Monthly Archives: October 2011

Time to Add a Disclaimer to Your Blog?

As I blogged about previously, earlier in the month the Virginia Bar charged attorney Richmond Attorney Horace Hunter with misconduct due to his Richmond Criminal Defense News blog (PDF here).[1]

The attorney in question has now been found guilty of violating the Virginia ethics rules regarding advertising. Don’t fear for Hunter, his penalty was a public admonition and he was told take corrective action within 30 days – public admonition is the least sever penalty available.

Specifically, the Virginia Disciplinary Committee found that Hunter violated an ethical rule that mandated an advertising disclaimer on his blog when he wrote about his own legal cases.  Under Virginia Ethics Rule 7.2 Hunter must ethically post a disclaimer on the homepage of his blog.[2]  Since Hunter didn’t have the disclaimer in his blog posts noting his firm’s wins to be advertising, the Committee found his conduct to be unethical.

The Committee further found that Horace Frazier Hunter violated rules by disclosing detrimental or embarrassing information about clients without their consent.  Apparently, at least two former clients said they did not want their cases posted on Hunter’s blog after learning that he had written about their cases.

Hunter had argued that his blog consisted of news and commentary and refused to post the disclaimer as a violation of his First Amendment free speech rights. He claimed that since the information he posted was accurate and disclosed during public trials, that he did not violate any confidences.

“Although I adamantly disagree with the panel’s decision, I do respect it” [3]

The Virginia Disciplinary Committee contends that the disclaimer is aimed at preventing potential clients from being misled – something that could generate mistrust of the justice system or make clients mistrust their lawyers.  The Committee did not see the First Amendment as being involved in the case.

“The First Amendment has no bearing on this violation. … It doesn’t impact journalists, it doesn’t impact bloggers, it doesn’t impact the general public.” – Renu Brennan, Assistant Virginia Bar Counsel [4]

Will this move have the chilling effect that some have proposed? [5]  I doubt it.  Attorneys might, however, want to start including a disclaimer on their blog if they talk about their cases.

Further, it’s always wise to remember to remain ethical in our new Web 2.0 World. Absent a specific rule or guideline, it’s always wise to use common sense.

[2] However, this Rule 7.2 Disclaimer Rule is only to apply, “when listing previous wins in advertising.”  The disclaimer must state that prior results don’t guarantee future success. The issue will be will be whether Hunter’s blog posts are written in a truly journalistic fashion, or are they simply disguised advertising taking the form of blog posts

[3] See: Virginia Bar Rules that Lawyer Violated Advertising Rules with his Blog

[4] See: Virginia Bar Rules that Lawyer Violated Advertising Rules with his Blog

[5] The Washington Post‘s Capital Business Blog originally reported the story and stirred the pot when it cautioned that the action against Hunter could have a chilling effect on blogging in the legal industry. Washington Posts’s Catherine Ho (@WapoCat on Twitter) warned that Virginia lawyers who blog about their cases may suffer  the consequences from their state bar.  Ms. Ho also state that the Hunter case could set precedent for other states bar’s limiting legal blogs.

eDiscovery by Geeks for Attorneys

Electronic Discovery.  These two words have to power to make the hair stand up on just about every attorney’s neck.

Let me tell you a story that was told to me by Dan Libby, a digital evidence expert who is featured on our website.  Dan delivered a great presentation a few years ago on e-discovery and computer forensics for a local law group here in San Diego.  After the presentation, he had an older attorney in the audience come up to him, shake his hand, slap him on the back, and tell him how thankful he was that Dan had given the presentation – because it had cemented his decision to retire from the practice of law!

Yes, e-discovery is the game changer …. and has even sent a few attorneys into an early retirement.  The 2006 Amendments to the Federal Rules of Civil Procedure have ushered in an entirely new era in the practice of law – the Digital Age.  Attorneys must now take proactive steps regarding the discovery of ESI (Electronically Stored Information).

Luckily, we’ve got you covered if you need to brush up on the electronic discovery of Electronically Stored Information.  We have just added three great new CLE courses with Angie Singer the CEO of Reclamere, a company based in Pennsylvania that specializes in Data Security and IT Asset Management.[1]  Angie has quite a bit of experience with these electronic issues, and she breaks the information down in a way that attorneys can understand it.

Here are the three courses that we just added:[2]

E-Discovery vs. Computer Forensics – What’s the Difference?

With the rapid rise of electronic data discovery (EDD), even well prepared and educated attorneys can be confused about the differences between computer forensics and electronic discovery. While e-discovery is required in more instances than computer forensics, attorneys may use one or both services depending on the cause of action and the facts of the case.

In this presentation, Ms. Singer illustrates the differences between e-discovery and forensics to give you a better idea of how these different types of services can be effectively used in your cases. The primary topics addressed include industry terms, the basics, a review of the differences between the two services, common myths, case examples, observations, and resources.  Ms. Singer also diligently explains e-discovery and the EDRM (Electronic Discovery Reference Model), a very helpful model/diagram that visually illustrates the steps involved in e-discovery.

eDiscovery by Geeks for Attorneys

The 2006 Amendments to the Federal Rules of Civil Procedure (FRCP) ushered in the area of e-discovery & ESI and forever changed the landscape of American legal system. Are you ready to practice law in the Digital Age where printers, GPS, and even Nintendo Game Boys now contain valuable electronic evidence?

In this CLE course, Ms. Singer explains why it’s now good practice to have a geek in your corner!  The course focuses on the roles of the attorneys and expert, the big picture of EDD, common myths and avoiding problems. Other areas addressed include case law, statutes, the foundation & life cycle of EDD, preparation, litigation & preservation holds, reasonable anticipation of litigation, sources of ESI, collection & searching, production, native file format, E-Discovery governance, continuous improvement, outsourcing, and commercial products. Case law discussed by Ms. Singer includes Cache La Poudre Feeds, LLC v. Land O’Lakes, Zubulake v. UBS Warburg, Phoenix Four, Inc. v. Strategic Resources Corp., and Jane Doe v. Norwalk Community College.

Security Threats & Trends for Attorneys

From poor password protection to the dangers of social media, Ms. Singer will teach you about some of the top security threats to your client’s confidential data.  Angie will provide you with answers – not just fear – to protect yourself and your clients from these security threats. The ten threats for attorneys that Ms. Singer discusses include social media, excessive user privileges, unpatched machines, autorun exploits, poor password practices, phishing & spear phishing, lost or stolen devices, over-confidence in anti-virus software, unsecured Wi-Fi, and cyber money mule scams.

Other issues addressed include malware, data breach notification laws, clickjacking & keylogging, beachheads, legacy systems, URL shortening websites, the role of privilege in information systems, administrator rights and patching. Ms. Singer also provides numerous practice points on how to overcome each threat.

If you need to brush up on the finer points of electronic discovery, computer security, and computer forensics, these online CLE courses can serve as an excellent resource to your professional development.

[1] Angie Singer has over 20 years of experience with information systems, engineering, project management. Her certifications include CISA (Certified Information Systems Auditor), CIPP (Certified Information Privacy Professional), CISM (Certified Information Security Manager) and CRISC (Certified in Risk and Information Systems Control). Ms. Singer’s specialties include Computer Forensics, e-Discovery Litigation Support, Data Recovery, Data Destruction, Systems Assessments, and Systems Auditing

[2] Although we are an online CLE company, attorneys may take these courses in a variety of formats, including streaming audio and video, in addition to MP3 and video download format for offline use.  We also offer CD and DVD compliance packages in select states that deliver your MCLE compliance package.

Blogging: Advertisement or Journalism?

Advertising has been a vexing problem for the legal profession for years now.  Before legal advertising was deemed legal with the 1977 Supreme Court decision in Bates v. Arizona, the fear was that advertising would erode notions of professionalism. And since advertising become legal for attorneys, we have had to suffer though the late night ‘Larry Parker got me $2.1 million’ commercials.

This tension between professionalism and advertising has followed into the online realms as well.  Chat rooms, websites and Internet Referral Services have all been fertile ground for attorney advertising – and unethical conduct.

Now blogs are at issue … once again.  The questions becomes, how big is the threat?

Attorney Horace Hunter, who maintains the Richmond Criminal Defense News blog has been charged with misconduct by the Virginia State Bar (PDF here). The Washington Post‘s Capital Business blog recently stirred the pot when it cautioned that the action against Hunter could have a chilling effect on blogging in the legal industry.[1]

However, the Washington Post‘s Capitol Business blog could be way off base here. The main issue in the case is whether a blog should be treated as advertising or as news & commentary.

Hunter asserts that the blog is not an advertisement, but rather consists of news and commentary. Since his blog falls into a ‘news and commentary’ category, no disclaimer is required and the blog is protected by the First Amendment.  The Virginia State Bar contends that Hunter’s blog is advertising and as such, under Virginia Ethics Rule 7.2 Hunter must ethically post a disclaimer on his website.  Since Hunter didn’t have the disclaimer in his blog posts noting his firm’s wins, the Bar claims this is unethical.

However, this Rule 7.2 Disclaimer Rule is only to apply, “when listing previous wins in advertising.”  The disclaimer must state that prior results don’t guarantee future success. The issue will be will be whether Hunter’s blog posts are written in a truly journalistic fashion, or are they simply disguised advertising taking the form of blog posts.[2]

The Viriginia State Bar claims may ultimately hold merit. Carolyn Elefant seems to think that Hunter’s blog is a thinly veiled newsfeed of his firm’s triumphs and successes. You can see for yourself by visiting the blog here.

We will have to see what the Virginia Bar decides, the hearing is set for October 18th.  Even if the Bar succeeds, attorneys will merely have to place some small text reading “Attorney Advertising” on the footer of the main blog page – not even at the bottom of each post. This is not a major issue.  Further, as Kevin O’keefe of RLHB points out there is no record of disciplinary action against Virginia attorneys regarding blogging dating back to 1999.

Brief summary of Advertising rules & issues:

  • Lawyers cannot state anything false or misleading
  • Lawyers cannot state they are a specialists, unless so certified by their respective State Bar
  • Lawyers cannot use testimonials in some states with the implication that past performance will dictate future results
  • It’s smart to include a disclaimer on your website that you practice in a certain geographic region to avoid unauthorized practice of law claims
  • Use common sense – if you can’t do it on the T.V. or the radio, you can’t state it in your website, blog, Twitter, or Facebook (remember Rakofsky!)

Further Resources:

[1] Washington Posts’s Catherine Ho (@WapoCat on Twitter) warns that Virginia lawyers who blog about their cases may suffer  the consequences from their state bar.  Ms. Ho also state that the Hunter case could set precedent fo other states bar’s limiting legal blogs.

[2] One thing that I have found in years of tracking these ethics and technologies issues is that each case must be decided on a case-by-case basis. Because each case involves specific electronic conduct by the attorney or firm at issue, it’s tough to make blanket statements on the merits of one case. There are numerous firms – especially P.I. firms – whose blogs are thinly veiled advertisements or direct solicitations. And that may be the case here.

Online CLE in New Jersey

New Jersey recently instituted mandatory continuing legal education (MCLE).  New Jersey attorneys now must complete 24 CLE units every two years, including 4 hours of legal ethics.[1]

Under current standards, twelve units may be completed online.  However, there are two main exceptions that would allow New Jersey attorneys to complete all 24 units with approved online CLE.[2]  First, attorneys who do not reside in New Jersey may qualify for an out of state exemption (see: BCLE Reg 201:8).  Second, some attorneys may also qualify for a medical exemption which would allow them to complete all required 24 CLE units via online study (see: BCLE Reg 201:8).  For more information on these rules click here.

Luckily, offers a number of approved online CLE Courses in New Jersey. Many attorneys enjoy the convenience of our New Jersey one-click state bundles – your entire compliance package with one click of your mouse. While other attorneys prefer to purchase credit packages and choose their own individual courses.  Further, if attorneys are licensed in both New Jersey and New York, you may apply your New Jersey CLE credits towards your New  York MCLE compliance.

For online MCLE courses in New Jersey please see below:

Further Information on CLE Requirements in N.J:

Total CLE Requirements:

* 24 credit hours every 2 years

Specialty Requirements

* General – 20 hours 
Ethics – 4 hours

Reporting Date:

* December 31

Reporting Date Rule:

* Compliance Group 1 (Birthdays Jan. 1-Jun. 30) – 12/31/2011

* Compliance Group 2 (Birthdays Aug.1-Dec. 31) – 12/31/2012

MCLE Credits Attorney Can Earn online in N.J.:

*Attorneys may earn 12 of 24 credits on

* Some attorneys who qualify for an exception may earn all 24 CLE credits online

To read the N.J. MCLE regulations, please click here:

Using Facebook and Social Media Evidence at Trial

Every morning I wake up and check the headlines on and the Law Technology News.  It seems everyday brings more headlines on the use of social media and other electronic evidence at trial.  Whether it’s prosecutors trying to ‘friend’ potential jurors or attorneys turning to social media for evidence to use at trial, the Internet holds massive amounts of information.

The first thing I read about yesterday was a court in Pennsylvania that would not allow unauthenticated text messages to  be admitted as evidence at trial. The court cited a number of decisions from jurisdictions around the country which have held electronic communications to the same authenticity standards as paper evidence.[1]  This is yet another decision that helps to define the evidentiary boundaries of admissible electronic communications.

Even though there is this vast wealth of information on the Internet, the question becomes – how do you ethically obtain and use this electronic information at trial?  Facebook has become a virtual treasure trove of information for attorneys … but there is very little guidance on how to best deploy this electronic evidence at trial.

If you need help in determining how to best obtain and deploy social media evidence, trial attorney Dan Gilleon provides firsthand experience in Finding and Obtaining Electronic & Social Media Evidence at Trial.  In the course, Mr. Gilleon utilizes case examples from his own practice and addresses ethical issues with social media evidence, how Facebook pictures were used in the Brian Giles case, finding information on Facebook, prejudicial vs. probative electronic evidence, how to get this evidence in at trial, authenticating pictures and other electronic evidence and subpoenas.

For further resources see:

[1] The court turned to In the Interest of F.P., where the court decided that circumstantial evidence may be used to authenticate a document “where the circumstances support a finding that the writing is genuine” – whether the document is electronic or otherwise.

The Digital Age Brings New Legal Challenges For Schools

Guest post by Gretchen Shipley

With fewer resources than ever before, school district administrators are overwhelmed with trying to keep up with and respond to on-line misconduct by students and teachers. In an era of sexting, cyberbullying, and Facebook, school administrators walk a fine line in trying to provide a safe school environment and at the same time, trying not to infringe on student first amendment rights. Unless on-line misconduct by a student causes a “substantial disruption” on campus, school districts may not actually have jurisdiction to intervene.  Three recent federal court decisions have all sided with student first amendment rights when school districts took action to discipline students for cyberbullying, posting sexual images on-line, and a MySpace parody of a principal, where the defendant school districts were unable to cite to substantial disruption on campus to warrant school district intervention.

Teachers, however, are typically held to a higher standard for on-line conduct. There has been a surge of teacher misconduct and inappropriate relationships created as a result of teachers and students “friending” via social networking sites. One recent case upheld the dismissal of a teacher for lewd on-line conduct that was not viewed or known to students.  The content of the on-line text and photos that were anonymously reported to the school principal caused the principal to lose confidence in the teachers ability to serve as a role model to students. The court found this nexus sufficient to warrant school district discipline for immoral and unprofessional conduct.

Finally, everyone in the school community should be educated on the dangers of sexting. Not only has sexting lead to a sharp increase in bullying and student suicide, sexting may be grounds for criminal charges for child pornography. The unusual result is that the student who took the sexting self-portraits may be the victim and perpetrator of their own crime. In many jurisdictions, the transmission of a nude, sexual or lewd photo of a minor qualifies as the distribution of child pornography, which carries harsh penalties, including possible lifetime registration as a sex offender.  Therefore, it is important that anyone who comes across a sexting image of a minor, not show the picture to anyone, but rather, seal up the phone and report the incident to the authorities.

For more information about legal issues related to technology in schools, board policies aimed at promoting responsible use of technology, and school campaigns to educate the school community on cyber citizenship, please do not hesitate to contact me at  As co-chair of Fagen Friedman & Fulfrost’s eMatters Practice Group dedicated to education technology, we represent over 400 school districts and community colleges and regularly conduct workshops and presentations throughout the country on cybercitizenship.

About the author: Gretchen M. Shipley is a partner in the San Diego area office and co-chair of the firm’s eMatters Practice Group.  In this leadership role, she keeps the firm and its clients in front of the legal issues that stem from technology in today’s education environment.  A respected legal leader in education law and technology, Ms. Shipley advises school districts and delivers workshops to students, employees and district leaders nationwide on the promotion of cyber-citizenship in the school community and the implications of cyber-misconduct in the classroom and workplace.  Ms. Shipley has collaborated with the Association of California School Administrators to co-produce the popular “Logged On” seminars, created to offer guidance on employee and student issues that stem from embedding technology into public education.  Ms. Shipley also advises clients on the acquisition process of new technology, online instruction, E-Rate compliance and the business aspects of school technology.

If you need further information please view Gretchen’s CLE course on the website:  Sexting, Texting & Facebook: First Amendment Issues in Schools.