The Bencher (Nov./Dec. 2010) Social Media and the Law

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Ethics IssuesProfessionalism

THE MAGAZINE OF THE AMERICAN INNS OF COURT

November/December 2010

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2 The Bencher ◆ November/December 2010 ◆ www.innsofcourt.org

F R O M T H E P R E S I D E N TThe Honorable Donald W. Lemons

With the advent of the personal computer, it was widely proclaimed that people would finally enjoy more leisure time. This prediction ignored what

we know about the species. Instead, we used whatever efficiencies were achieved to be more productive, and if anything, we lost leisure time. And whatever ethical and professional challenges exist in the practice of law seem to be magnified by the power of technology. The Internet, e-mail, cell phones, computer search engines, digital images, enormous electronic storage capacity, Facebook, Twitter, My Space—all of these techno-logical and social developments have presented new challenges for the legal profession.

Is it proper for a lawyer to “friend” a judge on a social network system? Is it proper for the judge to permit it? What about all the lawyers who appear before the judge who have not been “friended”? Does this social networking create ethical issues?

What about the lawyer who does not investigate social networking Web sites and fails to learn potentially useful information about the opposing party? Does this failure constitute lack of competence or lack of commit-ment to the representation of the client?

If lawyers and firms utilize social networking Web sites, what obligations do they have to constantly monitor the information on the site—even information placed on the site by others? Does the failure to do so risk malprac-tice suits or ethics violations? Does a law firm’s Web site constitute advertising subject to disciplinary rules?

Electronic communication results in electronic storage that creates massive archives of information. Under what circumstances may such information be destroyed? Does a lawyer with an equivalently massive discovery request abuse the system? Or would the failure to make such a request be considered poor representation of the client? Must there be new expectations of cooperation among adversaries to keep the legal system from collapsing under the weight of ever increasingly complex and expensive litigation?

Some of us remember when communication was much slower. It took time to dictate or write a letter, have it transcribed and processed and placed into the hands of the postal service. The time required to send such a letter permitted irritation and anger to subside. Sometimes the lawyer’s assistant would “misplace” the letter only to “find” it again the next morning when the passage of time tempered emotion. Now, the passion-ate missive is only a “send button” away from delivery

by e-mail. One must ask, have professionalism and civility suffered by such “advances” in technology?

Additionally, one must ask: has the immediacy of modern communication technology positively or negatively impacted the quality of lawyers’ profes-sional lives? Have we created an “electronic tether” to which the lawyer is always attached, with the expecta-tion that the lawyer is never out of reach, and that e-mails and phone calls will be answered immedi-ately? Does the capability to forward or send copies of e-mails to many recipients add value to information or create information overload?

Similarly, advances in technology have allowed “virtual” meetings where participants may or may not see one another on a screen. Are attitudes changed and communication affected by the lack of personal contact? Surely, there are efficiencies that accrue, but is something lost as well?

What expectations of privacy are reasonable when a communication method can be instantly replicated by forwarding an e-mail? As some very embarrassed people have found out, what may be intended to be private may travel at the speed of light around the world in a matter of minutes. Because we know this technological possibility, are there enhanced ethical requirements imposed upon lawyers to assure confidentiality of client communications?

Does this new technological age require counseling of clients regarding their record keeping, storage practices and retention policies? Are there new areas of training needed for the client’s employees or the lawyer’s staff?

And what about substantive legal questions exacer-bated by the Internet like: Can you serve process by e-mail? Are jurisdictional issues created? What about choice of law? What about attorney advertising and solicitation? Do Internet communications affect when an attorney-client relationship is formed? What about unauthorized practice of law in other jurisdictions? Which disciplinary system is charged with supervision? Does a lawyer risk vitiating malpractice coverage?

Advances in technology have reaped great benefits for mankind. At the same time, it has created new ethical and professional challenges for us all. In this issue of The Bencher, we explore some of these issues. ◆

3The Bencher ◆ November/December 2010 ◆ www.innsofcourt.org

Feature Articles■ Complex Ethical Issues of Social Media Margaret (Molly) DiBianca, Esq. .................................. 8

■ Transparency in E-Discovery: No Longer a Novel ApproachMichael J. Gray, Esq. and Emmy H. Koh, Esq. ..........12

■ Cloud Computing—Panacea or Ethical “Black Hole” for LawyersKevin F. Brady, Esq. .........................................................16

■ Electronic Discovery and Social Networking SitesFrancis G.X. Pileggi, Esq. ...............................................19

■ Judicial Ethics, The Internet, and Social MediaProf. James J. Alfini ........................................................22

Ethics■ Second Circuit Disqualifies Law Firm

for Representation Adverse to Client’s Subsidiary

Francis G.X. Pileggi, Esq. . ................................................ 5

Regular Features■ Inn the News................................................................ 3■ Profiles in Professionalism .....................................25■ Program Spotlight ...................................................27

I N T H I S I S S U E …

I N N T H E N E W S

We here at the American Inns of Court are always looking for new ways to foster excellence in

professionalism, ethics, and civility in our members and in the legal profes-sion. We also want to be able to listen to you, our members, listen to what you are talking about and join those conver-sations you might be having. Whether those conversations are with members of your local Inn or with other Inn members across the country, we want to participate.

One way for us to do that is to use new tools or technologies when they become available. Social media offers a number of new ways for us to engage with our members. Through the use of our Web site, our Facebook page and our Twitter account, we are bringing together people that share a common interest in the American Inns of Court and bringing together people that have a passion for improving the quality of professionalism and civility in the legal profession.

For more about us, visit our Web site at www.innsofcourt.org

Follow us on Twitter. Our handle is @innsofcourt. Use the hash tag #innsofcourt when tweeting about what’s happening at your Inn.

Check out our Facebook page at www.facebook.com/AmericanInnsofCourt.

And coming soon, we will have a private group in Martindale Hubbell Connected. If you don’t already have a profile on Connected, it’s easy and free to set one up. Just go to http://community.martindale.com to join, and then keep an eye out for the announcement of our new American Inns of Court group.

Spread the word and we will see you online! ◆

TM

We Are Social—Connect with us 24/7

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I N N T H E N E W S

American Inns of Court are a great tradition in law, and what better way to appreciate

that tradition than to visit the very places of the beginning?

This year the Vassar B. Carlton American Inn of Court of Melbourne, Florida, offered a trip to London, England and Dublin, Ireland. The main purpose was to visit the Honourable Society of the Middle Temple in London and the the Honorable Society of King’s Inns in Dublin, to visit their courts and to meet colleagues.

The trip was organized by Inn President, Judge Kelly McKibben. Also attending were her husband Scott, Senior Judge Clarence and Shirley Johnson, Chief Judge Preston and Betts Silvernail, Judge Tonya and Giles Rainwater and attorney Robin Petersen.

The group participated in a guided tour of The Tower of London, Westminster Abbey, a view of Parliament, and the changing of the guards at Buckingham Palace.

The group’s stop at The Honourable Society of the Middle Temple, one of the four great Inns

of Court in London, was impres-sive. The Middle Temple and the nearby dining hall are so very special, for the ancient carvings and the stained glass, as well as the ancient traditions embodied on all sides. They were privileged to tour the Temple and to luncheon in the same hall used by famous lawyers, judges, kings, and queens.

The tradition of Inns of Court was also established in Ireland. Indeed members of the The Honorable Society of King’s Inns in Dublin are often also members of one of the four London Inns. They met the Under Treasurer of the Inn, Camilla McAleese, and received a tour of the spectacular King’s Inn, itself replete with ancient history and tradition.

After the tour of the Inn, Camilla set them on their way to lunch at Hanley at the Bar, a restaurant where the solicitors and barris-ters gather, and afterwards to tour the “Four Courts”, the main courts in Dublin. At lunch, the group’s paths fortuitously crossed

with a young first year lawyer, Conor Nelson. With typical Irish hospitality he volunteered to take the group to the courts, and also escorted them to the new criminal courts building. Conor arranged for the group to observe a murder trial and to meet the presiding judge, The Honorable Mr. Justice Patrick J. McCarthy.

From Inns in the Old World, where by virtue of a fine legal and philosophical education, “benchers” there became “framers” in the New World, of a new philosophy of freedom and independence. And in the Inns of the beginning, we discover ourselves. The Inns of today are still places of learning; places where pupils learn law and ethics from barristers and masters, break bread in a collegial setting, and participate in legal exercises. In the Inns of the beginning, we discover Inns of today. ◆

The Vassar B. Carlton American Inn of Court

Members of the Vassar B. Carlton AIC of Melbourne, FL, at the Royal Courts of Justice in London, England. From left to right, Circuit Judge Tonya Rainwater, Chief Judge Preston Silvernail, Attorney Robin Petersen, Circuit Judge Charles Roberts, Shirley Johnson and husband Retired Judge Clarence Johnson, Scott Crandall and wife County Court Judge Kelly McKibben, President of the Carlton Inn.

Group having dinner on their first night in Dublin, Ireland. From left to right, Circuit Judge Tonya Rainwater, Betts Silvernail, Chief Judge Preston Silvernail, County Court Judge Kelly McKibben, Scott Crandall, Retired Circuit Judge Clarence Johnson, Shirley Johnson, Circuit Court Judge Charles Roberts and Attorney Robin Petersen.

NOTE: This article was edited to fit. For the full text of the article please visit our Web site: http://tinyurl.com/2dwv6xl.


E T H I C S C O L U M NFrancis G.X. Pileggi, Esquire

Second Circuit Disqualifies Law Firm for Representation Adverse to Client’s Subsidiary

A parent company and its subsidiary may be considered one client for disqualification purposes, and may be the basis for disqualify-

ing a law firm that represents the parent company but at the same time is adverse to that subsidiary in concurrent representation. This was the reasoning of the U.S. Court of Appeals for the Second Circuit in GSI Commerce Solutions, Inc. v. BabyCenter, L.L.C., __ F.3d __, 2010 WL 3239436 (2d Cir. 2010).

BackgroundBabyCenter, L.L.C. is a wholly-owned subsidiary of Johnson & Johnson, Inc. (“J&J). The law firm involved in this case represented J&J at the same time it represented GSI Commerce Solutions, Inc. in litiga-tion adverse to BabyCenter. J&J, which the law firm represented in other ongoing but unrelated matters, and BabyCenter objected to the representation of GSI by the law firm. The U.S. District Court for the Southern District of New York disqualified the law firm from the concurrent representation and the Second Circuit affirmed.

J&J entered into a fee agreement with the law firm in which the law firm defined the scope of its representa-tion as limited to compliance matters involving data protection regulations in the European Union. This agreement specifically provided that J&J waived any conflicts related to the law firm’s potential adverse representation in patent litigation for Kimberly-Clark that may have been adverse to an affiliate of J&J named McNeil PPC, Inc. In addition to waiving potential conflicts regarding patent matters for Kimberly-Clark, J&J also had agreed to a “standard addendum” in the fee letter that clarified that the representation of J&J by the law firm did not include a representation of any of its affiliates or subsidiaries, directors, officers, members, or any other variations or agents of the parent entity. It also clarified that the attorney-client relationship will be deemed terminated upon the completion of the limited engagement whether or not a letter was sent to confirm the termination of the representation. Nonetheless, the law firm did represent BabyCenter in privacy-related matters although that represen-tation was unrelated to the litigation involving an E-Commerce Services Agreement between BabyCenter and GSI, which is the subject of the litigation about which the disqualification motion pertains. The court also observed that the law firm did not appear to receive any confidential information relevant to the agreement between BabyCenter and GSI.

The court found that BabyCenter shared the same legal department as J&J and it also relied on J&J for accounting, audit, cash management, employee benefits, finance, human resources, information technology, insurance, payroll, and travel services.

AnalysisRelying on several decisions from the Second Circuit, the court stated that the mere violation of the state disciplinary codes would not necessarily warrant disqualification. Rather, disqualification would be warranted only if the “attorney’s conduct tends to taint the underlying trial.” One established ground for disqualification is concurrent representation of one existing client in a matter adverse to another existing client. (citing Cinema 5, Ltd. v. Cinerama, Inc., 528 F.2d 1384, 1387 (2d Cir. 1976)). The court referred to the ABA Model Rule of Professional Conduct 1.7, comment 34 (2006), for the position that a “lawyer who represents a corporation or other organization does not, by virtue of that representation, necessar-ily represent any constituent or affiliated organiza-tion, such as a parent or subsidiary.” This comment refers to the “entity theory” of representation but the comment also notes that an attorney may not accept representation adverse to the affiliate of a client if “circumstances are such that the affiliate should also be considered a client of the lawyer….” Id.

The court concluded that the focus in the analysis should be “on the reasonableness of the client’s belief that counsel cannot maintain the duty of undivided loyalty it owes a client in one matter while simultane-ously opposing that client’s corporate affiliate in another.” (citations omitted.) The factors considered by other courts in determining whether a corporate affiliate conflict exists include the following: (i) the degree of operational commonality between affiliated entities; and (ii) the extent to which one depends financially on the other. Other courts have suggested that the status of an affiliate as a wholly-owned subsidiary of the client may suffice to establish a corporate affiliate conflict. (citing Carlyle Towers Condo Association, Inc. v. Crossland Savings, FSB, 944 F.Supp. 341, 346 (D.N.J. 1996)).

In the instant case, the court reasoned that BabyCenter substantially relied on J&J for an extensive array of services and support. Second, the court relied on the fact that both entities use the same in-house legal department to handle their

Continued on the next page.


legal affairs, and a member of the legal department from J&J serves on the board of BabyCenter. Finally, the court emphasized that BabyCenter is a wholly-owned subsidiary of J&J.

Importantly, the court also concluded that J&J did not waive the corporate affiliate conflict as part of the fee agreement with the law firm, despite a related limited waiver that did not apply to the subsidiary or the issue involved in this case. Although the court referred to some commentary and cases that allowed a waiver of a conflict involving a subsidiary, no such waiver was clearly obtained in this matter.

The court concluded by explaining that the representation of an existing client adverse to the subsidiary of another existing client implicates the duty of loyalty, and there was no waiver of that duty that would prevent disqualification here.

ComparisonOther courts have reached similar conclusions when a law firm did not obtain the necessary waiver in connection with claims against an affiliate of a company that the firm had represented. See Board of Managers of Eleventh Street Loftominium Association v. Wabash Loftominium LLC, 2007 WL 2416817 (Ill. App. 1 Dist. Aug. 27, 2007). But compare, Boston Scientific Corporation v. Johnson & Johnson, Inc., 647 F.Supp.2d 369 (D. Del. 2009) (court denied a motion to disqualify

a law firm from representing Boston Scientific in claims against Wyeth despite the same firm’s representation of Wyeth subsidiaries in other matters and reasoned that despite violation of Rule 1.7, disqualification was not warranted.) See Elonix I.P. Holdings, Ltd. v. Apple Computer, Inc., 142 F.Supp.2d 579 (D. Del. 2001) (separate offices of same large firm representing and suing international corporation in unrelated matters, would not be disqualified on conflict of interest basis.) See generally PharmAthen, Inc. v. SIGA Technologies, Inc., 2009 WL 2031793 (Del. Ch. July 10, 2009) (court focused on contacts between the client and the lawyer to determine whether it was reasonable for the client to believe that the attorney was acting on its behalf as counsel in the absence of a formal retainer agreement.)

Although it was mentioned in the opinion, the court in the GSI case did not devote a substantial portion of its analysis to addressing the factors that would warrant disqualification even if the applicable Rules of Professional Conduct were violated. Some of the Delaware decisions cited above focus substantially on that aspect of a motion to disqualify counsel. It is not clear whether Delaware courts would reach the same conclusion as the GSI court. ◆Francis G.X. Pileggi is the founding partner of the Wilmington, Delaware, office of Fox Rothschild LLP, an AmLaw 200 firm. His blog at www.delawarelitigation.com summarizes all the key decisions on corporate and commercial law from the Delaware Court of Chancery and Delaware Supreme Court.

Ethics Column continued from page 5.

What’s on Your Mind?

For more information and submission guidelines, please visit www.innsofcourt.org or send an e-mail to Rita Zimmerman at [email protected].

You are invited to submit

original unpublished

articles to be considered

for publication in

The Bencher.

Upcoming Bencher Deadlines and Themes:

March/April 2011THEME: Lawyers Who Made a DifferenceDEADLINE: December 1, 2010

May/June 2011THEME: Professional Skills ProgramsDEADLINE: February 1, 2011

More themes coming soon!


Early registration opens November 1, 2010 for the Symposium on the Status of the Legal Profession: Facing the Challenges of the 21st Century to be held at Georgetown

University Law Center March 31–April 2, 2011. The symposium is presented by the American Inns of Court and Georgetown University Law Center with assistance from the Honourable Society of the Middle Temple in London.

Special presenters will include Justice Sandra Day O’Connor, Justice Stephen G. Breyer and

Lord Nicholas Phillips, President of the Supreme Court of the United Kingdom.

This Symposium will provide Inn leaders and members opportunities to meet and exchange ideas while fulfilling continuing legal education requirements coordinated by Georgetown University Law Center.

For registration materials and information regarding this exciting opportunity please visit our Web site www.innsofcourt.org/symposium.

Symposium on the Status of the Legal Profession: Facing the Challenges of the 21ST CenturyGEORGETOWN UNIVERSITY LAW CENTER | WASHINGTON, DC | APRIL 1–2, 2011

Early registration opens November 1, 2010

This is one event you will not want to miss.


Complex Ethical Issues of Social Media

BY MARGARET (MOLLY) DIBIANCA

As the popularity of online social networking continues to rise, so do the number of stories involving the online misadventures of legal professionals. Lawyers who have been very pro-active with social

media may be the most aware of such stories, if only because they receive tremendous attention on blogs and Twitter. But, what about lawyers who do not use social media? It may be surprising to some but social media presents ethical risks even to those lawyers who do not participate in it.


The Ethical Lawyer Does Not Ignore Social Media CompetencyOne interesting, albeit controversial, question is whether our ethical duties may require lawyers to be adept in social media. Rule 1.1 of the ABA Model Rules requires lawyers to be competent in their represen-tation of the clients. Has social media become so engrained in contemporary society that a lawyer who elects to ignore social media altogether may be unable to provide truly “competent representation?”

Comment 6 instructs that lawyers “should keep abreast of changes in the law and its practice.” This suggests that the duty of competence includes a duty to stay current in not only the substantive aspects of the area of law in which one practices but in the procedural aspects, as well. For example, the American Academy of Matrimonial Lawyers reports that 66% of divorce attorneys use Facebook as their primary source for online evidence. Based on this statistic, can a family-law practitioner fulfill his duty of competency if he never incorporates searches of online social network-ing sites as part of his investigative efforts in divorce cases? Perhaps the competency standard is not yet this high. But, if the use of social media tools continues to increase as expected, it may be possible that, soon, a basic awareness of social media may be essential to the competent practice of law.

DiligenceEven if the competency standard does not require that attorneys be familiar with social media, it may be required by the duty of diligence as provided by Model Rule 1.3. Comment 1 provides that a lawyer should “act . . . with zeal in advocacy upon the client’s behalf.” If the diligent attorney must be zealous in pursuing a matter on his client’s behalf, it seems possible that more than familiarity may be required—actual use of social media may be necessary.

Take, for example, the divorce scenario discussed above. If more than half of divorce attorneys say that Facebook is their best source for online evidence, then failure to check the site for evidence about your client’s soon-to-be-former spouse may constitute a failure to perform due diligence. A divorce attorney who ignores Facebook and other social network-ing sites as a source of possible evidence could be compared to a prosecutor who fails to conduct a criminal background check on a defendant’s key alibi witness. Both, it could be argued, may be in violation of Model Rule 1.3.

This gives rise to a different diligence issue, as well. Specifically, whether the duty of diligence requires a lawyer to warn his client against posting potentially

damaging content to her Facebook page. If we assume that the competent opposing counsel is almost certain to search online for information about your client, it seems to follow that you should advise your client not to post information or pictures that could negatively impact her case.

Taking the idea a step further, it could be argued that the duty of diligence requires a lawyer to monitor the Internet for potentially damaging information about his client. A lawyer can monitor the Web for his client’s name using Google Alerts, which is a free tool and takes just minutes to set up. Once an Alert is created, the lawyer will receive automatic updates any time new information is posted containing the client’s name.

If the client does not heed the advice of her diligent counsel, though, and posts pictures that, perhaps, do not cast her in the most favorable light, there could be severe consequences for her case. But her lawyer warned her—isn’t that sufficient? Perhaps not. Perhaps the duty of diligence requires the lawyer to ask that the client accept him as a Facebook friend, thereby enabling the lawyer to look for himself and make a determination about whether any of the client’s postings are potentially harmful. After all, “appropriate” is an entirely subjective standard.

The Ethical Lawyer Regards Social Media As EvidenceSpoliationThe ethical quandaries do not stop there. Suppose you discover that your client’s Facebook page does, in fact, contain several unsavory images or comments that the opposing party would be delighted to use in litigation. Your initial reaction upon viewing this potentially negative evidence may be to instruct the client to delete the content or even her Facebook account. Model Rule 3.4(a) may prohibit the lawyer from making this recommendation.

Model Rule 3.4(a) prohibit lawyers from unlawfully altering or destroying evidence and from assisting others from doing so. Lawyers have an ethical duty to preserve electronic evidence, including social networking profiles. And the failure to preserve can lead to significant sanctions. Instructing a client

Lawyers have an ethical duty to

preserve electronic evidence, including

social-networking profiles.



to delete evidence, including the client’s Facebook page, may constitute spoliation of evidence, which could result in an adverse-inference instruction to a jury or sanctions against the attorney.

The better alternative is to have the client set her profile page as “private.” The opposing party will not have direct access to the contents of her page but could request the evidence through formal discovery channels. That is, of course, if the opposing counsel is diligent.

RelevancyModel 4.4(a) prohibits a lawyer from using “means that have no substantial purpose other than to embarrass, delay, or burden” in representing a client. Thus, a lawyer may be limited in how he uses what he finds as the result of an online investigation. In other words, just because it’s “juicy” doesn’t mean it’s relevant to the case or ethical to use.

For example, imagine a worker’s-compensation claimant who alleges to have suffered an on-the-job back injury. He claims that his injury precludes him from enjoying his favorite hobby, deep-sea fishing. You discover a video on YouTube of a deep-sea fishing competition, clearly a participant, being interviewed at the start of the event. This evidence would certainly be relevant in the discovery context and one could imagine its purpose for impeachment, as well.

But what if there was a second video of the same interview but posted on YouTube by a different user. The quality of the second video is not quite as good. But it runs longer than the first and, at the end of the clip, the plaintiff gets a good-luck-kiss from a beautiful woman, who, it turns out, is not the plaintiff’s wife. You show the plaintiff both clips at his deposition. He responds with shock to both but is visibly upset when he sees the playback of his special moment shared with his paramour.

Before trial, you tell the plaintiff’s lawyer that you plan to use the second video as evidence. You pick the second video over the first, despite its lesser quality, because you think it will encourage the plaintiff to settle. Under these facts, you risk violating Model Rule 4.4(a) because the true purpose of using the video is to embarrass the plaintiff by exposing his extra-marital affair.

The Ethical Lawyer Ensures That Those He Supervises Understand Social MediaUnderlying each of these duties are Model Rules 5.1 and 5.3, which hold a lawyer accountable for the unethical conduct of a person for whom he has supervisory responsibility. Model Rule 5.1 requires

that a lawyer with direct supervisory authority over another lawyer make “reasonable efforts” to ensure that the other lawyer complies with his ethical duties. Model Rule 5.3(a) requires those lawyers who manage a firm “make reasonable efforts” to ensure that the firm has reasonable measures in effect to assure that lawyers comply with their ethical duties. And Model Rule 5.3(b) holds a lawyer responsible for the unethical conduct of his nonlawyer assistant.

The broadest implication of this subset of rules involves employee policies adopted by law firms. A law firm that has no social media policy or guidelines in place would seem to risk violating Model Rule 5.3(a).

Worse yet is the firm that makes no effort to educate its lawyers about the ethical risks inherent in social media. Just as firms warn their lawyers about the latest fraud schemes being perpetrated via the Internet, so should firms warn lawyers about the dangers of careless use of social media. And Model Rule 5.3(c) requires the firm to educate its non-lawyer personnel, as well.

The Pennsylvania Ethics Committee addressed a lawyer’s ethical obligations in the context of non-lawyer staff who search for potential litigation evidence on social networking sites. The committee concluded that it would be unethical for a lawyer to instruct (or permit) a non-lawyer personnel to attempt to “friend” a non-party witness for the purpose of accessing information on the witness’ Facebook page. Unless the lawyer’s agent expressly disclosed who he was and the purpose of his friend request, the lawyer would be engaged in impermissible deception in violation of Model Rule 8.4. Phila. Bar Assoc. Op. 2009-02.

The advisory opinion implicates several of the rules addressed above. For example, if the non-lawyer personnel had suggested the idea to the attorney, Model Rule 1.1 seems to require the attorney to at least understand the concept of “friending” before responding to the suggestion. Model Rule 1.3 seems to suggest that the diligent attorney would ask the non-party witness about her social networking use during her deposition and issue additional informa-tion via formal discovery requests where appropriate. And Rule 5.3 would seem to require that the attorney affirmatively communicate the holding of the Ethics Committee’s ruling to all non-lawyer personnel.

The Ethical Lawyer Understands the Impact of Social Media on Business DevelopmentThe aversion that many lawyers have to social media has led to an unusual type of ethical issue. Although some lawyers may not want to participate in social media, they (or someone above them in the law firm

Complex Ethical Issues continued from page 9.


hierarchy) realize the potential value of the medium as a business development tool. As a result, many lawyers rely on others for at least some portion of their business development efforts. For example, at some firms, attorneys’ LinkedIn profiles are created by the firm’s marketing department.

Profiles Created by LawyersOnline profiles are commonly used on social networking sites as the user’s online biography, similar to what one may find on the attorney’s firm Web site. Some profiles are more extensive than others, though. For example, on LinkedIn, users can post tremendous amounts of information in their profiles, making them look more like a resume. On Twitter, though, users get just 160 characters in which to write their “bio.”

A profile created by a lawyer on a social networking site must comply with the ethical rules on advertis-ing. Certainly, this may be reasonably obvious to a lawyer who regularly uses LinkedIn or Twitter. But this is not necessarily the case for a lawyer who creates an online profile in a short-lived moment of social media enthusiasm, but never visits the site again. Or, similarly, when the firm’s marketing department creates profiles on the behalf of the firm’s lawyers, none of who intend to participate in the social network’s online community.

Profiles Created by OthersIs the lawyer responsible for inaccurate or misleading information posted to his profile, even if it is posted by a third party? And what if the third party poster is anonymous? On the a lawyer-rating site Avvo.com, for example, “clients” can post anonymous “reviews” of lawyers. The creation of an online profile does carry ethical risks due to the ability of third-parties to post reviews, endorsements, or otherwise leave comments on the profile without the attorney’s consent. One easy preventative step is to include a disclaimer with any profile in which you hold yourself out as a lawyer. But a disclaimer may not always suffice.

The South Carolina Bar Association issued an advisory opinion in 2009, determining that a simple disclaimer on a lawyer’s profile may not be sufficient to satisfy the lawyer’s duty to avoid misleading or untruthful statements. S.C. Ethics Advisory Op. 09-10 (2009). The opinion indicates that a “client review” would actually constitute a “testimonial” or “endorsement” under Rules 7.1(d) and (b). In South Carolina, lawyers are prohibited from “allowing publication of” endorsements that are misleading or likely to create unjustified expectations. This phrase, the opinion concludes, means that lawyers will be responsible for what others post about them. According to the South Carolina opinion, once a lawyer claims or creates his profile, he becomes ethically

obligated to monitor it to ensure that it remains free of any prohibited advertisements by others.

Even an entire attorney profile can be “claimed” by a law firm without the attorney’s express consent. The firm need only complete a simple form letter, listing the attorneys for whom the firm is claiming their Avvo profile and identify a contact person at the firm who will be responsible for updating the profiles being claimed. Put differently, an administrative assistant in the marketing department of your firm could have created your profile and be authorized to make changes to it.

The potential ethical implications in this type of “ghostwriting” for online profiles of attorneys are numerous, if not obvious. As discussed above, even if the firm’s marketing department has been delegated the task of claiming and updating profiles for the firm’s attorneys, it is the ethical responsibility of each attorney to ensure that the information in the profile—and all comments posted to the profile—are not misleading or untrue. In addition to being responsible for monitor-ing his profile, it would seem that the lawyer, or at least the managing partners of the firm, would be responsi-ble for ensuring that those who are assigned the initial task of creating the profiles are knowledgeable about what is and is not ethically permitted.

This type of third party posting was a central issue in disciplinary proceedings brought against a Florida judge, who was reprimanded for representations she made in her 2008 campaign. Specifically at issue was the use of the word “re-elect” in the link to a campaign commercial posted on YouTube. The judge had been appointed in 2005, so the word, “re-elect,” was potentially inaccurate or misleading. The link and video had been posted by a political consultant without the judge’s knowledge but the judge took responsibility during disciplinary proceedings. In re Angela Dempsey, No. SC09-1747 (Fla. Feb. 4, 2010).

ConclusionAll lawyers should be cautious to comply with their ethical duties in the context of social media. Even those who do not participate in social media should be aware of the potential dangers that exist. The issues are many and complex and should be expected to change and develop with time. Until lawyers’ duty of competency require actual knowledge of social media, ethical best practices suggest that we familiarize ourselves with the medium at least enough to consider the issues in an educated manner. ◆

Margaret (“Molly”) DiBianca is an employment lawyer at Young Conaway Stargatt & Taylor, in Wilmington, Delaware, author of the Delaware Employment Law Blog, and member of the Richard K. Herrmann Technology AIC.


Transparency

in

E-Discovery:

No Longer a Novel Approach

By Michael J. Gray

and Emmy H. Koh


lthough litigation’s adversarial nature and the desire to keep decision-making close to the vest tend to cut against transpar-ency and cooperation in discovery, being

forthcoming and clear about electronic discovery reduces unnecessary court battles, eliminates possible sanctions and, in fact, often reduces the overall costs of discovery. Indeed, cooperation during discovery is not a novel idea. Rule 26(f) of the Federal Rules of Civil Procedure, amended in 2006, expressly provides that parties are required to meet and confer regarding “any issues about disclosure or discovery of electronically stored information,” and specifically, regarding the scope of discovery, the format of production and the assertion of privilege. Other states, such as California, have adopted rules mirroring these requirements. See California Rule of Court 3.724.

In 2008, the Sedona Conference—a nonprofit educational institute composed of jurists, attorneys and academics—issued its “Cooperation Proclamation,” a three page document calling on participants in the civil discovery process in the United States to “promote open and forthright information sharing, dialogue (internal and external), training, and the development of practical tools to facilitate cooperative, collabora-tive, transparent discovery.” The Proclamation goes on to state that: “Cooperation does not conflict with the advancement of their clients’ interests—it enhances it. Only when lawyers confuse advocacy with adversarial conduct are these twin duties in conflict.” Some may discount the pronouncement as impractical, but a closer evaluation of recent decisions reveals its wisdom.

Since the Proclamation’s publication, courts have increasingly demanded this cooperative approach to the discovery process, leading to negative consequences to those that did not. See, e.g., Rimkus Consulting Group, Inc. v. Cammarata, 688 F.Supp.2d 598 (S.D. Tex. 2010) (spoliation of evidence in bad faith led to adverse inference sanctions); Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Sec., 685 F.Supp.2d 456 (S.D.N.Y. 2010) (spoliation instruction and monetary sanctions were warranted against investors whose failure to preserve evidence amounted to gross negligence). As of May 31, 2010, more than 100 judges across the country have endorsed the Cooperation Proclamation and more than a dozen courts have cited to the Proclamation in their e-discovery opinions. Notably, in William A. Gross Constr. Assoc., Inc. v. Am. Mfg. Mut. Ins. Co., 256 F.R.D. 134 (S.D.N.Y. 2009), Magistrate Judge Andrew J. Peck—a leading jurist on electronic discovery and prolific writer on the topic—noted that: “It is time that the Bar—even those lawyers who did not come of age in the computer era—understand” that electronic discovery requires cooperation and

transparency between opposing counsel, as well as a working knowledge of how to preserve and produce electronically stored information.” Additionally, there has been a more frequent issuance of judicial opinions sanctioning parties for their failure to comply with their e-discovery obligations.

Transparency does not mean showing your cards as to the merits of the case or your work product; rather, it means that certain decision-making as to the scope and collection of electronic documents is best shared with your opponent and often is a point of negotiation. As one recent article points out: “[C]ooperation in discovery simply demands that parties and their counsel be knowledgeable about

their information management systems, the reposi-tories of relevant data (and those that are likely to yield the most relevant and accessible data), and the key players and custodians of information—and that they engage in an open and frank dialogue about these items to formulate a discovery plan that will permit a fair assessment of the case on the merits and be cost efficient. Toward a Less Hostile Discovery Process, Ariana J. Tadler, Kenneth J. Withers.

Specifically, attorneys should (1) try to reach to an agreement, early in the litigation, regarding the sources of relevant data sources as well as those that would be searched during the discovery process and (2) identify the methods that will be implemented in order to search for relevant information, discuss these methods with counsel and, on many occasions, agree to the selection of relevant search terms.

Exchange information regarding the sources of relevant electronic discovery and attempt to reach an agreement regarding which sources will be searched.Identifying and disclosing the relevant sources of electronically stored information (“ESI”) early on,

Transparency

in

E-Discovery:

A

“It is time that the Bar—even those lawyers who did not come of age in the computer era—understand” that electronic discovery requires cooperation and transparency between opposing counsel, as well as a working knowledge of how to preserve and produce electronically stored information.”



even those that will not be searched, and agreeing with the opposing party regarding the scope of searches, will avoid costly discovery disputes and allegations of spoliation, as well as streamline the discovery process.

For example, in Wells Fargo Bank, N.A. v. LaSalle Bank Nat’l Association, 2009 WL 2243854 (S.D. Ohio July 24, 2009), the court found that a plaintiff was not entitled to compel the costly discovery of backup tapes where the parties had failed to comprehen-sively discuss the sources of electronically stored information early on in the litigation, and the plaintiff filed a motion to compel these tapes four months after discovery closed, and one month after the plaintiff learned that the defendant had not searched the tapes for responsive information. In declining to “wade into the middle of the ESI dispute” at so late of a juncture in the case, the court noted that the parties’ Rule 26(f ) Report submitted at the start of the litigation referred only briefly, and quite vaguely, to ESI. The Rule 26(f ) report’s only reference to ESI provided:

The Parties anticipate electronically stored information in the form of e-mails, most of the documents that pertain to the two loans in this case, as well as some of the general documents that are expected to be produced. The Parties are currently discussing the feasibility of producing electronic versions of all materials that are produced in this case.

The court then stated that: “[t]he current dispute is a mild example of the sorts of problems which result when counsel do not deal systematically with ESI problems and possibilities at the outset of litigation, instead of filing one paragraph boilerplate statements about ESI and waiting for the explosion later.” The court then denied the plaintiff’s motion to compel, and also declined the parties’ cross-requests for expenses and attorneys fees stating that the parties “could have avoided the expenses of this Motion by conferring appropriately early in the case about ESI.”

Similarly, in Ford Motor Co. v. Edgewood Properties, Inc., 257 F.R.D. 418, 427 (D. N.J. 2009), the court,

in resolving a discovery dispute regarding the adequacy of a party’s document collection procedure, noted the desirability of parties meeting to address issues relating to electronic discovery early in the course of litigation. To that effect, the court, citing the Sedona Conference with approval, stated that “agreement by the parties at the outset as to the mode of collection would have been the proper and efficacious course of action.”

Attempt to reach an agreement as to the methods that will be implemented in search for relevant information, including the search terms that will be used to gather responsive documents.Reaching an agreement with the opposing party regarding any search and retrieval methodology, including any search terms to be used in culling the relevant information, often works best for the producing party. Recent decisions have shown that courts more often order parties to come to an agreement on the issue, and decline involvement in the process of developing these search methods. If the producing party does not reveal their search terms—a decision that will dramatically affect the scope and number of responsive documents—the party leaves itself open to later claims of hiding documents or spoliation. Such claims, which often are not discovered until much later in the litigation, may distract the court from the merits of the case and in some cases lead to drastic consequences, such as monetary sanctions, adverse inferences and even judgment being entered.

Some courts are often unwilling to take an active role in developing automated search methods, leaving the parties to their own devices. For example, in William A. Gross Constr. Assoc., Inc., 256 F.R.D. at 136, a disagreement arose between the parties regarding the use of appropriate search terms to segregate relevant e-mails from irrelevant e-mails. After being put in “the uncomfortable position of having to craft a keyword search methodology for the parties,” the court observed that “the best solution in the entire area of electronic discovery is cooperation among counsel.” Indeed, the court held that in formulat-

Identifying and disclosing the relevant sources of electronically stored information (“ESI”) early on, even those that will not be searched, and agreeing with the opposing party regarding the scope of searches, will avoid costly discovery disputes and allegations of spoliation, as well as streamline the discovery process.

Transparency in E-Discovery continued from page 13.


ing keyword searches for retrieval of ESI during discovery, the parties were required to cooperate, and, at a minimum, carefully craft appropriate keywords with input from ESI’s custodians regarding the words and abbreviations used in the searches. Moreover, the court required that the proposed methodology be “quality control tested” to ensure accuracy in the retrieval of relevant documents.

More recently, in Ross v. Abercrombie & Fitch Co., 2010 WL 1957802, *4 (S.D. Ohio May 14, 2010), the court was charged with resolving a dispute over whether the defendant had produced all relevant documents in response to a production request. The court discussed the difficulties it would have in determin-ing whether additional documents existed, and, if so, the best way for the defendant to go about finding them. In granting plaintiff’s motion to compel these documents, the court instructed the parties as follows:

To the extent that Abercrombie does believe that the documents may still exist, it shall, at the parties’ conference, tell plaintiff’s counsel how it would be possible to do a search for them, and how much, in terms of both time and money, such a search might cost. The parties are encour-aged to work out the details of such a search…. If this process does not produce an agreement, the parties shall contact the Court to arrange for a telephone conference at which the issue can be discussed further.

Similarly, in Burt Hill, Inc. v. Hassan, 2010 WL 419433, *8, 10 (W.D. Pa. Jan. 29, 2010), the plaintiff objected to the overbreadth of one of defendant’s document requests. While the court agreed with the plaintiff that defendant’s request for production was exceedingly overbroad, the court stated that the parties’ disagreement “elude[ed] meaningful adjudication” and ordered the parties to “promptly meet and confer to determine whether the scope of Defendants’ [production request could] be narrowed, and/or whether [the parties could] agree upon computer ‘search terms’ [plaintiff could] use to identify potentially responsive documents.”

And, In re Direct Southwest, Inc., FLSA Litigation, 2009 WL 2461716, at *2 (E.D. La. Aug. 7, 2009) illustrates the consequences when one party decides to go it alone and unilaterally determine the appropriate search terms to be used in ESI. Upon being called on to resolve a dispute over the appropriate terms to be used in a document retrieval search, the court, admonishing both parties for not resolving the dispute at the beginning of the discovery process, simply chose the plaintiff’s search terms over the defendant’s. The use of the plaintiff’s list of search

terms—which was “much more detailed” and covered “virtually all aspects of defendants’ business”—resulted in an estimated $100,000 of additional costs to the defendant. Moreover, in light of the fact that “the issue raised by this motion should have been resolved at the beginning of the discovery process and not at the end,” the defendant was given just 10 days to comply with the court’s order.

It should be noted that, before a party proposes search terms, it should investigate the possible results of using those precise terms. Courts hold the parties’ to their agreement. In Capitol Records, Inc. v. MP3 Tunes, LLC, 261 F.R.D. 44, 50-51 (S.D.N.Y. 2009), for example, a disagreement arose between the parties after they had reached agreement regarding certain search terms. The court held the parties to their bargain. The court stated,

Whatever the merits of [defendant’s] argument may be, [defendant] previously had agreed to limit Document Request No. 3…. Consequently, [plaintiff ] may restrict their production of e-mails responsive to the six search terms that [defendant] suggests to those that also contain the terms [previously agreed upon].”

Additionally, as to keyword searches upon which the parties could not agree, the court employed standards used to determine the discoverability of actual documents. Ordering the defendant to search the e-mail files of each custodian identified by the plaintiffs, the court held that defendant “ha[d] not shown that the production of all of the requested employees’ e-mail communications would be unduly burdensome or that a search of their files would not potentially yield relevant information.”

ConclusionSimply stated, judges more and more demand that parties cooperate and communicate with each other throughout the electronic discovery process. Failing to convert to this more transparent strategy puts you and your client at risk. ◆

Emmy H. Koh is an associate in the Labor & Employment practice group at Jones Day in Chicago, Illinois.

Michael J. Gray leads the Labor & Employment Practice in Jones Day’s Chicago, Illinois, office. As a leader in the area of electronic discovery and the use of technology in complex litigation, Michael speaks across the country to clients and members of the bar on the topic, writes on the practical implications of e-discovery obligations, and participates in the Firm’s e-Discovery Committee.


W ith the current status of the economy, the business community has been challenged to “increase efficiency, reduce costs and mitigate risks.” This is especially true for the

world of electronic information with sky-rocketing costs and ever-increasing risks associated with managing such information. Today, the business world is being overrun with offers by companies to provide “cloud computing services” as a panacea for all of the ills associated with managing information technology (IT). “The future is here and it is in the clouds” sounds both comforting and confusing. And yet the concept has caught on with many companies

as well as governments (federal and state) rushing to be part of this initiative.

Cloud computing is not a new concept, but rather one that has become a “hot topic” in the business world as a possible way for companies to offset the heightened pressures to cut costs and increase efficiencies regarding IT. Because this is such a hot business topic, the number of providers of cloud computing services is also growing on a daily basis and the faces are familiar—Microsoft, Google, Sun and Amazon just to name a few. And while there are significant short and long-term benefits to cloud

Cloud Computing— Panacea or Ethical “Black Hole” for Lawyers

By Kevin F. Brady


computing, there are some serious risks and ethical challenges that must be considered.

What is Cloud Computing? Cloud computing is the “virtualization of the computing process.” It is a type of outsourcing of IT. It separates the end user (customer) from the expensive end of the computing process—the capital investment needed for applications (software and hardware) to perform the computing—which are operated by a third-party service provider. The customer’s data is stored “in the cloud” (on the Internet) on information systems owned and operated by third-parties. End users or customers can access their data whenever and wherever they chose through the Internet. Customers pay for what they need to perform the function at hand; they don’t pay for services until they need to use them. This “pay as you go” process makes cloud computing scalable and flexible so that customers, for example, can use as much or as little storage as they need.

What are the Advantages?Cost. Cloud computing greatly reduces the large capital expenses associated with electronic data management—software, hardware and services. From acquisition costs to maintenance costs to IT personnel costs, cloud computing services enable the customer to shift those expenses on to the third-party providers.

Convenience and Flexibility. The cloud computing service provider gives its customers instant access to his or her data through the Internet. As the custom-er’s business needs change, the cloud computing service provider can help the customer keep pace with those changes because the resources the customer needs are already “in the cloud.” Timing and magnitude of the changes become irrelevant because the cloud computing service provider has those resources to meet those needs on demand. This can be very important in helping smaller companies compete with larger companies.

Location. Companies that manage their own data dedicate significant physical and financial resources making sure that their data is stored in a location that is compatible for the needs of the organization. This includes redundancy systems for disaster-recovery. With cloud computing, the customer does not have to concern itself with those issues because the company’s data is centrally stored at some remote location.

What are the Risks?Security/Privacy. This is the number one concern for most cloud computing customers. While the customer legally owns its data in the cloud, it does not have the level of “control” over its data that it

would if the data were handled in the traditional sense—stored within the customer’s infrastructure. Customers have to contact the third-party cloud computing service providers to get access to the company’s data which can certainly create some challenging and unusual issues that would need to be addressed before the data is stored.

Data Location/Movement. While data stored in the clouds resides on a server, the third-party service provider generally has the right to move data to maximize storage concerns. However, that could leave the owner of the data wondering where its data resides? It is not uncommon for third-party providers to store one company’s data at a location where many companies’ data (maybe even the data of a competitor) is also stored. There must be protocols in place to ensure that one company’s data is not commin-gled with data from another company. Moreover, there must be systems in place to prevent data being improperly accessed or removed by an unauthorized user. For purposes of litigation, location of data might be a critical factor in determining what law applies to the dispute or how easy it is to access the information.

The Service Provider. An integral part of the security issue is the third-party service provider. It is imperative that the service provider not only be reputable, it must be a reliable and dependable. The customer should spend time doing its due diligence before it entrusts its valuable information with the service provider.

Outsourcing and Ethical ConcernsWith any emerging technology, there are a number of ethical issues that lawyers must address and cloud computing is no exception. Because of the complex technical issues that are associated with using cloud computing, lawyers are and will be challenged to provide competent advice that safeguards their client’s most important information.

Because data security is the number one concern, lawyers need to approach the issue of cloud computing with great care. Rule 1.6 of the ABA’s Model Rules of Professional Conduct (“MRPC”), requires that a lawyer safeguard client confidences and confidential information. Comment 16 to Rule 1.6 states that “[a] lawyer must act competently to safeguard information relating to the representa-tion of a client against inadvertent or unauthorized


With any emerging technology, there are a number of ethical issues which lawyers must address and cloud computing is no exception.


disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer’s supervision.” Comment 17 states that “the lawyer must take reasonable precautions to prevent the informa-tion from coming into the hands of unintended recipients.” Reasonableness is the key. A lawyer will not be required to use special security measures if the method of communication affords a reason-able expectation of privacy. As noted in Comment 17, “special circumstances, however, may warrant special precautions” and the factors to be considered include “the sensitivity of the information and the extent to which the privacy of the communication is protected by law or by a confidentiality agreement.”

Outsourcing is Nothing New to Law FirmsThe idea that law firms will give confidential client information to third-party vendors is not new. In the paper world, law firms routinely sent documents to vendors for the preparation and copying of discovery documents for production. Client confidences were

kept secure through contrac-tual arrangements between the law firms and the vendors. As a result, there is nothing unethical about a lawyer outsourcing non-legal services provided that the outsourcing lawyer provided competent representation under MRPC Rule 1.1—meaning that lawyer possessed “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”

MRPC Rule 1.15 also requires a lawyer to preserve client property, which includes client information, from risk of loss due to destruction, degradation or loss. Therein lies the challenge with cloud computing.

Under MRPC Rule 5.3(b) a lawyer having direct supervisory authority over the non-lawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obliga-tions of the lawyer. If a law firm retains a cloud computing service provider to store client confiden-tial information, the lawyer is required to provide appropriate instruction and supervision concerning the ethical aspects of their employment, particularly regarding the obligation not to disclose information relating to representation of the client. But how does the lawyer advise the client with respect to the risks of data security, unauthorized access or negligence on the part of the cloud computing service provider? How can the lawyer advise the client as to security risks or reasonably supervise the operations of the cloud computing service provider when the lawyer

(and the client) may not know where the data resides or if it is being commingled. If the risk cannot be eliminated, can it be minimized?

There is some guidance available for lawyers. The North Carolina Bar Association in April 2010 issued a Proposed Ethics Opinion on cloud computing. See, (http://www.ncbar.gov/ethics/propeth.asp). Under that Proposed Opinion, “a law firm may contract with a vendor of software as a service provided the risks that confidential client information may be disclosed or lost are effectively minimized.”

Steps to Protect Your Information The most critical part with respect to cloud computing is the agreement between the customer and the third-party service provider. Great care should be taken in drafting such an agreement. To avoid costly mistakes, a customer must craft an agreement that addresses anticipated problems such as:

• Who owns the data?

• Where will the data reside and will it be backed up?

• Does the customer have the right to approve in advance any transfer of the data to another state or country?

• Who will have access to the data and will there be different levels of access?

• Who will supervise the project and will there be monitoring and auditing of the policies and procedures?

• What procedures will be followed when the contract terminates?

• What security measures are in place?

For reference purposes only, an example of Google’s cloud computing contract, Google Apps Premier Edition Online Agreement can be found at: (http://www.google.com/apps/intl/en/terms/education_terms.html)

ConclusionWhile the future of cloud computing is bright, there are some cloudy issues lurking about especially for lawyers. The potential for great savings is very real and at the same time there is potential for great risk. Protocols and best practices still need to be developed. Lawyers would also be well-served with more input from state ethics opinions. ◆

Cloud Computing continued from page 17.

While the future of cloud computing is bright, there are some cloudy issues lurking about especially for lawyers.

Kevin F. Brady is a Litigation Partner and Chair of the Business Law Group of Connolly Bove Lodge & Hutz LLP in Wilmington, Delaware. He has been involved in the American Inns of Court locally and nationally since 1984 and is a founding member of three Inns in Wilmington including the Richard K. Herrmann Technology Inn of Court. He is also a former member of the Board of Trustees of the American Inns of Court Foundation.


Social networking Web sites are nearly ubiqui-tous and increasingly prevalent as a business tool that has become an important aspect of doing business for many industries and individ-

uals. With more than 500 million users on Facebook, 70 million users on LinkedIn, and 190 million users on Twitter, now more than ever people and businesses are interacting and connecting with each other through social networking Web sites. Broadly defined, social networking Web sites allow users to create online profiles where they can choose to display their business and personal information to be accessed by other users in order to “make friends” and interact with the online communi-ty.1 For instance, users of Facebook typically post their personal and/or business interests, contact information, photographs, and videos to share with

1 Aaron Blank, Comment, On the Precipe of E-Discovery: Can Litigants Obtain Employee Social Networking Web Site Information Through Employers?, 18 COMMLAW CONSPECTUS 487 (2010).

their friends and/or prospective business contacts. Twitter users interact by posting “tweets”, short 140 character messages.2

Many advertisements now include the icons for Facebook and Twitter to encourage customers to interact with the company online. Given the breadth of these online communities and the wealth of information to which they provide access, it is no surprise that lawyers are using information gathered on these sites in business litigation and other types of legal disputes.

Recent Court DecisionsPhotos, postings, e-mails, and other information from social networking Web sites are increasingly becoming the subject of formal discovery requests. In Barnes v. CUS Nashville, LLC,3 in order to expedite

2 See id.3 No. 3:09-cv-00764, 2010 WL 2265668, *1 (M.D. Tenn.

June 3, 2010).

Electronic Discovery and Social Networking SitesBy Francis G.X. Pileggi



a Facebook subpoena, the magistrate judge offered to create a Facebook account in order to “friend” plaintiffs and gain access to the photographs, captions, and comments subject to the subpoena. In Treat v. Tom Kelley Buick Pontiac GMC, Inc.,4 plaintiff sued her employer for wrongful termination and sexual harass-ment. The sexual harassment allegation was based upon an allegedly inappro-priate sexual story told to plaintiff by her superior. To corroborate her version of the facts, plaintiff produced during discovery a printout of a “less graphic” version of the story posted by her superior on his MySpace page.5

Generally, courts allow discovery of personal information posted on a social networking Web site if it is relevant to

the litigation and the discovery request is narrowly tailored.6 The Federal Rules of Civil Procedure allow for a broad scope of discovery such that “any nonprivileged matter that is relevant to any party’s claim or defense” is discoverable.7 As with any case, relevance is fact specific. In many cases information on social networking Web sites may be relevant,8 in others evidence of online connections may not be relevant. For instance, in Quigley Corp. v. Karkus9 the court held that Facebook “friends” status of the co-defendants held no significance in the litigation, which involved allegations that shareholders of a corporation violated the Securities and Exchange Act by refusing to disclose their relationship.10

Although communications and posted data on social networking Web sites may be relevant, parties may not compel requests for overly broad discovery of such information. In Mackelprang v. Fidelity National Title Agency of Nevada, Inc.,11 plaintiff alleged she had been sexually harassed by her

4 No. 1:08cv173, 2010 WL 1779911 (N.D. Ind. Apr. 30, 2010).5 See id. at *5.6 See Beth C. Boggs and Misty L. Edwards, Does What

Happens on Facebook Stay on Facebook?: Discovery, Admissibility, Ethics, and Social Media, ILL. BAR JOURNAL (Vol. 98), at 366 (July 1, 2010).

7 See Fed. R. Civ. Pro. 26(b)(1).8 See e.g., Beye v. Horizon Blue Cross Blue Shield of New

Jersey, 568 F.Supp.2d 556 (D.N.J. 2008); Ledbetter v. Wal-Mart Stores, Inc., 2009 WL 1067018 (D. Colo. April 21, 2009).

9 No. 09-1725, 2009 WL 1383280, at *3-5 (E.D. Pa. May 15, 2009).

10 See id. at *5, n.3. 11 No. 2:06-cv-00788-JCM-GWF, 2007 WL 119149, *1 (D.

Nev. Jan. 9, 2007).

employer. Hoping to reveal plaintiff was having an extra-marital affair, defendant sought all records, including private e-mail messages, on plaintiff’s MySpace page. Denying defendant’s motion to compel, the court noted the broad discovery request (i.e., all communications) and refused to allow defendant to engage in a fishing-expedition. Defendant was barred from obtaining “private e-mail messages between Plaintiff and third persons regarding allegedly sexually explicit or promiscu-ous e-mails not related to Plaintiff’s employment with Fidelity.”12 The court, however, did not prohibit defendant from obtaining relevant communications by serving narrowly tailored discovery requests.

Other courts are more reluctant to allow discovery of private e-mail messages on social networking Web sites, than they are profile information. In Crispin v. Christian Audigier, Inc.,13 the Central District of California granted in part plaintiff’s motion for reconsideration of third-party subpoenas of social networking Web sites. Defendants served subpoenas duces tecum on four social networking Web sites, including Facebook and MySpace, seeking plaintiff’s subscriber informa-tion and all communications relating to the lawsuit.14 Finding social networking Web sites to be electronic communication services (“ECS”) providers and private messaging on such Web site to be ECS under the Stored Communications Act,15 the court quashed the Facebook and MySpace subpoenas to the extent they sought private messaging.16

Of course, as U.S. v. Drummond17 points out, admissibility of such information is subject to the Rules of Evidence. In Drummond, the court considered defendant’s motion to exclude from evidence photographs from his MySpace page. The photographs at issue depicted the defendant holding large quantities of cash and/or pointing a gun at the camera.18 Defendant, who was facing drug trafficking charges, argued that these photographs were prejudicial. The court found the photographs relevant and prejudicial, but required more informa-tion in order to determine if the probative value of the evidence outweighed the danger of prejudice, and reserved ruling on admissibility.19

12 See id. at *8.13 No. CV 09-09509 MMM (JEMx), 2010 WL 2293238,

*1-2 (C.D. Cal. May 26, 2010) (Motion granted in part, reversed in part, vacated in part, and remanded).

14 See id. at *1.15 18 U.S.C. § 2701(a)(1).16 See id. at *10, *16.17 No. 1:09-cr-00159, 2010 WL 1329059 (M.D. Pa. Mar. 29,

2010).18 See id. at *1.19 See id. at *2 (citing Fed. R. Evid. 403).

Electronic Discovery continued from page 19.


Rules of Civil ProcedureIn addition to the rules governing relevancy and prejudice, information on social networking Web sites are subject to the rules governing electronically stored information. Federal Rule of Civil Procedure 34 provides that a party may request any electroni-cally stored information that is within the “posses-sion, custody, or control” of the responding party.20

As discovery of information on social network-ing Web sites becomes more prevalent, litigators must become savvy about the techniques used in searching and preserving personal information on these Web sites. Print-outs of screen shots are an archaic means of preserving data, especially when people are constantly updating their Facebook pages, both adding and deleting information. Third-party providers sell lawyers the tools to effectively archive, manage, and produce informa-tion from these ever evolving social networking Web sites.21 Theses companies employ new technologies in order to monitor and recover information posted on the sites.22 For instance, video cameras are used to monitor personal Web pages; “capturing software” records a user’s Internet activities; web-based tools provide access to information posted on Web sites in the past, but since deleted; and advances in search engines will provide greater searchability of personal information posted on social networking Web sites.23

More and more litigators are recognizing that Facebook, Twitter, and similar online communities are significant sources of information. Lawyers and investigators are using social networking Web sites to investigate parties, witnesses, potential jurors, judges and opposing counsel. Lawyers are conduct-ing searches via Google and Bing as well directly on the social networking Web sites themselves. And, as lawyers are going straight to the source, they are in turn raising legal ethics issues.

Ethical Considerations of Social Network DiscoveryIncreasingly, because businesses are marketing to other business and consumers through social networking Web sites, company policies governing

20 Fed. R. Civ. Pro. 34(a)(1)(A).21 Kroll Ontrack Web site, available at http://www.

krollontrack.com/about-us/.22 From the Investigator’s Notebook: Social Media Data

Collection Best Practices (June 2010), available at http://www.krollontrack.com/ii-article-0610/?news=US_InvIns_Jun_10.

23 See id.

electronic communications must evolve along with the technology, keeping an eye toward litigation and preservation issues.24 Target, Coca-Cola, Vanguard, Disney, Calvin Klein and many other major companies all have thousands of fans on Facebook. And, consumers can follow more and more companies on Twitter, such as Carnival Cruise Lines, Apple, Amazon.com, M&Ms, and The New York Times. Just as companies and business litigators face discovery preservation issues with company Web sites, e-mail correspondence and electronic documents, so too must companies be prepared to preserve and produce information on social networking Web sites they control, in order to prepare for potential litigation.

In addition, companies should be wary of what their employees are posting on the Internet, especially when discussing the company or its compet-itors, as the employer may be held liable and/or face significant backlash. In 2007, it was revealed that using a pseudonym, John Mackey, CEO of Whole Foods, had been posting disparaging remarks about Wild Oats Markets, Inc., a natural foods store, and competitor of Whole Foods.25 These postings raised SEC-related issues because Whole Foods was a publicly-held company.

To paraphrase Kevin O’Keefe, an expert on the use of the Internet by lawyers: “social media is here to stay.”26 Electronic data discovery (EDD) is a necessary part of a complete litigation strategy due to the large amount of electronically stored information (ESI) that is never printed in hard copy. So much ESI is now created on social media Web sites—which may not be available elsewhere, that a complete EDD plan must consider potentially relevant and useful ESI on social media Web sites that may help (or hurt) one’s case. ◆

24 See H. Christopher Boehning and Daniel J. Toal, Social Networking Data Presents New Challenges, 241 N.Y.L.J. 5 (June 30, 2009).

25 See David Kesmodel and John R. Wilke, Whole Foods CEO Hid on Message Board, Wall Street Journal (July 12, 2007), available at http://www.smartmoney.com/breaking-news/smw/?story=20070712105705.

26 See Kevin O’Keefe, Real Lawyers Have Blogs (August 31, 2010), available at: http://kevin.lexblog.com/2010/08/articles/social-media-1/social-networking-use-exploding-in-age-groups-targeted-by-law-firms-for-business-development/.

Francis G.X. Pileggi is the founding partner of the Wilmington, Delaware, office of Fox Rothschild LLP. He writes a blog at www.delawarelitigation.com that summarizes all the key decisions on corporate and commercial law from Delaware’s Court of Chancery and Supreme Court. He also writes the ethics column for every other issue of The Bencher.


The debate over whether and how far we can or should inquire into and regulate a judge’s private life and public life takes on a whole new dimension with the advent of computer

technology and the Internet. Social networking sites in particular have tended to blur the boundaries between judges’ private and public lives and have raised challenging new ethics issues.

One of the most notorious inquiries into extrajudicial conduct and the Internet involved Chief Judge Alex Kozinski, of the U.S. Court of Appeals for the Ninth Circuit. In June of 2008, the media began a feeding frenzy claiming that Judge Kozinski had posted sexually explicit material on his Web site.1 At the time, the judge was sitting by designation as a trial judge to try an obscenity case. He suspended the trial to consider whether there was a need for his recusal, ultimately declaring a mistrial and recusing himself.2 He then asked the Judicial Council of the Ninth Circuit to initiate proceedings with regard to the allegations against him. The Ninth Circuit Council asked Chief Justice Roberts to transfer the matter to another circuit, and it was subsequently transferred to the Third Circuit.

The primary assertion in the media was that Judge Kozinski maintained a publicly accessible Web site

1 See “9th Circuit’s Chief Judge Posted Sexually Explicit Matter on His Website,” Los Angeles Times Web site, June 11, 2008.

2 Judge Kozinski’s conduct with regard to the obscenity case, United States v. Issacs, is discussed fully in In re Com-plaint of Judicial Misconduct (Kozinski), Memorandum Opinion, Judicial Council of the Third Circuit, J.C. No. 03-08-90050 (June 5, 2009) at 36–38. The Third Circuit Council concluded: “To the extent the identified Com-plaint involves the Judge’s conduct with respect to the United States v. Issacs case, that portion of the Complaint will be dismissed under Rule 20(b)(1)(A)(i).” Id. at 38.

that contained sexual material. The judge cooper-ated fully in the investigation, and he testified under oath at a hearing before a special committee in Philadelphia. The committee found that while the judge did not maintain a public Web site as suggested by the media, he did maintain a large aggregation of e-mails he had received over the years on a “subdirec-tory” on his home computer, which had been connected to the Internet using Web server software,

The committee further found that these files, or e-mails, became accessible to the public “[t]hrough a combination of improper security and carelessness on the part of the judge.” At least one Internet search engine catalogued the contents of the subdirectory, allowing Internet searchers to locate the material. Judge Kozinski became aware of this, but he neglected to fully remove the offensive material or disconnect the computer from the Internet.

The Third Circuit Council found, “that the Judge’s possession of sexually explicit material combined with his carelessness in failing to safeguard his sphere of privacy was judicially imprudent. Moreover, once the judge became aware in 2007 that offensive material could be accessed by members of the public, his inattention to the need for prompt correc-tive action amounted to a disregard of a serious risk of public embarrassment.” The Third Circuit Council admonished the judge “that his conduct exhibiting poor judgment with respect to this material created a public controversy that can reasonably be seen as having resulted in embarrassment to the institution of the federal judiciary.” Judicial misconduct issues relating to the Internet, particularly in connection to social networking, have arisen within the state judicia-ries as well. The explosion of interest in social network-ing has precipitated, judicial ethics advisory opinions in New York and Florida.

Judicial Ethics, The Internet, and Social MediaBy James J. Alfini

James J. Alfini is Dean Emeritus and

Professor, South Texas College of Law. This article

was adapted from a portion of

an article (with Seana Willing) that

will appear in a symposium issue

of the South Texas Law Review on the future of the courts.

He is a Master in the Garland

R. Walker AIC in Houston, TX.


The New York opinion3 was initiated by a New York judge who had received an e-mail inviting her to join a social network. The judge asked whether it would be appropriate to join and participate. In concluding that a judge may join and make use of an Internet-based social network, the opinion first discusses the legitimate reasons for social networking, identifying reconnecting with old classmates and friends, staying in touch with distant family members and colleagues, and monitoring the use of the network by the judge’s minor children. The committee then looked at earlier opinions it had issued such as an opinion that said it was proper for a judge to provide links to newspaper articles on the judge’s Web site as long as they were dignified, truthful, and not misleading.4 The committee warned that a judge should consider whether any of the online connections rise to a level of a close personal relationship requiring disclosure or recusal. The committee also cautioned judges to employ [an] appropriate level of prudence, discretion, and decorum in using this technology, and to stay abreast of new features to the extent that they may present additional ethics issues requiring further guidance.5

In reaching its conclusion that a judge may partici-pate in a social network, the New York committee stressed that a judge may do so if “the judge otherwise complies with the Rules Governing Judicial Conduct.” In this regard, the committee cited the requirements from the New York version of the Code of Judicial Conduct that a judge avoid impropriety and the appearance of impropriety in all the judge’s activities, act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary, and conduct all of the judge’s extrajudicial activities so that they do not detract from the dignity of judicial office.

The Florida Ethics Opinion6 posed a number of questions. First, it addressed the question: “May a judge post material on the judge’s social network-ing page if the publication of these materials does not otherwise violate the Code of Judicial Conduct?” Similar to the New York Opinion, the committee answered, “Yes.” The committee then addressed the question: “May a judge add lawyers as “friends” and permit the lawyers to add the judge

3 N. Y. Advisory Comm. on Judicial Ethics, Op. 08-176 (Jan. 29, 2009).

4 N. Y. Advisory Comm. on Judicial Ethics, Op. 07-135. But see, N. Y. Advisory Comm. on Judicial Ethics, Op. 01-14 (a court should not provide a link on its web page to an advocacy group for Megan’s Law which listed the names and counties of residence for registered sex offenders).

5 N. Y. Advisory Comm. on Judicial Ethics, Op. 08-176 (Jan. 29, 2009) at 2.

6 Florida Supreme Court Judicial Ethics Advisory Com-Florida Supreme Court Judicial Ethics Advisory Com-mittee, Op. 2009-20 (Nov. 17, 2009).

as their “friend”?” Somewhat surprisingly, to this question the committee answered, “No.” The Florida committee concluded that this practice would violate the Canon 2B prohibition in the Florida Code of Judicial Conduct against lending “the prestige of judicial office to advance the private interests of the judge or others.” The committee explained that listing lawyers who may appear before the judge as “friends” on a networking page would convey to others the impression that these lawyer “friends” are in a special position to influence the judge.

The Florida committee’s opinion that a judge’s “friending” lawyers on a social networking site is improper has been criticized in the press7 and by a minority of the committee. In its opinion, the committee explained that a minority believed that social networking sites have become so ubiquitous that the term “friend” on these pages merely identi-fies a person as a contact or acquaintance and not a “friend” in the traditional sense, and would therefore not violate Canon 2B.

A judicial ethics advisory committee in South Carolina also addressed a question concerning the propriety of a judge’s participation in a social networking site. The inquiry from the South Carolina magistrate judge expressed concern over having local law enforcement officers and employees of the magistrate as “friends” of the magistrate on Facebook. The committee concluded that the judge may be a Facebook member and be friends with law enforcement officers and employees of the magistrate “as long as they do not discuss anything related to the judge’s position as magistrate.”8 In reaching this conclusion, the committee quoted from the commentary to Canon 4 of the South Carolina Code of Judicial Conduct: “…complete separation of a judge from extrajudicial activities is neither possible nor wise; a judge should not become isolated from the community in which the judge lives.” The committee went on to explain: “Allowing a magistrate to be a member of a social networking site allows the community to see how the judge communicates and gives the community a better understanding of the judge.”

As one might expect, the Internet and social networking pages have been seen as tools to

7 See, e.g. “For Judges on Facebook, Friendship Has Limits”, The New York Times Web site, December 10, 2009, http://www.nytimes.com/2009/12/11/us/11judges.html

8 South Carolina Advisory Committee on Standards of Judicial Conduct, Op. 17-2009 (October, 2009).



assist political communication9 and to enhance the election campaigns of judges in elective states. Since the Supreme Court of the United States decision in Republican Party of Minnesota v. White,10 campaign practices have been the subject of both increased scrutiny and experimentation. The Florida ethics opinion discussed earlier also addressed the question: “May a campaign committee post material on the judge’s site if the material does not violate the Code of Judicial Conduct?” The committee concluded that a campaign committee may post such material on the judge’s site.

The ethics advisory committee also addressed the question: “May a campaign committee establish a page that has an option for persons to list themselves as “fans” or supporters of the judge’s candidacy so long as access is not controlled by the judge or the committee?” Again, the committee concluded that it may. The committee stated that it was not inconsistent to prohibit judges from having “friends”, while permitting “fans”, reasoning that because neither the judge nor the campaign committee can accept or reject the listing of the fan on the social network, the listing of the lawyer’s name does not convey the impression that the lawyer is in a special position to influence the judge.

Judicial candidates in two states have been disciplined for seeking campaign contributions through the Internet. In the State of Washington, the judge’s campaign committee solicited donations by e-mail over the judge’s signature.11 The e-mails were written in the first person and concluded with the judge’s first name in the typed signature line. And, in the state of Kansas, a judicial candidate sent a cell phone text seeking donations from attorneys.12 The cell phone text stated: “If you are truly my friend then you would

9 Judges have been sanctioned for the improper use of these technological advances. A Texas judge, for example, was admonished for forwarding an e-mail from a county computer about George Bush’s 2000 presidential campaign. Public Admonition of Katz (Texas Commission on Judicial Conduct December 19, 2000).

10 536 U.S. 765, 122 S. Ct. 2528, 153 L. Ed. 2d 694 (2002)(declaring a campaign speech restriction of the Min-nesota Code of Judicial Conduct unconstitutional on First Amendment grounds). For a discussion of this case and its broader relevance to the field of judicial ethics see James J. Alfini, Steven Lubet, Jeffrey Shaman, and Charles Gardner Geyh, Judicial Conduct and Ethics (2007) 11-17–11-27.

11 In re Krouse, Stipulation, Agreement, and Order of Rep-rimand (Washington Commission on Judicial Conduct May 5, 2005).

12 Inquiry Concerning Davis, Order (Kansas Commission on Judicial Qualifications July 18, 2008).

cut a check to the campaign! If you do not then its time I checked you. Either you are with me or against me!”

Judges have also been sanctioned for misusing social networking sites in ways that compromise the integrity of their judicial positions. For example, a temporary judge in North Las Vegas was actually removed from office for a post on his MySpace page that was reportedly hostile to prosecutors and used graphic language.13 The temporary judge explained that in retrospect he would not have opted to post the contro-versial comment, but he did so to “provoke discussion.”

A trial judge in North Carolina was reprimanded for misusing the Internet in connection with a pending case.14 Following a discussion of Facebook in the judge’s chambers during a child custody and support case, Judge B. Carlton Terry, Jr. and Charles A. Schieck, attorney for the defendant in the proceeding, “friended” each other. Schieck then posted messages discussing various aspects of the case, and Judge Terry responded to these posts. The judge then used the Internet to gather information related to the case, including “Googling” the photography business run by the plaintiff and finding poems written by the plaintiff. At the end of the proceeding, the judge disclosed these activities. Jessie Conley, attorney for the plaintiff, requested that the judge vacate his order and disqualify himself. Judge Terry subsequently disqualified himself, vacated his child custody and support order, and ordered a new trial.

In issuing a public reprimand against Judge Terry, the North Carolina Judicial Standards Commission concluded that the judge had violated numerous provisions of the North Carolina Code of Judicial Conduct. They found that the judge failed to “observe appropriate standards of conduct to ensure that the integrity and independence of the judiciary shall be preserved (Canon 1),” failed “to respect and comply with the law (Canon 2A),” and failed “to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (Canon 2A).” The Commission also found that the judge violated Canon 3A(4) by “engaging in ex parte communication with counsel and conduct-ing independent ex parte online research about a party presently before the court.”

As we have seen, these developments raise numerous judicial ethics issues. The variety and complexity of these issues will require judicial disciplinary authorities to think outside the box for many years to come. Cyberspace has indeed opened a brave new world in the field of judicial ethics. ◆

13 American Bar Association Journal, August 14, 2007.14 In re Terry, Inquiry No. 08-234 (North Carolina Judicial

Standards Commission April 1, 2009).

Judicial Ethics continued from page 23.


P R O F I L E I N P R O F E S S I O N A L I S M

Thomas F. Hogan, a judge who served for 25 years on the U.S. District Court for the District of Columbia, has received the 2010 American

Inns of Court Professionalism Award for the District of Columbia Circuit. The award was presented by the Honorable John G. Roberts, Chief Justice of the United States, at the circuit’s judicial conference in June. Judge Hogan received a standing ovation.

The award honors a senior practicing judge or lawyer whose life and practice display sterling character and unquestioned integrity, coupled with ongoing dedica-tion to the highest standards of the legal profession. “It was a very meaningful moment for me,” Mr. Hogan said. However, he says, to serve as a federal district judge was “the highest honor I could have had.”

Judge Hogan was appointed to the U.S. District Court in 1982 and served as Chief Judge from 2001 to 2008. During that time, the court had a number of high-profile cases, including the Microsoft antitrust case, the McCain-Feingold campaign finance litiga-tion, U.S.A. v. Phillip Morris, and U.S.A. v. Libby.

During his tenure on the bench, Judge Hogan facilitated the move of the United States Foreign Intelligence Service Court from the Justice Department to the D.C. courthouse and managed the court’s budget. He led a key move to free up District judges for complex matters by persuad-ing the federal prosecutor to redirect gun cases to D.C. Superior Court. He also oversaw the design and construction of an annex to the courthouse, which was named for William B. Bryant, a formative influence in Judge Hogan’s life. Mr. Hogan has said that the building “has met our expectations for a modern, functional courthouse, while duly honoring the outstanding judge for whom it is named.”

Chief Justice Roberts appointed Mr. Hogan to serve as a judge on the United States Foreign Intelligence Service Court in 2008. He was designated by his colleagues on the court to coordinate and manage the habeas proceedings of Guantanamo Bay detainees.

He also served as a member of the United States Judicial Conference, the governing body for the administration of all United States courts. In 2005, the late Chief Justice William H. Rehnquist appointed Mr. Hogan to preside over the Executive Committee of the Judicial Conference, which he served as chair until 2008. Upon that occasion, Chief Justice Roberts issued a commendation that read in part:

Judge Hogan has led the Executive Committee with insight and grace. With his unassuming and inclusive style, he ensured that the views of each member of the Committee were heard and that decisions were based on consensus… Judge Hogan is a wise and thoughtful man whom we are proud to have as our colleague and friend.

Judge Hogan served on the Committee on the Administration of the Magistrate Judges System from 1987 to 1991, and as Chair of the Committee on Intercircuit Assignments from 1990 to 1994. He has served on the Board of the Federal Judicial Center and the Executive Committee of the U.S. District Court for the District of Columbia.

Mr. Hogan earned his bachelor of arts degree from Georgetown University. He attended George Washington University’s masters program in American and English literature for two years, and graduated the Georgetown University Law Center in 1966, where he was the St. Thomas More Fellow.

The appeal of his chosen path was a bit surprising: “There were no lawyers in my family and I didn’t know any lawyers,” he said. “But I went to law school and discovered that law was meant for me.”

Another influential mentor was Judge William B. Jones, with whom Mr. Hogan completed his first clerkship; the two men became friends and neighbors. “Judge Jones exemplified a tremendous dedication to the law,” Mr. Hogan said, “He taught me to read carefully and how to analyze cases, and demonstrated an excellent work ethic. He was a remarkable individual for a young lawyer to watch.”

Judge Hogan served as counsel to the National Commission for the Reform of Federal Criminal Laws from 1967 to 1968, and was engaged in private practice from 1968 to 1982 in Rockville and Chevy Chase, Maryland, and Washington, D.C. He was an assistant professor at Potomac School of Law from 1977 to 1979, and an adjunct professor at Georgetown University Law Center from 1986 to 1992.

“I always talk to my students about the integrity of the law and how we must uphold it,” he said. “Although there are roles for advocacy in law, in most cases we can’t inject our personal beliefs into our work; we have to call things as we see them.” ◆

The Honorable Thomas F. Hogan2010 District of Columbia Circuit Professionalism Award RecipientBy Jennifer J. Salopek

Jennifer J. Salopek is a freelance writer based in McLean, Virginia.


P R O F I L E I N P R O F E S S I O N A L I S M

Stephen N. Limbaugh, a judge who served for 25 years on the U.S. District Court for the Eastern District of Missouri, has received the

American Inns of Court 2010 Professionalism Award for the Eighth Circuit. The award was presented in August at the Eighth Circuit Judicial Conference in Minneapolis, Minnesota.

Judge Limbaugh is senior counsel in the firm Armstrong Teasdale LLP in St. Louis, Missouri. In addition to a litigation practice, he frequently serves as a mediator of civil cases. He was appointed to the bench by President Ronald Reagan and served from 1983 to 2008, stepping down only so that his son could fill a vacancy on the court.

During his tenure on the bench, Judge Limbaugh presided over, ruled on, or was involved with virtually every aspect of federal law and issues associated with complex business litigation, including antitrust, class action, intellectual property, personal injury, product liability, securities matters, multi-district litigation, and school cases.

Judge Limbaugh was nominated for the award by the Honorable Catherine D. Perry, Chief District Judge, U.S. Distric Court for the Eastern District of Missouri. She wrote, “By his example, [Steve] has demonstrated the best that our profession has to offer. As a judge, he treated all litigants with the utmost dignity, and he treated all lawyers with respect, even when he was ruling against them. Lawyers always knew that he would listen carefully, study the facts and the law, and rule promptly and carefully.”

As a teen, Judge Limbaugh earned Eagle Scout status and enlisted in the Navy at 17 where he served for 15 months. He completed his undergraduate and legal degrees in only five years earning a bachelor’s degree from Southeast Missouri State University and his J.D. from the University of Missouri at Columbia. He then joined his father’s law firm in Cape Girardeau, where he gained litigation experience in personal injury, product liability, medical malprac-tice, labor disputes, real estate, and tax cases. He practiced in numerous Missouri Circuit Courts and all Missouri appellate courts, as well as the Circuit Court of Appeals for the Eighth Circuit, the Tax Court, and the Illinois trial courts.

“My father was an exceptional role model and was a practicing attorney for 80 years,” said Judge Limbaugh. “He still went to the office at age 102. He

was my inspiration to become a lawyer and it was my privilege to practice with him for 30 years.”

Mr. Limbaugh worked in private practice at Limbaugh, Limbaugh, Russell & Syler from 1951 to 1983. During that time, he served as prosecuting attorney for Cape Girardeau County, and for four years he served as attorney for the City of Cape Girardeau. He estimates that 30 to 35 percent of his professional time was spent in the litigation area; the remaining time was devoted to general business practice, including banking, real estate, municipal, contract, and domestic relations law.

Judge Limbaugh has been a member of the Missouri Bar since 1951 and served as its president in 1982–1983. He also was a member of the House of Delegates of the American Bar Association from 1987–1991, and has been an active member of the American Law Institute and the American Judicature Society for many years.

He also found time to serve his community through volunteer and pro bono work. He served in various positions on the boards of the Cape Girardeau Civic Center, the Cape Girardeau Public Library Board, the Community Concert Association of Cape Girardeau, the Southeast Missouri Area Council of the Boy Scouts of America, and the Cape Girardeau Chamber of Commerce. “In addition to the many activities listed, he has been a tireless supporter of Legal Services of Eastern Missouri,” Judge Perry wrote. “In practice, he frequently provided free legal services to those who could not afford a lawyer, and his many actions have promoted the goal of making competent counsel available to all citizens, regard-less of their means.”

Since joining Armstrong Teasdale as senior counsel in 2008, Judge Limbaugh has continued to practice law with the firm’s litigation department. The practice includes arbitration, mediation, strategic counseling to clients in trial strategy, case assessment, mentoring firm associates, and assessing preparation of negotia-tion strategies and trial techniques.

“My greatest career achievement was the privilege of being a U.S. District Judge for 25 years,” Mr. Limbaugh said. “I am very fortunate to have practiced law, become a member of the judiciary, and then returned to law practice.” ◆

The Honorable Stephen Nathaniel Limbaugh, Sr.2010 Eighth Circuit Professionalism Award RecipientBy Jennifer J. Salopek

Jennifer J. Salopek is a freelance writer based in McLean, Virginia.


The national program library is an important service offered to the Inn membership by the Foundation. This Program Spotlight highlights the best of the program library as an offering to spark your own program creativity. If you would like to order any of the featured programs, please visit our Web site at www.innsofcourt.org or e-mail Andrew Young at [email protected].

P R O G R A M S P O T L I G H T

Program Number: P11829Presented By: The Sagamore AIC, Indianapolis, INAvailable Materials: Script, Articles, Law, Questions, Handouts, DVD

Summary:This program portrays the ethical ramifications for judges and attorneys who use social media including blogs, e-mail, Facebook, Twitter, LinkedIn. Through the use of three pre-recorded skits the program focuses on the use of these tools and highlighted how quickly and easily an attorney’s conduct can run afoul of the Rules of Professional Responsibility. After each video segment, a pupillage team member facilitated a discussion in which audience members identi-fied particular ethical issues in each skit. The situations depicted in the videotaped skits have general applicability in any jurisdiction.

Roles:Lawyer 1 Master

Lawyer 2 Barrister

Suzie Dogooder Associate

Joey Associate

Attorney Associate

Paula Associate

Secretary Master

Judge Kincaid Master

TV Show Host Associate

Panel Judge 1 Master

Panel Judge 2 Barrister

Agenda:Introduction 5 minutes

DVD 20 minutes

Discussion 35 minutes

Special Equipment:Laptop and large screen for showing pre-recorded skits.

The Reasonable and Ethical Conduct of Attorneys Using Social Media

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The Bencher (Nov./Dec. 2010) Social Media and the Law

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Transcript of The Bencher (Nov./Dec. 2010) Social Media and the Law