Judge who was Facebook friends with victim’s father did not have to recuse himself

Case provides valuable guidance to judges on how to responsibly handle social media connections and communications.

Judge sent defendant to prison for assaulting defendant’s girlfriend. Defendant appealed his sentence claiming, among other things, that the judge was not impartial, given that the judge was Facebook friends with the girlfriend-victim’s father, and that the two of them had communicated through Facebook’s private message feature. The appellate court held that the judge did not err by not recusing himself.

The appellate court found that no rule prohibited the judge from being Facebook friends with the victim’s father. And the judge followed the proper procedure concerning the private message by:

  • discontinuing reading it once he realized it pertained to the case
  • warning the victim’s father not to communicate ex parte in that manner
  • printing the message out and placing it in the case file
  • notifying counsel for the parties

Moreover, the private message was not adverse to defendant, but actually asked for leniency. On these facts, the court found an insufficient showing of bias to find reversible error.

Youkers v. State, — S.W.3d —, 2013 WL 2077196 (Tex.App. May 15, 2013)

Technology ethics: Seminar on responsible telephone use

As an attorney I feel an obligation to preach to you about what’s right and what’s wrong. People routinely trivialize this important duty by characterizing the subject matter as “ethics” or “professionalism.”

As a technology attorney, especially as one cool enough to use Twitter and be on Facebook, I feel a special obligation to instruct you on responsible use of social media. I’ll get to that.

First we need to address some of the basics concerning wise use of technology. Starting with the telephone.

In this downturned economy, I’m looking for every opportunity I can to supplement my income. So I’m offering a one day seminar called Telephone Ethics: Avoiding the Pitfalls Inherent in Voice Communications Technology. Registration is $995 dollars. Email me to sign up. But hurry, only a few seats are still available!

With the advent of the telephone, lawyers are threatened with almost certain peril and inevitable claims of malpractice. In this full day, in-depth course, we will look at the issues that arise each day as lawyers adopt this frightening intriguing technology. Subjects will include:

  • Diligence: Avoid violating Rule 1.3 — which requires a lawyer to be diligent in representing a client — by promptly returning phone calls.
  • Confidentiality: Oops! Did I just spill the beans and violate Rule 1.6 by forgetting to shut the door of that phone booth?
  • Polite Ambulance Chasing: What to say when phoning the victim of that bad accident you saw on the freeway. How to delicately let him know you’re a lawyer while navigating the Rule 7.3 minefield.
  • Much, much more!

And we’ll also have some fun. I’m lining up a special telephone expert TBA who will give some practical tips on how to better monetize your telephone use. That session will be called “Dialing for Profit: Let Your Fingers Do The Walking to a Successful Law Practice.” Check back at this Web page later for more details.

Future seminar topics will include Responsible Faxing: How to Keep the Disciplinary Committee Off Your Line, and Appropriate PowerPoint Obfuscation: Making Sure Your Bullet Points Aren’t Too Sparse.

CLE accreditation will be requested if there is sufficient interest. Heaven knows we need those ethics credits. Oh, and happy April 1.

Telephone photo courtesy Flickr user smudie under this Creative Commons license.

Be careful with email because your employer is “looking over your shoulder”

Workplace email policy destroyed attorney-client privilege

Scott v. Beth Israel Medical Center, — N.Y.S.2d —-, 2007 WL 3053351 (N.Y. Sup. October 17, 2007).

Dr. Scott, who used to work for Beth Israel Medical Center in New York, sued his former employer for breach of contract and a number of other different things. Before he was terminated, however, he had used his work email account to send messages to his attorneys, discussing potential litigation against Beth Israel.

When Dr. Scott found out that Beth Israel was in possession of these email messages, he asked the court to order that those messages be returned to him. He argued that they were protected from disclosure to Beth Israel under the attorney client privilege.

Beth Israel argued that they were not subject to the privilege because they were not made “in confidence.” There was an email policy in place that provided, among other things, that the computers were to be used for business purposes only, that employees had no personal right of privacy in the material they create or receive through Beth Israel’s computer systems, and that Beth Israel had the right to access and disclose material on its system.

Dr. Scott argued that New York law [CPLR 4548] protected the confidentiality. Simply stated, CPLR 4548 provides that a communication shouldn’t lose its privileged character just because it’s transmitted electronically.

The court denied Dr. Scott’s motion for a protective order, finding that the messages were not protected by the attorney client privilege.

It looked to the case of In re Asia Global Crossing, 322 B.R. 247 (S.D.N.Y. 2005) to conclude that the presence of the email policy destroyed the confidential nature of the communications. The policy banned personal use, the hospital had the right to review the email messages (despite Scott’s unsuccessful HIPAA argument), and Dr. Scott had notice of the policy.

The decision has implications for both individuals and the attorneys who represent them. Employees should be aware that when they are sending messages through their employer’s system, they may not be communicating in confidence. And attorneys sending email messages to their clients’ work email accounts, on matters not relating to the representation of the employer, must be careful not to unwittingly violate the attorney client privilege.

What’s more, although the decision is based on email communications, it could affect the results of any case involving instant messaging or text messaging through the company’s server.

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