Erin Gerstenzang DUI Symposium August 28, 2015

Safe Passage Through Murky Waters

RULE 1.6(A) CONFIDENTIALITY OF INFORMATION

A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent.

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RULE 1.6(A) CONFIDENTIALITY OF INFORMATION COMMENT [5]

Rule 1.6 applies not merely to matters communicated in confidence by the client but also to all information gained in the professional relationship, whatever its source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law.

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ATTORNEY’S BLOG POST

#127409 This stupid kid is taking the rap for his drug-dealing dirtbag of an older brother because "he's no snitch." I managed to talk the prosecutor into treatment and deferred prosecution, since we both know the older brother from prior dealings involving drugs and guns. My client is in college. Just goes to show you that higher education does not imply that you have any sense.

KRISTINE ANN PESHEK 60-DAY SUSPENSION

“Proper attire for trial?”

ATTORNEY’S FACEBOOK POST

ANYA CINTRON STERN

When a lawyer broadcasts disparaging and humiliating words and pictures, it undermines the basic client relationship and it give’s the appearance that he is not receiving a fair trial.”

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I personally know the attorney and the sad part is she is a brilliant trial attorney.  I can tell you, those of you who think this was stupid, watch out; this can happen to anyone!!!  Social media is so prevalent nowadays that anyone can make a mistake. Who hasn’t commented about photographs of this or that introduced as evidence at a trial?  This is not any different, especially with the younger generation who use social media as we used real social gatherings.  Let him who is free of sin cast the first stone.”

ABA ARTICLE COMMENT ON ARTICLE ABOUT ANYA CINTRON STERN

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HOW TO RESPOND TO ONLINE CLIENT REVIEWS?

Tsamis accepted a $1,500 fee even though she knew full well that a law in Illinois would prevent me from obtaining unemployment BENEFITS!!”

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ATTORNEY RESPONDED

I dislike it very much when my clients lose, but I cannot invent positive facts for clients when they are not there. I feel badly for him, but his own actions in beating up a female co-worker are what caused the consequences he is now so upset about.”

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PUBLIC REPRIMAND

MARGARET SKINNERMARGARET SKINNER

SKINNER OPINION RELIED ON TWO OUT-OF-STATE

DECISIONS

IN RE QUILLINAN, 20 DB RPTR. 288 (2006)

90 DAY SUSPENSION FOR POSTING CLIENT’S NAME ON

LISTSERV.

Listerv post likened to emailing editor of a newspaper or

participating in a call-in radio show.LOS ANGELES BAR ASSOCIATION OP. 514 (2006)

RULE 1.6(A) CONFIDENTIALITY OF INFORMATION COMMENT [4]

A lawyer's use of a hypothetical to discuss issues relating to the representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved.

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RULE 1.6(A) CONFIDENTIALITY OF INFORMATION COMMENT [5]

Rule 1.6 applies not merely to matters communicated in confidence by the client but also to all information gained in the professional relationship, whatever its source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law.

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“In 1972, legal ethics boiled down to: ‘Don’t lie, don’t cheat, don’t steal and don’t advertise,’ ” said John W. Dean III, one of the lawyers brought down by Watergate with President Richard M. Nixon.

A RECENT FACEBOOK POST

Another day of WINNING in Fulton County! Two DUIs dismissed today - .23 and .17!”“

RULE 7.1 COMMENT [2] COMMUNICATIONS CONCERNING A LAWYER’S SERVICES

Communications Concerning a Lawyer's Services of statements that may create "unjustified expectations" would ordinarily preclude advertisements about results obtained on behalf of a client, such as the amount of a damage award or the lawyer's record in obtaining favorable verdicts, and advertisements containing client endorsements. Such information may create the unjustified expectation that similar results can be obtained for others without reference to the specific factual and legal circumstances.

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LAWYER PHOTOSHOPPED CELEBRITY PHOTOS & POSTED TO HER FIRM WEBSITE

Sangary’s American dream has come true, as she has been able to achieve a point wherein now, in her thirties, Sangary is a prominent donor and philanthropist, supporting important social causes, who had recently received the email from President Obama with the subject line ‘I need your help today,’ asking Svitlana Sangary for an additional donation…”

SIX MONTH SUSPENSION

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It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

Rule 8.4(c) Misconduct

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BE CAREFUL ABOUT REPEATING JUDGES’ COMPLIMENTS ONLINE

Based upon my observations of him in court there's no question in my mind that he is in the upper echelon of employment lawyers in this state …”

HON. DOUGLAS H. HURD,IN AN UNPUBLISHED JUDICIAL OPINION

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A judicial quotation’s potential to mislead a consumer is self-evident... Without the surrounding context of a full opinion, judicial quotations relating to an attorney’s abilities could easily be misconstrued as improper judicial endorsement of an attorney, thereby threatening the integrity of the judicial system.

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JUDGE FAITH S. HOCHBERG US DISTRICT COURT OF NEW JERSEY

While it is the law that when the possibility of deception is . . . self-evident a state is not required to produce evidence to justify its imposition of a disclosure requirement, we cannot allow rote invocation of the words ‘potentially misleading’ to supplant the burden to demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree.”

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DWYER V. CAPPELL, 762 F.3D 275 (3D CIR. 2014) (QUOTATIONS OMITTED)

WHAT ABOUT THE FIRST AMENDMENT?

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Jury Selection

A lawyer cannot be competent absent a working knowledge of the benefits and risks associated with the use of social media.

RULE 1.1 COMPETENCE COMMENT [6]

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New York bar section releases

social media guidelines for

lawyers

(PA and NC Concur)

TWEETED DURING A MURDER TRIAL

Choices to be made. Hearts to be broken. We each define the great line.”

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Because of the very nature of Twitter as an on online social media site, [the juror's] tweets about the trial were very much public discussions. Even if such discussions were one-sided, it is in no way appropriate for a juror to state musings, thoughts, or other information about a case in such a public fashion.”

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ERICKSON DIMAS-MARTINEZ V. STATE, 2011 ARK. 515 (ARK. DEC. 8, 2011)

JUSTICE DONALD CORBIN ARKANSAS STATE SUP CT.

Divulged confidential information about the case

Communicated or attempted to communicate directly with participants in the case (e.g., witnesses, attorneys, judges)

Revealed elements of the deliberation process

2013

6

3

2

“Friended” or intended to “friend” participants in the case

2011

3

0

0

3

Ways in which jurors used social media during a trial or deliberation

Federal Judicial Center data (2014) - 494 Federal Judges Surveyed.

Reported by another juror

Reported by an attorney

Reported by court staff

2013

13

8

Reported by one of the parties

2011

5

3

Ways in which judges learned about social media use by jurors

Arose during post-trial motions

12

6

5

Federal Judicial Center data (2014) - 494 Federal Judges Surveyed.

Erin Gerstenzang DUI Symposium August 28, 2015

Safe Passage Through Murky Waters