May 2017 Notes: Live-tweeting trials and client communications via Facebook

Live-Tweeting Trials Not “Broadcast.” In early May, at the ABA Litigation Section Annual Meeting, I spoke on a panel relating to social media use in trial. Two of my co-panelists were Judge William Alsup – who has presided over several high-profile technology cases in the Northern District of California – and Sarah Jeong, a lawyer/journalist who has pithily live-tweeted several of these cases. I was really struck by Alsup’s commitment to openness in the proceedings, and his sense that Jeong’s live-tweeting added something substantive to public understanding of his cases. This is certainly not the case everywhere, as many courts don’t even permit mobile devices in the courtroom, and others prohibit video or audio coverage. But in a sign of at least some movement on the transparency front, the Indiana Judicial Ethics Commission recently concluded that live-tweeting does not run afoul of that state’s prohibition on “broadcasting” court proceedings.

Failure to Communicate, Facebook Edition. A Nebraska lawyer was just suspended for failing to adequately respond to a client’s Facebook Messenger inquiries. But as Vermont Ethics Counsel Michael Kennedy notes, there’s nothing special to see here – this is simply a failure to communicate with a client; the medium used just happened to be “social.” And that’s the thing: as clients increasingly use social media to communicate – and anyone with teenage children knows that the idea of using a phone to actually TALK will be met with blank stares – attorneys have to respond and adapt to these changing habits. Social media may feel informal or frivolous, but a client’s concerns are no less real simply because they were communicated via instant message. And the attorney here still could have responded with a call, a letter, or an email – rather than just tapping back “Relax.”

Florida LRS Rule Changes Rejected. Florida is home to the nation’s most restrictive and extensive set of lawyer advertising regulations. For the last several years, the Florida Bar has been attempting to update those rules – specifically the rules relating to lawyer referral services – to deal with problems stemming from services cross-referring clients for unnecessary medical care. Unfortunately, the approach the Bar came up with didn’t address this problem at all. Instead, it attempted to water down the LRS rules and have them apply to all forms of legal marketing – including Avvo. So I went to Tallahassee last month to let the Florida Supreme Court know why we think this proposal is bad for Florida consumers and lawyers (I’m up at the 23:00 mark). I’m happy to report that the Court agreed that the Bar is on the wrong track, and sent it back to the drawing board. This doesn’t mean Florida won’t ultimately change its rules, but hopefully it will do so in a way that thoughtfully considers both the issues and the opportunities raised by developments in legal marketing and services.

Social Media News and Notes:

The “internet of things” lets manufacturers retaliate directly against negative reviews (note: NOT a good idea).

Lawyer’s defamation lawsuit over “worst ever” review is tossed by court.

Texas judge is reprimanded after letting his inner racist fly on Facebook.

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