Monthly Archives: April 2011

Social Media: Positive or negative affect on the law?

I recently posed this question in the Legal Blogging group on LinkedIn along with the following commentary:[1]

Have Twitter, Facebook, and blogs helped or hurt the practice of law? While social media has jeopardized some defendant’s right to a fair trial, it also allows attorneys to connect with existing and potential clients and allows the public to easily find information about the legal profession. At any rate, social media will only continue to impact society and the law — and can be a vital asset to attorneys and the practice of law.

To date, there have been over 20 incredibly insightful comments from some very bright legal minds from across the country. To me, this is the most amazing part of social media – getting to connect with leading professionals around the country and gaining their insight and perspective on current legal trends and topics.[2]

While I initially wanted to get the group’s thoughts about social media endangering the right to a fair trial, the LinkedIn discussion ultimately shifted in another direction – the use of social media in marketing. Whether an attorney is thinking about claiming their profile’ on AVVO or staring a Facebook page, attorneys have increasingly begun to use Social Media in an attempt to reach clients and build a positive online reputation. There are many concerns here, from maintaining ethical compliance to social media credential fraud.

A local bar association recently featured a CLE event that was essentially about law in a Web 2.0 world. The two chief concerns amongst attorneys:

1. Attorney awareness of how much Web 2.0 is shifting clients’ experience and expectations

2.  The legal ethics surrounding these changes

Here are a few more thoughts from the discussion:

  • Social media is only going to grow, so the sooner all of us identify its strengths and assets, the better.
  • Some attorneys … aren’t comfortable with the fact that Avvo’s system is not fully within their control.
  • It seems that lawyers could avoid all social media ethics risks completely if they’d simply stop talking about themselves.
  • I really don’t think the law profession is ready for “raw” social media.

Personally, after writing the initial blog post I think that social media has only had a positive impact on the law. At the end of the day, the reason I think it is a positive is because it puts more legal information into the hands of legal consumers and the general public – whether chatting with potential attorneys online or sharing their legal experience, more information can only be a good thing.

    How are you using social media in your practice?


    [1] This was based on a Marcch 25th blog post that I wrote entitled Law in a Web 2.0 World

    [2] I initially posed the question whether the law has had a benefical or detreimental affect on the law in a recent blog post Law in a Web 2.0 World. Interestingly in the blog, I was more concerned about getting people’s thoughts on ‘Voir Google’ and social media and smartphones invading the sanctity of the American jury system. With jurors Googling outside information during trial, sharing social media posts in deliberations, and tweeting about their case from the jury box it’s getting much harder to get a ‘fair’ trial. Since jury instructions just don’t seem to go far enough, some have even suggested digital sequestration in certain high profile trials.

    In re McCourt & Creating a Visual Strategy

    In case you missed it, Major League Baseball (MLB) has now taken control of the Los Angeles Dodgers.  The intention of MLB and Commissioner Bud Selig is to eventually sell the club once an owner can be found and the legal hurdles are cleared.

    Frank McCourt is pretty much broke after his recent divorce from Jamie McCourt and does not have the capital to continue running the team. He needed to borrow $30 million from Fox to meet payroll and he was looking for an advance on future T.V. broadcasting rights – word on the street was that he was seeking a $200 million advance.  This did not sit well with Mr. Selig and the rest of MLB who decided that the once proud franchise had been tarnished enough by this Hollywood divorce drama.

    As you may recall, ownership of the Dodgers hinged on the MPA (Marital Property Agreement) made between Frank and Jamie McCourt. The only problem was that there were two copies of the agreement executed – one assigned ownership of the Dodger’s to Jamie, the other MPA would give ownership to Frank.[1] In the end, Frank’s copy was thrown out and the judge held that Jamie had a right to half the team. Now, the parties will now litigate how to divide the McCourt’s’ assets, including the Dodgers

    There is, however, one small nugget of wisdom that comes from these Hollywood divorce proceedings – the attorney’s use of a visual strategy to prove the case.  I recently read an article on law.com entitled Frank McCourt Strikes Out. A large part of the article was dedicated to the merits of TrialDirector software and how it helped the judge determine who owned the franchise. This is an incredibly powerful tool that allows attorneys to create visual presentations in court.[2] According the article, the software’s ability to do side-by-side document comparisons of exhibits, and other tools to help compare signatures was key in the McCourt case. Interestingly enough, In re McCourt was a bench trial so the attorneys didn’t even have to persuade a jury, they just had to convince the judge.

    This brings up an interesting question – is the use of visuals and digital presentations at trial pricing out small firms and solo liigators?  With the ‘CSI Effect’ and our visual society jurors are going to expect increasingly more visual stimulation in the courtroom.  This is a main concern for many small firms that don’t have the budget and IT personnel to keep up with the larger law firms.

    We just happened to tape a course with Bill Tubis of Visual Evidence yesterday for the Civil Litigation section of the North County Bar in San Diego.  This seemed to be a chief concern amongst many of the attorneys in the room – many of which come from smaller firms.[3] On one hand it seems that larger, more technical cases would be well suited for 30,000 jpgs of visual evidence. However, attorneys from smaller firms that are able to harness a visual strategy at trial will have a significant advantage over those firms without the technology.

    The takeaway?  I’ll leave that to attorney James Crosby:

    “There are no easy answers. Will smaller firms and solos continue to be squeezed in bigger cases by large firms, well-heeled clients and ample budgets? It will require creative thinking by small firms/solos and newer cost-effective solutions from vendors to counter this big firm competitive edge.”


    [1] During the process, the pair signed multiple copies of the MPA — and more important, two versions — of the agreement. Unfortunately for all concerned, the language in the two versions was not consistent as to who owned the couple’s most valuable asset: the Dodgers.

    [2] Among its key features, its transcript tools help users issue-code transcripts, create and print digests, view linked exhibits, and print condensed transcripts with word indexes.

    Teams use its video tools to create clips and synchronize video depositions to transcript text. With the document management resources users can create witness and trial workbooks, and manage exhibit lists. Presentation options run from creating a “tear out” section of a document to playing depositions (with or without scrolling transcript text).

    [3] Use of Visuals and Digital Presentations At Trial – Pricing Out Small Firm/Solo Litigators?

    http://crosbyattorneyblog.com/author/crosbyattorneyblog/

    Regulating Online Client Testimonials

    Putting more information into the hands of legal consumers seems like a good idea. However, since the early days of listserv and bulletin boards, State Bars have sought to regulate attorney’s online conduct. Many states – especially New York and Florida – have chosen to heavily regulate attorney’s conduct on the Internet despite First Amendment and other concerns.[2]

    “If you look at what’s going on from another perspective, we’re seeing the massive swelling of entrepreneurship activity in creating online review sites. And basically, you pick your industry, and there’s a niche online review site or more than one that’s targeting that niche, as well as there are these general sites like Yelp that cover many different industries. And what we’ve seen is that customers want to know more about the people that they’re going to be giving their money to.”[1]

    Many state bars have sought to over-regulate attorney’s online conduct despite the First Amendment and other laws – Vincent Buzard is one regulator. Buzard – you may, or may not, recall – was the former head of the New York Bar back in 2007 when he launched a Task Force to tighten up online advertising. The New York Bar went after everything from law firm and attorney monikers and pop up ads – to client testimonials.

    Earlier this week Buzard surfaced again in an ABA Podcast, once again sounding off against the use of client testimonials on attorney rating websites like AVVO and Yelp.  Now, he wants to regulate what your clients say about you on websites like AVVO and Yelp because he essentially thinks that this is attorney advertising.[4] Some State Bars feel that an attorneys is advertising when they open their mouth – Buzard has taken it one step further, and now equates just about anything said or written by anybody online as attorney advertising.

    According to Buzard’s rationale, he feels that it’s an ethical violation when a former client writes about an attorney on third party websites. I’m all for regulating attorney conduct online – I think they should shut down half of the PI blogs – but this is ridiculous. That’s because I could envision states like Florida jumping on this bandwagon – thinking that anything that comes from the mouth or hand of the client is advertising.[5]

    In addition to Buzard, a number of attorney regulators from other states have also taken the position that these client testimonials are tantamount to attorney advertising. However, the Communications Decency Act of 1996 and the First Amendment may limit the ability of attorney regulators to hold attorney’s responsible for web content posted by a third party. Specifically – client testimonials.

    During the ABA Podcast the moderator also suggested creating yet another Model Rule to cover this type of activity. And in many states there is tension between creating new electronic rules or falling back on traditional rules, standards, and guidelines when deciding if a given electronic activity is ethical. The problem with creating rules for electronic activities is that things change rapidly and regulators cannot keep pace with technology. As soon as you craft rules covering client testimonials by third parties – and that could take years – another electronic activity like Twitter pops up.

    Unfortunately, it’s best to analyze electronic activities in our brave new world under traditional ethics rules and attorneys must utilize common sense in the absence of regulation.

    The problem is that I don’t think regulators completely understand the conduct they are regulating. Under Vincent Buzard’s rationale attorneys would have to proactively monitor and remove any client testimonials written about them online. This is an absurd proposition.


    [1] Associate Professor Eric Goldman Can My Client Say That? Guests Discuss Lawyer Ethics and Testimonials on Rating Sites

    http://www.abajournal.com/mobile/comments/podcast_monthly_episode_13/

    [2] One of the participants to the Podcast was Jamie Zysk Isani. Ms. Isani’s law firm was one of eight that recently signed off on a filing to the Florida Supreme Court noting that the state attorney advertising rules are too restrictive in the firms’ opinions.

    [3] The Communications Decency Act of 1996 protects ratings websites from liability from third party posts.

    [4] Vincent Buzard from ABA Podcast: “Yeah. Where you claim the site on Avvo, and then the comments can be made. In other words, the attorney then becomes kind of a de facto sponsor.” Since they are a ‘sponsor’, in Buzard’s eyes the attorney is responsible for comment posted by third parties.

    [5] This goes back to 2009 when the Florida Supreme Court decided that attorney websites would now be subject to all of the general rules on advertising that are applicable to Florida lawyers. What the Florida Bar fails to recognize is that from a First Amendment perspective, there is a tremendous amount of information on firm websites and other computer communications that simply isn’t advertising. Law firms and attorney websites are also full of factual information that is NOT advertising – information about particular attorneys, practice groups, updates in the law, recent Supreme Court decisions.

    California ‘Late’ MCLE Deadline is June 30

    The bad news is that if your last name starts with N – Z and you haven’t yet completed your 25 Unit California Minimum Continuing Legal Education (MCLE) requirement you will be fined $100.

    The good news is that if you pay your $100 fine and complete your MCLE by June 30th you will still be able to practice law.  June 30th is the final deadline to pay dues and complete MCLE without facing possible suspension by the Supreme Court.

    Members who are late may pay dues and report MCLE compliance online through My State Bar Profile.

    You may obtain more information about bar dues and MCLE compliance by e-mailing msc@calbar.ca.gov or by calling the Member Services Center at 1-888-800-3400.  If you do need CLE in California, please visit our one-click state bundles page. We have both streaming audio and video available for online study, and with our CLE Your Way! We offer MP3s, DVDs, and CDs available for offline study.


    [1] Active lawyers who have not paid their dues by Feb. 1 will be assessed a $100 late penalty and inactive lawyers under 70 will be penalized $30. Non-compliance with MCLE requirements will result in a $75 penalty http://www.calbarjournal.com/February2011/YouNeedtoKnow.aspx.

    The California Bar & The Consumer Alert

    Back in the day when the California Bar Journal was in still in paper form, the first thing I would do when it came out was flip to the back.  Usually, tucked in past all the ADR ads were that month’s attorney discipline pages.  That’s where you get all the juicy dirt – from sex with clients to stealing money from partners.

    The one pattern I did notice – more attorneys got disciplined and disbarred for ‘misappropriating’ client funds.  Now I’m sure that many of these cases were just flat out theft, but I also wondered how many of these were unintentional where attorneys were just sloppy with the bookkeeping or just numerically challenged.  After all, none of us were taught accounting in law school (that would be a way too practical skill!).

    Now, the California Bar wants to take the step of posting a ‘Consumer Alert’ the top of a member’s State Bar website profile page when significant trust account violation charges are filed.[1] Currently, these changes are up for approval and have not been approved by the State Bar of California. The proposed Consumer Alert would contain the following message:

    The State Bar of California has filed disciplinary charges against this attorney alleging that the attorney engaged in a major misappropriation of client funds. In order to read the Notice of Disciplinary Charges filed by the State Bar against this attorney, click here. To learn more about the general nature of the disciplinary offense of misappropriation of client funds by an attorney, click here.

    The Consumer Alert, informational text and disclaimer are only removed from the member’s profile page after the filing of a decision or order of the State Bar Court adjudicating the Business & Professions Code section 6007(c) petition.

    I guess the bottom line is that you must be extremely careful with your client trust accounts.  There is very little grey area here and these are easy cases to prove.  Even if you don’t practice in California, your state could follow the Golden State’s lead and enact similar measures.

    Let’s review a few of the main ways attorneys get themselves into trouble with client funds.

    • Borrow – Attorney only needs to “borrow” client funds for a short time, intending to pay it back later.
    • Dip – Occurs when a specified amount is being held for a particular client, and the amount in trust falls below that amount.
    • Commingle – Attorney mixing his or her own funds with those belonging to a client.
    • Misappropriation – Theft.

    Some further resources:

    Steal client funds and charges
 may be posted online

    Consumer alert or lawyer alert?

    In re George Harwood, Esq.

    IN RE: Randee POMERANTZ

    IN RE: Steven A. KIRSCHENBAUM


    [1] The Consumer Alert and informational text, coupled with a disclaimer, would be posted upon filing either a Notice of Disciplinary Charges or a petition under Business & Professions Code section 6007(c) in the State Bar Court, when either includes a charge of misappropriation of client funds in the amount of $25,000 or more, whether as a single charge or aggregate of charges.

    What’s Your Smartphone?

    About two weeks ago I was taking my trash cans to the curb when I got a call.  I reached down into my pocket, pulled out my phone – and like a football on a wet December day the phone just slipped out of my hand and my Blackberry splatted against the cement.  Not unlike it had a number of times before, but this time is just happened to break into about 4 pieces, never to work again.

    At first I was a little perturbed about having to get a new phone – and then I got my Droid X.[1] I cannot believe that a little machine could make my life so much easier. In fact, I think they should change the name from ‘Smartphone’ because they are essentially little computers – that every now and then you use to make a phone call.

    Never again do I have to worry about being near a computer. My phone is now my computer. I can handle a number of tasks – from checking client accounts to updating the Attorney Credits Facebook page – all with my Droid.

    Interestingly enough, about three days after I bought my Droid I came across this great Facebook post from Jennifer Ellis.[2]

    For the fifth time running, Apple has topped J.D. Power’s smartphone customer satisfaction survey. The iPhone earned a score of 795 out of a possible 1,000 points. In line with the last survey published in September 2010, Motorola and HTC followed Apple with scores of 763 and 762, respectively.

    And after switching to the Droid X I can see why Blackberry and RIM are now last in customer satisfaction.

    Here’s how J.D. Power weighs the various categories for smartphones:[3]

    • Ease of operation – 26%
    • Operating system – 24%
    • Physical design – 23%
    • Features – 19%
    • Battery function – 8%

    The one complaint that I have about my Droid is that you constantly have to plug it in to recharge the battery.  However, since I spend hours on it everyday talking on the phone or using the Internet I can see why the battery fades so fast. Luckily, I downloaded a great app called ‘JuiceDefender’ that helps you to get more juice out of your battery by reducing non-essential functions and there is also a USB cable so you can charge it through your laptop or desktop computer.

    So how do you know which phone is right for you? Again, I will turn to the expert Jennifer Ellis:

    What I suggest you do is try out your colleague’s phones.  Think about what you need your phone to do, and find out whether there are applications that will help you do it.  Also see what phone is comfortable in your hands since it will no doubt spend a lot of time there.

    Here are a few more articles to consider:

    Switching Carriers or Phones? Sell the Old One

    iPhone v Android – So What’s the Big Deal?


    [1] Android is essentially an operating system used in a number of different phone models – from the Droid X to the EVO. According to Wikipedia, android is a software stack for mobile devices that includes an operating system, middleware and key applications. Google purchased the initial developer of the software, Android Inc., in 2005.

    [2] The main article that she used for her post was ‘Apple’s iPhone gets highest rating in J.D. Power survey, RIM falls to last.’ http://bit.ly/htpLwC

    [3] See http://bit.ly/htpLwC