upon the specifics of the

violation and its seriousness. The 2014 survey of federal district judges conducted by the Federal

Judicial Center listed the following ways in which juror internet misconduct was handled:

- declared a mistrial

- held the juror in contempt

- fined the juror

- removed the juror from the jury,

- cautioned the juror but allowed the juror to remain on the jury.24

Conclusion

While the task of minimizing the impact of outside influence in the digital age may seem

daunting, there is reason for hope. United States District Judge Amy J. St. Eve of the Northern

District of Illinois, conducted an admittedly unscientific study of 140 jurors who had served in

trials in her court and that of her colleague, Judge Matthew F. Kennelly.25 Juror participation was

voluntary and anonymous. During the trials, instructions against social media were made

frequently. Of the 140 jurors participating, “only six jurors reported any temptation to

communicate about the case through social media….[T]he overwhelming majority of jurors,

approximately 130 jurors, or 92% of the sample- - reported no such temptation.”26 Based on the

results, the authors “suggest that courts should, as a matter of course, employ specialized social

media instructions at frequent intervals during trial. A well-crafted social media instruction is

effective because, simply put, jurors listen.”27

In addition, as has been suggested above, requiring jurors to leave their devices at home,

posting reminders against internet use in the jury assembly room and jury deliberation room

during the trial, and having jurors sign a pledge to follow the court’s instructions, will also help

achieve the goal of a jury untainted by the world wide web.

23 This proposal is a modification of a four-part proposal offered in Reich, supra note 11, at 418-19: “First, courts

will publicly announce that monitoring will occur. Second, courts will use traditional voir dire to try to ascertain

juror Internet habits and online identities. Third, once jurors are selected, courts will monitor juror internet activities,

attempting to ensure jurors are without (at least publicized) bias, and that they do not engage in actions making them

triers of fact. Fourth, when jurors or prospective jurors are caught, they will be publicly recognized.” 24 Dunn, supra note 5, at 5. 25 St. Eve, supra note 19, at 21. 26 Id. at 21, 22. 27 Id. at 29.

Lawyer Social Media Use and Abuse

Dane S. Ciolino ALVIN R. CHRISTOVICH DISTINGUISHED PROFESSOR OF LAW

LOYOLA UNIVERSITY NEW ORLEANS COLLEGE OF LAW

Dane S. Ciolino

Dane S. Ciolino serves as the Alvin R. Christovich Distinguished Professor of Law at Loyola University New Orleans College of Law. His current scholarly and teaching interests at Loyola include Professional Responsibility, Evidence, Advocacy, and Criminal Law.

Professor Ciolino graduated cum laude from Rhodes College in 1985, and magna cum laude from Tulane Law School in 1988, where he was inducted into Order of the Coif and selected as Editor in Chief of the Tulane Law Review. After graduation, he clerked for the United States District Court, Eastern District of Louisiana, and practiced law at Cravath, Swaine & Moore LLP in New York City, and Stone Pigman Walther Wittmann LLC, in New Orleans.

He has served as reporter to the Louisiana State Bar Association Ethics 2000 Committee, as chairperson of a Louisiana Attorney Disciplinary Board Hearing Committee, as Chair of the Lawyer Disciplinary Committee of the United States District Court for the Eastern District of Louisiana, and as a member of various Louisiana State Bar Association committees including the Professionalism Committee, the Lawyer & Judicial Codes of Conduct

Committee, and the Ethics Advisory Service Committee. His weblog, Louisiana Legal Ethics, is located at https://lalegalethics.org/.

Professor Ciolino engages in a limited law practice and in law-related consulting, principally in the areas of legal ethics, lawyer discipline, judicial discipline, and federal criminal law. He represents clients in disciplinary matters before the Louisiana Supreme Court, the Louisiana Attorney Disciplinary Board, and the Louisiana Judiciary Commission. He also handles legal malpractice cases, lawyer disqualification motions and lawyer fee disputes. Finally, he consults and serves as an expert witness in the fields of legal ethics, legal fees and the standards of care and conduct governing lawyers. Professor Ciolino can be reached by telephone at (504) 975-3263, and by email at dane@daneciolino.com.

For additional biographical information, visit https://daneciolino.com/.

Prof. Ciolino’s legal ethics book, Louisiana Legal Ethics: Standards and Commentary (2019), is available for purchase at https://lalegalethics.org/ and at Amazon.com.

Register for Professor Ciolino’s free monthly Louisiana Legal Ethics Newsletter at his blog Louisiana Legal Ethics found at https://lalegalethics.org/ or on his newsletter subscription page: Subscribe to Louisiana Legal Ethics Newsletter.

https://lalegalethics.org/mailto:dane@daneciolino.comhttps://daneciolino.com/https://lalegalethics.org/https://www.amazon.com/2019-Louisiana-Legal-Ethics-Ciolino/dp/1793008469/ref=as_sl_pc_tf_til?tag=lalegalethics-20&linkCode=w00&linkId=3e166a04b432b9a4949973ed0be9716a&creativeASIN=1793008469https://lalegalethics.org/https://lalegalethics.us7.list-manage.com/subscribe?u=596653f110ac633fa988459e4&id=08c89000b4

Dane S. Ciolino March 3, 2019

lalegalethics.org/lawyer-disciplined-for-fake-facebook-page

On February 8, 2019, theSupreme Court ofPennsylvania suspended alawyer/prosecutor forcreating a fake Facebookpage in an effort to catchcriminals. See Office ofDisciplinary Counsel v.Miller, No. 32 DB 2017 (Pa.

Feb. 8, 2019).

In an effort to identify stores selling illegal “bath salts,” the respondent,the District Attorney of Centre County, Pennsylvania, created a “fictitiousFacebook account under the name of ‘Britney Bella,’ for the purpose of‘liking’ establishments suspected of selling illegal bath salts” so that heroffice could identify potential targets for investigation. Id. at 18. Aftercreating the page, the respondent encouraged her staff to “befriendpeople and snoop.” Id. at 19.

Desite the respondent’s “intent to curb criminal activity in her county,” herconduct was “fraudulent and deceptive” in violation of Rule 8.4(c)(prohibiting “conduct involving dishonesty, fraud, deceit ormisrepresentation”). Said the court:

Respondent’s tactics crossed the boundaries of professional ethics. . . . Everylawyer licenesed in Pennsylvania, including prosecutors, is bound by the ethicsrules to practice law within this construct.

Id. at 33.

This conduct would likewise run afould of the Louisiana Rules ofProfessional Conduct. Louisiana Rule 4.1 prohibits a lawyer from “makinga false statement of material fact or law to a third person.” Furthermore,in dealing with an “unrepresented person,” Louisiana Rule 4.3 providesthat a lawyer “shall not state or imply that the lawyer is disinterested,”and must make “reasonable efforts” to correct any misunderstanding

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https://lalegalethics.org/lawyer-disciplined-for-fake-facebook-page/http://www.pacourts.us/assets/opinions/DisciplinaryBoard/out/32DB2017-Miller.pdfhttp://www.pacourts.us/assets/opinions/DisciplinaryBoard/out/32DB2017-Miller.pdfhttps://lalegalethics.org/louisiana-rules-of-professional-conduct/article-4-transactions-with-persons-other-than-clients/rule-4-1-truthfulness-in-statements-to-others/https://lalegalethics.org/louisiana-rules-of-professional-conduct/?page_id=315

that the person might have about the “the lawyer’s role in a matter.”Thus, a Louisiana lawyer must not lie to anyone as to his identity orpurpose in making a friend request on social media. Further, a Louisianalawyer must make efforts to affirmatively correct any misunderstandingsthe would-be friend may have about the the lawyer’s loyalties. Thetakeaway? A Louisiana lawyer may make a friend request to anunrepresented person, but the lawyer can’t lie or mislead. If the lawyer’swould-be friend is confused as to the lawyer’s role, the lawyer mustcorrect the confusion.

1. As to the propriety of making such a request to a representedperson, Louisiana Rule 4.2 would prohibit any friend requestswhatsoever if the friend request relates to a matter on which thewould-be friend is represented by counsel. ↵

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https://lalegalethics.org/louisiana-rules-of-professional-conduct/article-4-transactions-with-persons-other-than-clients/rule-4-2-communication-with-person-represented-by-counsel/

Dane S. Ciolino November 28, 2015

Florida Approves Prelitigation Santization of a Client’sFacebook Page

lalegalethics.org/florida-approves-prelitigation-santization-of-a-clients-facebook-page

May a lawyer advise a client to “clean up” social mediapages by removing photos, videos, and otherinformation that are “directly related to the incidentfor which the lawyer is retained?” Yes, according to anethics opinion that the Florida Bar Board ofGovernors approved on October 16, 2015. See Op. No.14-1, Professional Ethics of the Florida Bar (Jun. 25,2015, approved Oct. 16, 2015). According to theopinion, a lawyer:

may advise that a client change privacy settings on the client’s social media pages so thatthey are not publicly accessible. Provided that there is no violation of the rules orsubstantive law pertaining to the preservation and/or spoliation of evidence, [a lawyer] alsomay advise that a client remove information relevant to the foreseeable proceeding fromsocial media pages as long as the social media information or data is preserved.

This Florida opinion is consistent with North Carolina Formal Ethics Opinion 5, (July25, 2014). In that opinion, the North Carolina State Bar concluded that a lawyer mayadvise a client to take down information on social media—but only if removal doesnot amount to spoliation of evidence and is not otherwise illegal.

What is “spoliation”? Under Louisiana law, the term “spoliation of evidence” refers to“an intentional destruction of evidence for purpose of depriving opposing parties ofits use.” Pham v. Contico International, Inc., 759 So. 2d 880, 882 (La. Ct. App. 5th Cir.2000) (citing Hooker v. Super Products Corp., 751 So. 2d 889 (La. Ct. App. 5th Cir.1999); Kammerer v. Sewerage and Water Board of New Orleans, 633 So. 2d 1357 (La.Ct. App. 4th Cir. 1994)). The Pham court noted that “the tort of spoliation of evidencehas its roots in the evidentiary doctrine of ‘adverse presumption,’ which allows a juryinstruction for the presumption that the destroyed evidence contained informationdetrimental to the party who destroyed the evidence unless such destruction isadequately explained.” Id. (citing Randolph v. General Motors Corp., 646 So. 2d 1019(La. Ct. App. 1st Cir. 1994)).

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Dane S. Ciolino July 25, 2013

May I “Friend” an Unrepresented Person on SocialMedia to Gather Information to Help My Client?

lalegalethics.org/may-i-friend-an-unrepresented-person-on-social-media-to-gather-information-to-help-my-client

A June 2013 ethics advisory opinion from the New Hampshire BarAssociation Ethics Committee advises against a lawyer “friending” anonparty witness if the lawyer “omit[s] identifying information” fromthe request. The committee opined that such an omission “maymislead the witness.” See New Hampshire Bar Ass’n EthicsComm. Op. 2012-13/5 (opinion that such conduct would violateRules 4.1 and 8.4(c)). Ethics opinions from other jurisdictions have given similar full-disclosure advice. See Philadelphia Ethics Op. 2009-2 (2009); San Diego CountyEthics Op. 2011-2 (2011).In my view, Louisiana would not require as much disclosure. Louisiana Rule4.1 prohibits a lawyer from “making a false statement of material fact or law to athird person.” Furthermore, in dealing with an “unrepresented person,” LouisianaRule 4.3 provides that a lawyer “shall not state or imply that the lawyer isdisinterested,” and must make “reasonable efforts” to correct any misunderstandingthat the person might have about the “the lawyer’s role in a matter.” Thus, aLouisiana lawyer must not lie to anyone as to his identity or purpose in making afriend request on social media. Further, the lawyer must make efforts toaffirmatively correct any misunderstandings the would-be friend may have aboutthe the lawyer’s loyalties. Beyond that, there is no requirement that a lawyerMirandize a would-be friend in the course of making the friend request.The takeaway? A Louisiana lawyer may make a friend request to an unrepresentedperson, but the lawyer can’t lie or mislead. If the lawyer’s would-be friend isconfused as to the lawyer’s role, the lawyer must correct the confusion. As to thepropriety of making such a request to a represented person, Rule 4.2 would prohibitany friend requests whatsoever if the friend request relates to a matter on whichthe would-be friend is represented by counsel.

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Dane S. Ciolino November 29, 2016

New Advisory Opinions on Lawyer Social Media Uselalegalethics.org/new-advisory-opinions-on-lawyer-social-media-use

The District of Columbia Bar has issued twoadvisory opinions addressing many of the legaland ethical implications of lawyer social mediause. The first opinion addresses lawyer use ofsocial media for marketing legal services and forpersonal communication. See District ofColumbia Bar, Ethics Op. 370, Social Media I:Marketing and Personal Use (Nov. 2016). Thesecond opinion addresses lawyer use of social media for providing legalservices. See District of Columbia Bar, Ethics Op. 371, Social Media II: Use of SocialMedia in Providing Legal Services (Nov. 2016). Here are the important takeaways fromthese opinions:

Rule 1.1 requires a lawyer to “keep abreast of changes in the law and itspractice.” For this reason, a lawyer “must be cognizant of the benefits and risksof the use of social media.”A lawyer should avoid the formation of inadvertent attorney-clientrelationships. To this end, “disclaimers are advisable on social media sites,especially if the lawyer is posting legal content or if the lawyer may be engagedin sending or receiving messages from ‘friends,’ . . . when those messagesrelate, or may relate, to legal issues.”A lawyer should use caution in responding to comments or online reviews byclients. More particularly, a lawyer must avoid making false or misleadingstatements, and refrain disclosing client confidential information. “There is noexception in Rule 1.6 that allows an attorney to disclose client confidences orsecrets in response to specific or general allegations regarding an attorney’sconduct contained in an online review . . .”A lawyer who uses social media sites that allow for prepublication “review ofposts, recommendations or endorsements” must police the accuracy of postedinformation. To this end, a lawyer should employ “settings that allow reviewand approval of such information before it is publicized on the lawyer’s socialmedia page.”Rule 1.6 requires a lawyer to understand how nonclients can access socialmedia communication and postings. Given the risks of disclosure to

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nonclients, a lawyer should reach agreement with the lawyer’s client aboutwhether social media “should ever be used” for confidential communications.A lawyer must review a client’s social media postings and address whether anyare inconsistent with claims or defenses to insure that they are meritoriousunder Rule 3.1 and that misrepresentations are not made to courts oragencies in violation of Rules 3.3 and 8.4. Before a client engages in “anylawyer-counseled or lawyer-assisted removal or change in content of clientsocial media,” the lawyer should preserve “an accurate copy of such socialmedia.”A lawyer should “look at the public social media postings of their opponents,witnesses, and other relevant parties” for relevant information. However,“requesting access to information protected by privacy settings, such asmaking a ‘friend’ request to a represented person,” is impermissible if theperson is represented by counsel or if the lawyer makes a materially falsestatement to the third person.A lawyer who posts information about past matters for marketing purposesmust assure that client confidential information is not disclosed.Finally, a lawyer must adequately supervise the lawyer’s employees to assurethat their use of social media is consistent with the standards of conductapplicable to the lawyer.

1. The opinions define the term “social media” to include “any electronic platformthrough which people may communicate or interact in a public, semi-private,or private way. Through blogs, public and private chat rooms, listservs, otheronline locations, social networks, and websites such as Facebook, LinkedIn,Instagram, Twitter, Yelp, Angie’s List, Avvo, and Lawyers.com, users of socialmedia can share information, messages, e-mail, instant messages,photographs, video, voice, or videoconferencing content. This definitionincludes social networks, public and private chat rooms, listservs, and otheronline locations where attorneys communicate with the public, otherattorneys, or clients.” ↵

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Dane S. Ciolino November 16, 2018

Facebook “Friendship” With Lawyer No Basis forDisqualifying Judge

lalegalethics.org/facebook-friendship-with-lawyer-no-basis-for-disqualifying-judge

On November 15, 2018, the Florida Supreme Courtfinally resolved a conflict among Florida lower courts onthe issue of whether Facebook “friendship” is a sufficientbasis for judicial disqualification. See Law Offices ofHerssein and Herssein, P.A. v. United Services AutomobileAssoc’n, No. SC17-1848 (Fl. Nov. 15, 2018). Said theFlorida Supreme Court: “We hold that an allegation that a trial judge is a Facebook‘friend’ with an attorney appearing before the judge, standing alone, does notconstitute a legally sufficient basis for disqualification.” Id. at 2.

The Conflicting OpinionsIn 2012, a Florida appellate court ruled that having a lawyer as a Facebook friendsundermines “confidence in the judge’s neutrality” and gives rise to a “well-foundedfear of not receiving a fair an impartial trial.” See Domville v. State, 103 So. 3d 184,186 (Fla. Ct. App. 4th Dist. 2012). Subsequent opinions, however, expressedskepticism. In Chance v. Loisel, No. 5D13-4449 (Fla. Ct. App. 5th Dist. 2014), anotherFlorida court noted that:

We have serious reservations about the court’s rationale in Domville. The word “friend” onFacebook is a term of art. A number of words or phrases could more aptly describe theconcept, including acquaintance and, sometimes, virtual stranger. A Facebook friendshipdoes not necessarily signify the existence of a close relationship. Other than the publicnature of the internet, there is no difference between a Facebook “friend” and any otherfriendship a judge might have. Domville’s logic would require disqualification in casesinvolving an acquaintance of a judge. Particularly in smaller counties, where everyone inthe legal community knows each other, this requirement is unworkable and unnecessary.Requiring disqualification in such cases does not reflect the true nature of a Facebookfriendship and casts a large net in an effort to catch a minnow.

Likewise, yet another Florida appellate court ruled that a district judge may presideover a civil action even though she is Facebook friends with a lawyer appearingbefore her. See Law Offices of Herssein and Herssein, P.A. v. United Services AutomobileAss’n, No. 3D17-1421 (Fl. Ct. App. 3d Dist. 2017). Noting that that Facebook contacts

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often are not equivalent to real-life friends, the court found that no “reasonablyprudent person would fear that he or she could not get a fair and impartial trialbecause the judge is a Facebook friend with a lawyer who represents a potentialwitness and party to the lawsuit.” On the contrary, “[a]n assumption that allFacebook ‘friends’ rise to the level of a close relationship that warrantsdisqualification simply does not reflect the current nature of this type of electronicsocial networking.” The court noted the following three reasons for its holding:

1. Some people have thousands of Facebook friends, which reflects how distantmany Facebook relationships truly are.

2. Facebook members often don’t even know who their friends are.3. Friendships formed by Facebook’s “data mining and networking algorithms” is

a product of an “astounding development in applied mathematics.” But whilethese algorithms are powerful tools “to build personal and professionalnetworks,” they have “nothing to do with close or intimate friendships of thesort that would require recusal.” Id. at 8-9.

Let’s Be FriendsThankfully, the Florida Supreme put a stop to this silly debate in Law Offices ofHerssein and Herssein, P.A. v. United Services Automobile Assoc’n, No. SC17-1848 (Fl.Nov. 15, 2018).

Who and what is a “friend?” Well, said the court, it depends: Friendship in “thetraditional sense of the word does not necessarily signify a close relationship. It iscommonly understood that friendship exists on a broad spectrum: some friendshipsare close and others are not.” Id. at 8 (citing Black’s Law Dictionary 667 (6th ed. 1990)(defining the term “friend” as “[v]arying in degree from greatest intimacy toacquaintance more or less casual”)). Because the “mere existence of a friendshipbetween a judge and an attorney appearing before the judge, without more, doesnot reasonably convey to others the impression of an inherently close or intimaterelationship,” an allegation of “mere friendship” does not constitute “a legallysufficient basis for disqualification.” Id. at 9.

And so it is with Facebook friendship. In addressing the question “what is the natureof Facebook ‘friendship?’,” the court recognized that such relationships could bemore intimate or far less intimate than traditional friendships:

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Today it is commonly understood that Facebook “friendship” exists on an even broaderspectrum than traditional “friendship.” Traditional “friendship” varies in degree fromgreatest intimacy to casual acquaintance; Facebook “friendship” varies in degree fromgreatest intimacy to “virtual stranger” or “complete stranger.”

Id. at 13. Because “the mere existence of a Facebook ‘friendship,’ in and of itself,does not inherently reveal the degree or intensity of the relationship between theFacebook ‘friends,'” no “reasonably prudent person would fear that she could notreceive a fair and impartial trial based solely on the fact that a judge and anattorney appearing before the judge are Facebook ‘friends’ with a relationship of anindeterminate nature.” Id. at 15-16. For this reason, “Facebook ‘friendships’—whichregularly involve strangers—should [not] be singled out and subjected to a per serule of disqualification.” Id. at 20.

A well-reasoned and sensible holding.

1. The court noted that its holding was consistent with the “clear majority” ofethics opinions on the issue. Id. at 16 (citing Ariz. JEAC Op. 14-01, at 4 (Aug. 5,2014); Ky. Jud. Ethics Comm. Op. JE-119, at 2-3 (Jan. 20, 2010); Md. Jud. EthicsComm. Op. 2012-07, at 5 (June 12, 2012); Mo. Ret., Removal, & DisciplineComm’n Op. 186, at 1 (Apr. 24, 2015); N.M. Jud. Conduct Adv. Comm. Op.Concerning Soc. Media, at 13-14 (Feb. 15, 2016); N.Y. JEAC Op. 13-39 (May 28,2013); Ohio Bd. of Comm’rs on Grievances & Discipline Op. 2010-7, at 1-2, 8-9(Dec. 3, 2010); Utah JEAC Op. 12-01, at 4-7 (Aug. 31, 2012). ↵

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Dane S. Ciolino October 8, 2018

Lawyer Suspended for Creating False Match.com Profileto Harass Opposing Counsel

lalegalethics.org/lawyer-creates-false-match-com-profile-to-harass-opposing-counsel

On September 20, 2018, the Illinois Supreme Courtsuspended Drew R. Quitschau for six months forcreating a false Match.com profile—and numerousother fake Internet accounts—in the name of hisopposing counsel in a bizarre effort to stalk andharrass her. See In re Drew Randolph Quitschau, No.M.R. 29433 (Sep. 20, 2018). Quitschau admitted tothe following misconduct. See Answer to Complaint, In re Drew R. Quitschau, IL Atty.Registration and Disciplinary Comm’n, No. 2017-PR-00084 (filed Aug. 28, 2017).

The respondent and Jane Doe were opposingcounsel in dozens of family-law cases since 2003.In September 2016, Quitschau created a falseonline dating profile in Doe’s name and postedthat she was separated, does not exercise, andthat she liked NASCAR and pizza. He downloadedphotographs from Doe’s law firm website anduploaded them to Match.com.

In addition, Quitschau created unauthorizedonline registrations in Doe’s name for otherorganizations, including the Obesity ActionCoalition, Pig International, and Diabetic Living.He also fabricated false reviews and negative,one-star ratings regarding Doe’s professionalcompetence on Martindale.com, Lawyers.com, and Facebook.com.

Doe reported Quitschau to Illinois disciplinary authorities and obtained anemergency no-stalking/no-contact protective order against him. See Edith Brady-Lunny, No-Stalking Order vs. Lawyer Over Fake Dating Post (Feb. 16, 2017). BecauseQuitschau admitted to violating Illinois Rule 8.4(c), which prohibits conduct involvingdishonesty, fraud, deceit or misrepresentation, the only issue in his disciplinaryproceeding was the imposition of an appropriate sanction for his unusualmisconduct.

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On June 6, 2018, the Hearing Board of the Illinois Attorney Disciplinary Commissionfound that Quitschau “engaged in acts of dishonesty, fraud, deceit, andmisrepresentation as charged in each of the seven counts of the Complaint, whenhe registered another attorney on five websites, created a false Facebook accountand wrote false reviews of the attorney legal abilities on three other websites.” SeeIn re Quitschau, No. 6278288 (Jun. 6, 2018).

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http://www.iardc.org/HB_RB_Disp_Html.asp?id=12753

Juries and Social MediaBiosMaterials Judge deGravellesMaterials Dane Ciolino2019-03-03 Lawyer Disciplined for Fake Facebook Pagelalegalethics.org-Florida Approves Prelitigation Santization of a Clients Facebook Pagelalegalethics.org-May I Friend an Unrepresented Person on Social Media to Gather Information to Help My Clientlalegalethics.org-New Advisory Opinions on Lawyer Social Media Uselalegalethics.org-Facebook Friendship With Lawyer No Basis for Disqualifying Judgelalegalethics.org-Lawyer Suspended for Creating False Matchcom Profile to Harass Opposing Counsel