September Notes: Fee-splitting, burner devices, and more judicial “friends.”

The Fight Over Judicial “Friends” Continues.  A Florida case highlighted in last month’s newsletter has been decided, with the outcome being that a Miami judge does not need to recuse herself merely because she is Facebook “friends” with counsel for one of the litigants. As the unanimous court of appeals decision notes, “the degree of intimacy among Facebook ‘friends’ varies greatly.” No kidding, right? As anyone who has used Facebook for more than a hot second knows, one’s “friends” can range from BFFs to people you haven’t seen or talked to in years. Absent further evidence of potential bias, a Facebook friendship between judges and counsel shouldn’t even be worthy of mention as grounds for recusal. Still, lawyers being lawyers, you can expect to keep hearing about this “issue” for quite some time.

Some States Look to Modernize Fee-Splitting Rules. Rule 5.4 of the ABA Model Rules prevents lawyers from splitting fees with non-lawyers. This rule is really a form of conflict prevention, designed – as the title of the rule itself notes – to preserve the professional independence of lawyers. But the Rule’s rigid language hasn’t aged well. Accepting credit cards for legal fees results in a technical violation of Rule 5.4 every time the credit card processor takes their 3% “split” of the fee. While this issue has been largely ignored, Bars are struggling with innovative new services and the growing adoption of performance-based marketing (in which advertisers pay per customer, rather than per-impression or per-click). But some states are starting to take action. North Carolina and Oregon are taking different approaches, but both have proposed amendments to their fee-splitting rules that should take effect before the end of 2017. These changes preserve the public-protective purpose of the rules while easing up on the rigid technical limitations.

Do Lawyers Need “Burner” Devices When Traveling Overseas? The ABA Journal profiles an interesting issue for jet-setting lawyers: protecting client files when returning from travel abroad. While foreign snooping and theft are the more obvious concerns, there’s also the fact that lawyers have no meaningful Fourth Amendment protection from search when re-entering the country. That’s enough to cause some law firms to require attorneys to use “burner” devices – laptops containing no client data – when traveling overseas. Is that something that all globe-trotting lawyers should emulate? After all, this is an edge case risk for the vast majority of lawyers. But taking some simple precautions when traveling – like putting all of your client data in the cloud – offers protection from both far-out risks like this one and the more likely hazard of device loss or compromise. For while tech never fails to create fascinating new issues to explore, paying attention to good old physical security remains a lawyer’s primary means of protecting client data.

Social Media News and Notes:

If you MUST travel overseas with client files, perhaps consider using an encrypted flash drive.

Nebraska becomes the 28th state to add “technological competence” to a lawyer’s ethical obligations.

Ohio Supreme Court justice takes to Facebook to blast Browns players for kneeling during national anthem.