Impact of Electronic Communication on Clients

Ferguson-White Inn of Court for 2010/2011 - Group 9 Hon. Katherine Essrig Gus Weekley Scott Ilgenfritz Sue Motley Helene Daniel Sam Salario Donald Crawford Sean Estes Vicky Carver Daniel Whitehouse

What is “Webutation”?

“Joe's new internet company just went public and his WEButation is higher than a kite.” or “A great WEButation is far more important than money in the bank.”

A Good Webutation: Sandra Day O’Connor

A Good Webutation: Sandra Day O’Connor Google “sandra day o’connor drugs” and you still find only scholarly articles.

A Bad Webutation: Charlie Sheen Interview

A Bad Webutation: Charlie Sheen Google “charlie sheen drugs” and you’ll find much more scandalous material.

Why you should care about your client’s webutation?

It can affect your case     Depositions Trial testimony Reputational damages in a defamation case Inadequate class representative It can affect your bottom line   Your client could lose his/her job Need to protect your own webutation

Ways to Discover a Client’s Webutation        Facebook : the social networking king.

Spokeo : collects information from public records and social networking sites.

Yoname : a free website that searches through a list of over thirty popular and obscure social networks including Imeem, LinkedIn, FaceBook, MySpace, Yahoo 360, Flickr, and Zorpia.

Linkedin : a professional networking site.

Zaba Search : is one of the sites for conducting free public records queries. Using Zaba Search, you can determine a person's exact past and current addresses and phone numbers.

Snitch.name

: queries search engines like Google, social networks site like Facebook; professional networks like Linkedin.com; Internet phone directories and even looks for photos – all at the same time.

Follow The Money.org

: searches for state-race campaign contributions in all 50 states.

A Case Study in Webutation: Greenpeace v. Nestle

Nestle’s Response

What can you do for your client?

Legal options:  Send cease-and-desist letters.

 Sue the content providers.

 Enforce an injunction (if you can get one).

What can you do for your client?

Nonlegal options:  Launch a counter-campaign a la Taco Bell .

 Lawsuit dropped and now asking for an apology.

 Hire a reputation defender.

 www.icorrect.com

 www.reputationdefender.com

 www.defendmyname.com

Lessons to Learn from Nestle 1.

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Admit mistakes.

You don’t make the rules in social media.

Always have a plan.

Hire a pro for your social media ops.

Respond to the online community.

Respond in common terms.

NEVER be condescending toward a commenter.

Create and maintain a social media policy.

Why Your Clients (and Your Firm) Need a Social Media Policy   When using social media, an employee may post as “the Company.” Even when not posting as “the Company,” an employee’s personal use of social media may be unintentionally connected to the company.

  An employee’s profile may identify his or her employer, which could result in the employee’s posts being viewed as “the Company’s” posts.

An employee may log onto a social media outlet from a company computer leaving a trail back to the company.

Webutations Gone Wild

Webutations Gone Wild

Webutations Gone Wild

Webutations Gone Wild

Webutations Gone Wild http://www.buzzfeed.com/mjs538/the-10-worst-gilbert-gottfried-tsunami-jokes

Webutations Gone Wild

Protecting Your Client’s Webutation Employees should be encouraged to think before they post.

Employees must be transparent about their relationship to the company.

Employees must never make misleading posts.

Employees should post only on their area of expertise.

Employees should be courteous to all commenters.

Employees, when disagreeing with commenters, should be polite.

Employees should never comment on legal matters or crisis situations.

Employees should never disclose confidential information.

Employees should create posts that add value.

Employees personal posts should include a disclaimer that “the views expressed are my own and not necessarily those of my employer.” Employees’ must know that violations can result in discipline or termination.

Protecting Your Law Firm’s Webutation      Attorneys should not be providing legal advice in social media posts, which could inadvertently create an attorney-client relationship.

Attorneys should be mindful that certain posts could violate the rules prohibiting certain types of advertising (e.g., LinkedIn recommendations).

Attorneys should be aware that employees posting on their behalf could be practicing law without a license.

Client confidences must be maintained.

Attorneys must avoid violations of copyright and securities laws.

Resources for Creating Social Media Policies    http://socialmediagovernance.com/policies.php

 Database of social media policies that are available online, which can be sorted by industry.

http://davefleet.com/2010/07/57-social-media-policy examples-resources/  A blog that includes articles about social media policies, links to companies’ policies, and other resources.

http://www.compliancebuilding.com/2008/11/03/bloggi ng-social-internet-policy/  A good blog post with basic guidelines for creating and/or publishing online content, including specific tips for law firms.

Preserving Attorney-Client Privilege of Electronic Communications   Advise clients of dangers in communicating with counsel from work or using a work computer. A business entity that maintains, communicates, and strictly enforces an electronic communications policy barring personal communications can likely gain access to personal electronic communications of employees, even communications with counsel that would otherwise be privileged. Advise clients that a lack of care in maintaining the privacy of electronic communications with counsel can waive the Attorney-Client Privilege.

Privileged or Not Privileged?

    You represent the president of a corporation in a personal business dispute with a former partner.

Your client sends e-mails to you about the case from her work e-mail account, which include information you would much rather your adversary never know.

The other side serves document requests seeking all e mails relevant to the proceedings, and you log your client’s e-mails to you as privileged.

Your adversary moves to compel, challenging the privilege assertion.

Answer: Likely Not Privileged Leor Exploration & Production LLC v. Aguiar, 2009 WL 3097207 (S.D. Fla. 2009)     Personal counsel to president of corporation involved in business dispute sent e mails to president’s personal agent using agent’s (and president’s) work e-mail.

Court held that e mails were not privileged because president “had no reasonable expectation of privacy in e-mails transmitted through [employer’s] server.” Borrowing from In re Asia Global Crossing, Ltd., 322 B.R. 247 (S.D.N.Y. 2005), the court looked to four factors:  Whether the corporation maintained a policy banning personal or other objectionable e-mail use;    Whether the corporation monitors the use of employee computers or e-mails Whether third parties have a right of access; and Whether the employee was notified or aware of the policies.

Finding all four factors present, the Court ordered production.

Should the Court Grant The Motion?

     You represent the plaintiff in an employment discrimination case.

Before she is fired, she uses her work laptop to send you e mails from her personal, password-protected, web-based e mail account.

Employer policy notes that e-mails are company property and may be examined, but also accepts “occasional” personal use.

When she is fired, the employer takes the laptop, does a forensic examination, and finds the e-mails. The employer’s lawyer refuses your demand to return them.

You move to disqualify the employer’s counsel.

Answer: It Depends; but Quite Arguably Yes Stengart v. Loving Care Agency, Inc., 990 A.2d 650 (N.J. 2010)  Employee had a reasonable expectation that her e-mails from her personal, password-protected account were confidential.

    Policy’s allowance of “occasional” e-mail use was ambiguous.

E-mails were clearly privileged and confidential – were for purposes of obtaining advice, contained confidentiality legends, etc.

Disqualification was on the table because applicable ethics rules provided that “[a] lawyer who receives a document and has reasonable cause to believe the document was inadvertently sent shall not read the document … and return the document to sender.”   Court rejected notion that these documents were simply “left behind.” Further fact-finding needed to determine appropriate sanction.

The ethics rules in Florida are somewhat different. See Fla. R. Prof. Cond. 4-4.4.

Should the Court Grant the Motion?

 You represent the husband in a divorce action.

 During the marriage, husband and wife shared access to e-mail accounts, but husband says that after divorce papers were filed husband changed the password.

 Wife gets into account, obtains e-mails between you and husband, and forwards those to her attorney. She says the password was never changed.

 You move to disqualify wife’s attorney based on his review of the privileged e-mails.

Answer: Depends on Who You Believe Minakan v. Husted, 27 So. 3d 695 (Fla. 4 th DCA 2010)   Critical fact questions are:   whether the husband treated the e-mails with counsel as confidential – if yes, then privilege applies; if no, privilege does not apply or has been waived.

whether the wife obtained an unfair advantage from reviewing the e-mails – if yes, then disqualification appropriate; if no, use a lesser sanction.

Trial court erred by assuming – based solely on the husband’s testimony and without testimony from the wife, that the e mails were privileged and that there was no other remedy besides disqualification to fix the problem.