Wednesday, December 31, 2014

Judicial Opinions: The Interview

I have been meaning to open this blog up to guest posts from friends of the blog.   Today I received this review of the Interview from a Texas Bankruptcy Judge who wishes to remain anonymous.  I am a huge fan of the First Amendment and am glad to see that one of our judges was willing to sacrifice her Christmas day in service of that most precious of rights.   Hope you enjoy the review.

Movie Review:  "The Interview"by Judge Angie Alias 12/28/14
Rating (on a scale of 1-10 gavels): 2 gavels.*

On Christmas Day 2014, after traveling over the river and through the woods to visit family (actually it was over a big city expressway that I traveled); after feasting on the savory and sweet foods of the season and avoiding mistletoe encounters with certain relatives; and, finally, after drinking way too much eggnog, I decided I would nestle down and do something not all that Christmas’y. I decided to fulfill what seemed like my patriotic duty. On this holiest of holy days–the day on which Christians celebrate the birth of Jesus of Nazareth, and in this season in which men and women of all faiths and nations endeavor to spread peace on earth and goodwill toward men–I would do something completely different. I would support every artist’s creative freedom. I would quietly pay homage to every artist’s First Amendment Right to write, speak, or otherwise express whatever he wants, no matter how offensive. I would do my own small part in telling world governments, monolithic corporations, and anonymous hackers that censorship and stifling of artistic freedom (even bad artistic displays) will never be tolerated in our American society. Yes, after basking in the magic, warmth, and customs of the season, I paid $5.99 and downloaded “The Interview” off of GooglePlay. What a sap, you say. But wait. Read on before mocking me. 

I'll preface the following movie review by stating that, until Christmas Day 2014, I had never watched a movie starring the actors James Franco and Seth Rogen in my life, so I guess I wasn't aware of their...let's say, really raw bad-boy humor. I understand that there have been some less-than-stellar cinematic collaborations between the two on films with such names as “Spring Breakers,” “Pineapple Express,” and “This is the End.” The trailers for those movies look less than enticing to me. I mean, I am by no means an entertainment snob. Despite the sober and stern stereotype that people may have for judges (yes, I am a judge by day; amateur movie critic or whatever by night), I will watch pretty much ANYTHING anytime, in a never-ending quest to forget the daily stress and seriousness of my job. It’s not easy making life-changing decisions regarding other people’s lives all day. But. . .OMG (yes, I have teenagers, too)! Let’s just say there are conversations in the movie “The Interview” regarding male anatomy, the lingering scent of guacamole, and an alleged Matthew McConaughey goat fetish that are WAAAAY too offensive to describe in print. Surely that makes you curious. ... Anyway, I suppose the movie is worth the $5.99, but BARELY. Again, in this amateur movie reviewer’s perspective, it is all about one’s patriotic duty. At least, that’s what I am telling myself to justify the loss of $5.99 and two hours of my life. 

Most readers probably know something about the movie plot by now. The farfetched premise is that North Korean dictator Kim Jong Un, who loves American pop culture (think Dennis Rodman, Elvis, etc.) but, of course, hates America itself, is an adoring fan-from-afar of James Franco’s character Dave Skylark–a pretty boy TV talk show host who interviews celebrities and makes them confess to interesting or otherwise well-kept secrets. In fact, in two amusing cameo appearances, rapper Eminem unexpectedly shares during an interview the fact that he is gay (saying “I’ve been leaving bread crumbs of my gayness in my songs for years”) and Rob Lowe takes off a toupee, revealing his terrifyingly ugly bald head during a TV tell-all. 

You get the gist. So when Dave Skylark and his producer Aaron Rapoport (played by Seth Rogen) learn of Kim Jong Un’s fan-crush/man-crush on Dave Skylark, they manage to arrange an interview with the boyish leader in Pyongyang, North Korea. Then the CIA recruits the unlikely pair to assassinate Un while they are in North Korea. It is not an easy mission for the two dimwits. There are lots of crazy situations when the two are there, including their accidental fatal poisoning of one of Un’s trusted advisors (when the advisor mistakes a ricin strip in Skylark’s bag for a piece of chewing gum). Seth Rogen’s character also has a near-death encounter with a Siberian Tiger while in a field at night (do they have Siberian Tigers in North Korea?). And Franco’s character even starts to develop a fondness for the maniacal, child-like dictator, until having a chance encounter with a fake grapefruit one night (you have to see the movie if you want to understand this plot twist). 

But the important thing (spoiler alert) is that, after revealing Un’s true character to the North Korean public in a craftily choreographed interview (with the assistance of a sexy, female, machine-gun toting North Korean official, who hijacks the TV communication systems and prevents termination of the interview), the pair not only makes the North Koreans understand that Un is not an Almighty God (among other things, it is revealed that Un actually has bodily functions like all human beings–according to the movie, which uses different terms than “bodily functions”–allegedly it is North Korean folklore that he does not), but the pair finally manage to assassinate the crazy dictator in spectacular fashion, with a ridiculous Katy Perry song loudly blasting in the background. But, without a doubt, the best part of the movie is an adorable Cavalier King Charles Spaniel puppy named Digby that the Franco character manages to smuggle out of the country in the end. 

I should be struck by lightening for watching this movie on Christmas night. It has crude language, over-the-top sexual humor, and, yes, even some bloody violence (after all, they kill the dictator). Without a doubt, the movie has no redeeming qualities. Not one. No Oscar-caliber performances, no brilliant (or even mildly clever) dialogue, no cinematic beauty, and it’s not even that funny. But it did make me feel patriotic. “Lol.” Actually, strike that. The movie didn’t make me “laugh out loud.” Go ahead. Call me a sap and mock me. Just not while in court. 

Judge gives “The Interview” a 2-gavel* rating.

Judge uses gavels, rather than the traditional stars, to rate movies. Judge’s opinions in this movie review are her own, and do not reflect the views of anyone at the court at which she serves.

Friday, December 19, 2014

Court Rejects Trustee's Unique Homestead Attack

Some of the recent decisions on Texas homesteads coming out of the courts have people wondering just what John Wayne fought and died for at the Alamo.   The sanctity of the homestead along with the prohibition against garnishment of wages are two of the pillars upon which this State was founded.  While the news for Texas debtors has generally been depressing, Texas Bankruptcy Judge Tony Davis rejected a creative argument from an aggressive trustee in the case of In re Parsons, No. 12-12649 (Bankr. W.D. Tex. 12/12/14), which can be found here.
What Happened

The Debtors filed chapter 11 to deal with a large IRS liability.   At the time of the filing, they owed a small balance on their mortgage but the property was subject to a sizable tax lien.  No party objected to the exemptions during the chapter 11. 
The Debtors converted their case to chapter 7 after proposing a chapter 11 plan which drew no votes either for or against.    By the time of the conversion, the mortgage had been paid off but the IRS lien exceeded the value of the property.   Meanwhile the Debtors had negotiated a settlement of their IRS liability for a sum which was less than the value of the homestead.

The Debtors claimed Texas exemptions.    The Trustee objected on the basis that the Debtors had no equity in the property and that under section 724(b), the Trustee could sell the property and subordinate the IRS lien to pay administrative and priority claims.
The Court's Ruling

Judge Davis put his ruling at the beginning of the opinion for those not willing to wade through eight pages of discussion:
In this case, the Court concludes that a trustee may not collect administrative expenses by forcing the sale of a Texas homestead, encumbered by IRS liens but claimed as exempt, even if there is no equity in the property.
Opinion, p. 1.

The Debtors argued that the trustee's objection was untimely.   Under prior Western District case law, conversion to chapter 7 did not trigger a new period for objecting to exemptions.   In re Halbert, 146 B.R. 185 (Bankr. W. D. Tex. 1992).   Unfortunately for the Debtors, Fed.R.Bankr.P. 1019(2)(B) was adopted in 2010.   It says that when a case converts from chapter 11, 12 or 13, there is a new period triggered for objecting to exemptions unless either:  i)  a plan was confirmed at least one year prior to conversion; or ii) the case was previously in chapter 7 and the period for objections had expired.   The rule provision is probably a wise one.   In a reorganization case, creditors and parties are generally more focused on what they will receive under a plan.  As a result, they are less likely to focus on exemption questions.    The rule amendment closes the loophole.

The Court found that the argument under section 724(b) was premature.   In order for a trustee to invoke section 724(b), the property must be property of the estate.   Therefore, section 724(b) cannot be used to bring the property into the estate.
There is some debate between the parties as to the necessity or appropriateness of this section 724(b) maneuver by the Trustee, but that debate is irrelevant; because the exemption is valid, the Homestead is not property of the estate, and section 724(b) does not apply.
Opinion, p. 4.

Finally, the Court rejected the argument that the Debtors could not claim property which lacked equity as exempt under Texas law.   The Court distinguished cases in which the exemption is limited to a specific dollar amount and under which the Debtor might arguably need to have equity in order to have an exempt interest in the property.   The Court noted that under Texas law, it is the homestead itself which is exempt, not the value of the homestead.   The Court stated:
There is no dollar limit to the exemption because it is the homestead itself, rather than the debtor’s equity, that Texas law protects. (citations omitted). Even if the Debtors had no equity to exempt, they would still have a residence that is itself exempt under Texas homestead law.
Opinion, p. 8.    The ruling that the homestead itself is of intrinsic value under Texas law, as opposed to something as transient and impermanent as value, would have brought a smile to John Wayne's face.   

Why Were the Parties Fighting Over a Home With No Equity?

One question not answered by the opinion is why the parties were arguing over a home with no equity.   For the Debtors, the answer was straightforward.   They had lived in the house since 1983, long enough to pay off the first mortgage.   This was their residence rather than simply an investment.  The trustee's motivations were more complex.   While he knew that the property had no equity on paper, he was also aware that the Debtors were negotiating with the IRS.   If the Trustee could strike the same deal with the IRS, he could generate equity for the estate.   Thus, the Trustee was seeking to object to the exemption based on no equity and then create equity by compromising the IRS lien.   

Disclosures and Other Fine Print
My firm represented the Debtors and I tried the homestead issue for them.
John Wayne did not actually fight at the Alamo.   However, he did play Davy Crockett in the 1960 film version.   He also played Texans in many other films, including The Searchers (1956), Rio Bravo (1959), The Commancheros (1962) The Sons of Katie Elder (1965) and Rio Lobo (1970). John Wayne was not actually a Texan, but he is still the iconic Texan.    

Sunday, December 07, 2014

New Media Equals New Ethical Issues

When I was in high school, social media consisted of my home telephone line.   I could use it to access the outside world until my parents told me to get off the phone because they were expecting an important call.   Today’s teens have many more opportunities for social interaction without actual physical presence than I did thanks to twenty-something developers of social media platforms who became instant billionaires when their product that didn’t actually generate any revenue got picked up by a big corporation afraid of missing out on the next big thing.   However, the funny thing is that as social media has proliferated, its user base has gotten wider and older.   Parents who signed up for Facebook to try to keep up with their teens activities (as if), discovered that other parents were there trying to monitor their kid’s activities.   When large numbers of persons in desirable demographics started using social media, it created an opportunity for advertisers, and as society embraced social media, lawyers eventually came around to it.   
For me, Facebook was my gateway to social media.   That led to blogging, list-serves and Twitter (which I am still trying to figure out).    For a child of the 70s like myself, social media has the same DIY sensibility that punk did during my high school years.   (I never formed a band and preferred the silliness of the Cars and the B-52s to the anger of the Sex Pistols and the Clash, but that’s a story for another day).  

The appeal of social media to lawyers is obvious.   You can spend six months writing a law review article that will come out a year later and be read by a few dozen people or you can spend several hours writing a blog post that will get several hundred views within the week.  Since most lawyers have some element of narcissism, social media appeals to that need.  More importantly, as the internet has proliferated, consumers are used to searching for information about products and services online so that an internet presence can be a way to reach potential clients for nothing more than the time it takes to write a blog. 

However, with great opportunity comes great danger.  (I think Spiderman said that).   While social media can allow the articulate attorney to convey his insights to more people than he could ever corner at a cocktail party, it can also lead to run-ins with the bar, defamation suits and unemployment.    The President has drawn heat for framing his foreign policy as “don’t do stupid stuff.”   However, when you boil it down, the cornerstone of legal ethics is don’t do stupid stuff (as interpreted through lots of rules).   This article will talk about how not to do stupid stuff with social media.  While ethics is generally framed in the negative, it can also point the way to our better natures, the professional that we always hoped that we could be.   While I will not be giving lessons on how to be the Atticus Finch of the digital age, I will pass on a few lessons I have learned from others on how to effectively use social media.

I.           Meet the New Media, Same as the Old Media?  Not Really.

Before getting into the dos and don’ts of social media, it is worth spending a few paragraphs on just what social media is.   Merriam Webster defines social media is:
forms of electronic communication (as Web sites for social networking and microblogging) through which users create online communities to share information, ideas, personal messages, and other content (as videos).
            However, social media is an outgrowth of the new media.  Before talking about the ethical implications of social media, it is worthwhile to take a look at how media has changed.   The old media was one directional.  Media was produced by professionals and directed to consumers.  Old media consisted of print, television and radio.   It included such items as newspapers, newsletters, legal journals, law reviews and legal directories.  Interactive “old” media consisted of face to face contact in forums such as churches, Rotary Clubs, Inns of Court and so on.   

            Lawyers used “old” media for at least three overlapping purposes:   promotion, education and advocacy.  Promotion includes advertising, reputation development and networking.   Of these, advertising was highly regulated by the bar and networking could only be done effectively through face to face contact.    Traditional education activities consisted of writing for print media, whether it was for a legal journal or an article for a continuing educational conference.  Advocacy was also limited by the medium.   Attorneys could take out an advertisement on an important issue, whether it was on television or the newspaper, or write a letter to the editor or write an amicus brief.   Arguably, some aspects of old media were aimed at personal narcissism.  While advertising is aimed primarily at soliciting clients, it can also be used to feed the attorney’s personal ego.    Similarly, attorneys who could get on television as experts could develop status beyond their ability to get clients.   Old media was good for certain celebrity attorneys such as Racehorse Haynes, F. Lee Bailey and Johnny Cochran.

            New media consists of everything made possible by the internet.    On the one hand, old media is now available on the internet.   I can read the newspaper on my cell phone or find a lawyer within seconds on the Texas State Bar website.    There are vast amounts of free legal resources online, such as the Cornell Law Library’s Legal Information Institute.   However, what makes new media revolutionary is both its low barrier to entry democratic structure and its capacity for interactive communication.    Anyone can have a web presence and many of those platforms allow communication without the restrictions of a telephone line or face to face interaction.   

            Examples of new media include:
  • Blogs.    Blog is a contraction of the term web log.   It is nothing more than a personal website where a person can upload “posts” and allow comments.  While blogs were once the subject of personal ramblings of interest to no one other than the author, there are many good legal blogs.  Blogs are beginning to be cited in judicial opinions.  See, e.g., In re General Motors Corp., 2009 Bankr. LEXIS 1687 (Bankr. S.D. N.Y. 2009); Chief Disciplinary Counsel v. Cohen, 2010 Conn. Super. LEXIS 3038 (Conn. Sup. 2010).  My blog is A Texas Bankruptcy Lawyers Blog.  Blogs qualify as new media because they are do-it-yourself media.  Anyone who can access the internet can create a blog.   Blogs can have an interactive feature through the comments section.   However, a blog requires a strong following to have a lively comments section.  
  • List-serves.   List-serves are a connected series of email addresses allowing members to communicate with the group.    It is easy to start a list-serve.   I use a list-serve on Yahoo groups as a way to promote my blog.   It is common for bar associations to have list-serves for communication between lawyers on legal topics.  Most legal list-serves have closed membership (meaning that the moderator has to approve new members) and are moderated to ensure that only appropriate communications make the list.
  • Professional networking and listing sites.   These include sites like Linked-In and Avvo which offer listings of professional credentials.   Linked-In is designed to allow professionals to connect with each other, while Avvo is designed for the general public.  Avvo allows professionals to submit credentials and obtain ratings.
  • Twitter.   Twitter is a service that allows members to send messages of up to 140 characters.   While this may seem silly, the real value of Twitter is the ability to link attachments to the mini-messages and the ability to follow interesting people and hopefully have people follow your messages.   I am just starting to use Twitter and use it to promote my blog posts.
  • Youtube.  YouTube allows users to upload short videos.  YouTube videos can range from cute cat videos to advertisements.   YouTube is also used by aspiring artists trying to be discovered.
  • Facebook.   Facebook allows a user to create and page and post statuses and messages.   Facebook allows people to connect with “friends” who they may or may not know in real life.   I use Facebook to get the latest pictures posted by my kids and to keep up with people who I may have known in high school and college.   I have very few Facebook friends who I know form my professional world, although I did friend the former Chief Justice of the Texas Supreme Court because I knew his kids from soccer.
  • Reddit.  I have never used Reddit.   However, it says “Reddit’s stories are created by its users.   Join the community, vote and change the world.”   
  • Tumblr.  Tumblr is another site I haven’t figured out yet.   It describes itself as “where tens of millions of creative people around the world follow things they love.”   My teenage daughter credits Tumblr on the occasions when she is familiar with world events.   
  • Lawyer Websites.    Most businesses have websites today.   Websites are a form of lawyer advertising.   They barely qualify as “new media.”  Lawyer websites are not interactive and are usually prepared by professionals.   However, some of the content may actually come from the attorneys.
            For lawyers, new media allows the same functions of promotion, education, advocacy and personal narcissism.   However, it also allows purely personal communication as well.   The combination of the commercial and the personal is what makes new media exciting and fraught with peril.   

II.                The First Amendment

The starting point for ethics in social media is the First Amendment.    Social media is speech.    When ethics is used in the narrow sense of governmental regulation of attorney conduct, the First Amendment prescribes the outer limits of that power.   The First Amendment also impacts related areas such as liability for defamation and employment.   Here is a brief overview of some First Amendment concepts.

·         There is a hierarchy of First Amendment protections.   Speech on matters of public concern “occupies the highest rung of the hierarchy of First Amendment values.”   Snyder v. Phelps, 131 S.Ct. 1207, 1211 (2011).   Thus, members of a fringe religious group were entitled to protected from suit for intentional infliction of emotional distress when their protest of a marine’s funeral related to matters of public concern.   The government may not discipline an employee for speaking in his capacity as a citizen on a matter of public concern.    Lane v. Franks, 134 S.Ct. 2369 (2014).   This issue arose in the social media context where an Assistant State’s Attorney was terminated for publishing blog posts containing documents he obtained through public records requests with regard to the investigation of a police shooting.   The Court found that even though some of the documents posted related to his duties as an ASA, they became public documents once he obtained them through an open records request.   The Court found that the attorney was speaking as a private citizen on a matter of public concern.  

·         The First Amendment sets the boundaries of private liability for defamatory speech.     In New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the Court held that a public figure alleging defamation had to prove “actual malice” in order to recover. Actual malice means knowledge that the statement was false or reckless disregard of whether it was true or false.   In Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), the Court found that the states could allow recovery for defamation of a private figure for “any standard of care except liability without fault.”  Several years later, the Court held that that a public figure could not recover damages for intentional infliction of emotional distress based on a vulgar parody unless it showed that it contained a statement of fact and was made with actual malice.   Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988).

·         The First Amendment offers less protection to “commercial speech” than communicative speech. Commercial speech consists of “speech proposing a commercial transaction.”  Ohralik v. Ohio State Bar Association, 436 U.S. 447, 455-56 (1978).  “(W)e … have afforded commercial speech a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values, while allowing modes of regulation that might be impermissible in the realm of noncommercial expression.”   Id.

·         The government may prohibit commercial speech that is “false, deceptive or misleading” or which “proposes an illegal transaction.”   Zauderer v. Office of General Counsel,471 U.S. 626, 638 (1985).  “Commercial speech that is not false or deceptive and does not concern unlawful activities, however, may be restricted only in the service of a substantial governmental interest, and only through means that directly advance that interest.”   Id.

·         In Milavetz, Gallop & Milavetz, P.A. v. United States, 559 U.S. 229 (2010), the Supreme Court found that requiring attorneys who qualified as “debt relief agencies” to state “We are a debt relief agency.   We help people file for relief under the Bankruptcy Code” was a permissible regulation of potentially misleading advertisements.   

·         Certain forms of speech are not entitled to any First Amendment protection.   These include speech intended and likely to incite imminent lawless action, obscenity, child pornography, defamation, so-called “fighting words” and speech presenting a grave and imminent threat that the government has the power to prevent.   On the other hand, the government does not have the power to ban false statements in general.   United States v. Alvarez, 567 U.S. ___ (2012).

·         “Although the internet is the latest platform for anonymous speech, online speech stands on the same footing as other speech—there is no basis for qualifying the level of First Amendment scrutiny that should be applied to online speech.”   Fodor v. Doe, 2011 U.S. Dist. LEXIS 49672 (D. Nev. 2011).   

Taken together, this survey illustrates that several old media principles remain viable for new media as well.
  • When attorneys advertise on social media, they are subject to state regulation.  The state can prohibit advertising which is false, deceptive or misleading and can adopt reasonable regulations to prevent this.
  • When an attorney speaks on a subject of public concern, such as discussing important cases and rulings, her speech is entitled to the greatest protection available.
  • Speech which is claimed to be defamatory is analyzed the same whether it is on new media or old media.
III.             Defamation

Defamation is not a purely ethical issue.   ABA Rule 4.1 governs Truthfulness in Statements to Others.    While it is unlikely that an attorney would face a grievance for general false statements about others, it is growing increasingly likely that statements made in social media could lead to a lawsuit for defamation.   Because lawyers make their living from representing people in litigation rather than parties to litigation, avoiding suits for defamation is an application in practical ethics.

Several recent cases have dealt with defamation in the context of social media.  The most important recent case dealing with defamation and blogging involved Crystal Cox, a self-proclaimed “investigative blogger” who became convinced that a bankruptcy trustee was up to no good.  She posted articles that accused the Trustee in the Summit Accomodators, Inc. bankruptcy of fraud, corruption, money laundering and other illegal activities in connection with the bankruptcy case.    The District Court found that most of Ms. Cox’s statements “employed figurative and hyperbolic language” and were not subject to liability.  Nevertheless, it found that a blog post accusing the Trustee of failing to pay $174,000 in taxes was sufficiently specific.     The Court also found that the plaintiffs were not required to show either negligence or actual damages because Ms. Cox had failed to submit “evidence of her status as a journalist.”   Ms. Cox was held liable for damages in the amount of $2.5 million.    On appeal, the Ninth Circuit reversed.  Obsidian Finance Group, LLC v. Cox, 740 F.3d 1284 (9th Cir. 2014).   The Court rejected the argument that the Gertz negligence standard only applied to the institutional media.  It found that “liability for a defamatory blog post involving a matter of public concern cannot be imposed without proof of fault and damages.”   The Court elaborated:
We agree with our sister circuits. The protections of the First Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities, engaged in conflict-of-interest disclosure, went beyond just assembling others' writings, or tried to get both sides of a story. As the Supreme Court has accurately warned, a First Amendment distinction between the institutional press and other speakers is unworkable: "With the advent of the Internet and the decline of print and broadcast media . . . the line between the media and others who wish to comment on political and social issues becomes far more blurred." (citation omitted). In defamation cases, the public-figure status of a plaintiff and the public importance of the statement at issue—not the identity of the speaker—provide the  First Amendment touchstones.
740 F.3d at 1291.

Other cases involving social media and defamation include:

  • Wallace v. Perry (In re Perry), 423 B.R. 215 (Bankr S.D.Tex. 2010)  Debtor forwarded anonymous blog post about a business partner with whom he was having a dispute.  Debtor was found liable for a nondischargeable debt for willful and malicious injury.
  • Bui v. Do (In re Do), 2013 Bankr. LEXIS 1463 (Bankr. W.D. Tex. 2013).   Debtor accused plaintiff of being a communist sympathizer on his website.   Debtor held subject to a nondischargeable debt for willful and malicious injury.
  • Purser v. Scarbrough (In re Scarbrough),  2014 Bankr. LEXIS 3682 (Bankr. W.D. Tex. 2014).   In one small piece of a much larger case, the Court found that posting video obtained as evidence in a case to YouTube with regard to a candidate for School Board was evidence of Debtor’s intent to harm plaintiff.   Court rejected argument that this was protected First Amendment speech.   (I represented the defendant and am appealing this ruling).    
  • Franco v. Cronfel, 311 S.W.3d 600 (Tex. App.—Austin, 2010, no writ).   Disgruntled client posted scathing review of attorney on the Ripoff Report.  The Defendant filed a Motion for Partial Summary Judgment asserting that the attorney, who was acting as a state court receiver, was a public figure, and that the Plaintiff had not produced any evidence of actual malice.  The trial court granted the public figure motion and denied the no evidence motion.   On appeal, the Court affirmed denial of the no-evidence motion for summary judgment and found that it lacked jurisdiction over the receiver’s cross-appeal on the public figure ruling.   While the case is not very useful from a precedential standpoint, it shows the difficulty that can arise from online postings.
  • Martin v. Daily News, 2009 N.Y. Misc. LEXIS 3858 (N.Y. Sup. Ct. 2009).   Newspaper ran several stories about alleged corruption in the courts, one of which made a factual misstatement.  An attorney who was involved in the case posted two blog entries which described what occurred in the case.   The Judge sued both the newspaper and the attorney.   The Court dismissed the claims against the attorney for the blog postings.  
Generally, defamation law requires a four part analysis: 

  1. Was the statement made with regard to a fact or was it an opinion?  Opinions cannot be defamatory.   Only factual statements can be defamatory.Was the statement false?   Only false statements can be defamatory.  Garrison v. Louisiana, 379 U.S. 64 (1964).  This facet of American law distinguishes it from the law in some countries such as Sweden where a true statement may give rise to criminal prosecution if it is meant to be vilifying.
  2. If the statement was false, was the subject of the statement a public figure?  If a public figure is involved, the plaintiff must show that the statement was made with actual malice.   If the statement involved a private figure, it is enough that the statement was made negligently.   
  3. If the statement was made with the appropriate intent, did it result in damages?   
  4. In a case of defamation per se, damages are presumed.  Defamation per se consists of accusing a person of a crime or several other options depending upon the state.   In Florida, defamation per se includes accusing a person of having an infectious disease.   Klayman v. Judicial Watch, Inc., 2014 U.S. Dist. LEXIS 71045 (S.D. Fl. 2014).   Otherwise, the plaintiff must prove actual damages to prevail.
When blogging about a court opinion, a blogger can protect himself by reporting upon the facts found by the court or by clearly labeling statements as opinion.   For example, assume that in a case under 11 U.S.C. §§ 523(a)(2) and (a)(4), the defendant was sued for a determination of non-dischargeability based on fraud for failing to disclose that the property sold was subject to mold contamination and for embezzlement for misapplying funds received in trust to close the transaction.    The court finds that the debtor did commit fraud with regard to the mold contamination but does not find that the facts met the requirements for embezzlement.   Consider the following scenarios:

  • The blogger writes: “The court found that the debtor knowingly failed to disclose mold contamination in the property” This is an objectively true statement assuming that the court actually said this.
  • The blogger writes, “The debtor knowingly failed to disclose mold contamination in the property” The debtor could sue the blogger claiming that the statement was false.   However, the debtor would have to show that:  1)  the Court’s ruling was wrong; and 2) that the blogger was negligent in reporting the statement as a fact.   Given the fact that the statement was made based upon a court’s finding, it would probably be a nearly impossible case to meet.
  • The blogger writes, “The debtor was clearly guilty of embezzlement, but the court denied relief.”  The blogger has made an affirmative statement of fact that can be proved or disproved.   Whether the debtor was “clearly guilty” of embezzlement could be a true statement or a false statement.    For example, if the court’s finding in favor of the plaintiff was based on the plaintiff’s failure to offer the defendant’s statement to the police where he admitted the embezzlement, then the statement could be true even though the court did not make this finding.   On the other hand, if the blogger made the statement based upon his own unrelated experience with the real estate agent without any personal knowledge about the case or the record, then the statement could be found to be false and made with either reckless intent or actual malice.   
  • The blogger writes, “In my opinion, the evidence received was sufficient to establish embezzlement” and the blogger genuinely held that opinion. The blogger would be making a statement of opinion which would probably not be defamatory.  
  • The blogger writes, “The court found against the debtor because he received a $10,000 bribe from plaintiff’s counsel.” The blogger would be subject to a finding of defamation (assuming that he did not have actual evidence of the bribe and its effect on the ruling) and would be subject to a grievance under ABA Rule 8.2 which says that “(a) lawyer shall not make a statement that the lawyer knows to be false  or with reckless disregard as to its truth or falsity concerning the . . integrity of a judge . . . .”  

IV.             Common Ethical Perils of Social Media

There are several areas where the ABA Model Rules intersect with social media use as well as several additional areas not covered by the rules.   These include:

  •  Preserving client confidences under ABA Rule 1.6;
  • Trial publicity under ABA Rule 3.6;
  •  Advertising under ABA Rule 7.2;
  • Derogatory statements about an adjudicative official under ABA Rule 8.2;
  • Conduct prejudicial to the administration of justice under ABA Rule 8.4; and
  •  Recusal or disqualification of the Court.
1.      Client Confidences

Preserving client confidences and privileged information is one of the highest duties that an attorney has.    When an attorney blogs about his cases and clients there is a risk of disclosing confidential information.   ABA Model Rule 1.6(a) prohibits an attorney from revealing “information relating to the representation of a client” unless the client gives informed consent or it is necessary for the representation.    This duty is more stringent than simply preserving attorney-client communication.   

Several cases demonstrate how disclosure of client information on social media can pose a problem for attorneys.  In one case, a public defender began publishing a blog titled The Barrd Before the Bar to help her cope with the stresses of practice.   She candidly described her clients’ circumstances, referring to them by their first name or their jail identification number.  Not only was she terminated from her position, but the Illinois Attorney Registration and Disciplinary Commission filed a complaint against her, resulting in a 60 day suspension of her license.   In re Peshek, 798 N.W.2d 879 (Wisc. 2011)(the published opinion resulted from a petition for reciprocal discipline in Wisconsin).   Another attorney, faced with a scathing review from a client, posted “personal and confidential information about the client that Ms. Skinner had gained in her professional relationship with the client.”   The Georgia Supreme Court rejected the attorney’s request that discipline be limited to a public reprimand.   Matter of Skinner, 740 S.E.2d 171 (Ga. 2013).    In contrast, a court found that an attorney who blogged about public aspects of his clients’ cases was within his First Amendment rights.  The Court stated:

It is settled that attorney speech about public information from cases is protected by the First Amendment, but it may be regulated if it poses a substantial likelihood of materially prejudicing a pending case.

Hunter v. Virginia State Bar, 744 S.E.2d 611, 619 (Va. 2013).    Thus, even though the information may have been embarrassing to the client, the attorney was permitted to blog about it because of the First Amendment protection.

2.      Trial Publicity

As indicated by the quote from Hunter above, an attorneys’ right to discuss a pending case may be limited if it is likely to materially prejudice a pending case.   This prohibition is contained in ABA Model Rule 3.6 which bars

an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter

The peril of extrajudicial statements is illustrated by an incident in the Paula Deen litigation.   An attorney representing the Plaintiff tweeted his opinions about Paula Deen and the case.   The Defendants then sought to have him disqualified on the basis that he had violated Rule 3.6(a).   The attorney then sought to have the motion with the offending tweets sealed.   The Court denied both the motion to disqualify and the motion to seal.   The Court stated:

(T)he Court is unsealing the Billips tweets that directly and arguably relate to this case. . . . Those statements were the legitimate subject of a disqualification motion under the rules of professional conduct, which prohibit extrajudicial statements by a lawyer who reasonably believes that his comments will be made public and are likely to materially prejudice an adjudicative proceeding.   (citation omitted).   At the public hearing on the disqualification motion, Court referenced these tweets and found that they constituted improper comment about the merits of pending litigation—essentially stating as fact what his client was alleging.  While the Court noted that the ethics code presumes that such demeaning comments tend to prejudice the proceedings, it determined that the disqualification of counsel was not an appropriate sanction under the circumstances of this case.   But because the Court analyzed Billups’ extrajudicial comments about this case in assessing the merits of a nonfrivolous motion to disqualify him due to their improper nature, and because defendants have never sought to have those comments shielded from public view, the Court finds that they should no longer be sealed.   A further relevant consideration:  Mr. Billups’ comments add little, if anything, to the rather incendiary allegations set out in plaintiff’s amended complaint, a document already a part of the public record.  That no doubt explains why defendants not only never sought to seal those extrajudicial statements but, after discovering their existence, themselves placed the tweets in the record of these proceedings.

Jackson v. Deen, 2013 U.S. Dist. LEXIS 65814 (S.D. Ga. 2013) at *15-16.   While the attorney in this case was spared disqualification, he was subjected to a very public tongue-lashing from the Court.   

3.      Advertising

Advertising is an area where the state may regulate attorney speech.   However, determining what constitutes advertising is not always easy.   In Hunter v. Virginia State Bar, 744 S.E.2d 611 (Va. 2013), cert. den., 133 S.Ct. 2871 (2013), an attorney maintained a blog titled This Week in Richmond Criminal Defense.   The blog described the attorney’s successes in court.  Indeed, twenty-two out of thirty postings concerned his cases.    The blog was hosted on the firm’s website which asked “Do you need Richmond attorneys?”     The Virginia State Bar filed a disciplinary proceeding on several grounds including the fact that the blog postings did not contain a disclaimer.   The trial court found that the blog constituted advertising and should have included a disclaimer.  The attorney contended that the blog did not constitute advertising and that the court below had violated his First Amendment rights.    The Court rejected this position, stating:

(T)he inclusion of five generalized, legal posts and three discussions about cases that he did not handle on his non-interactive blog, no more transform Hunter's otherwise self-promotional blog posts into political speech, "than opening sales presentations with a prayer or a Pledge of Allegiance would convert them into religious or political speech."

Id. at 498.

            On the other hand, an attorney who sent unsolicited faxes containing an Attorney Malpractice Report was found not to have sent solicitations under the Telephone Consumer Protection Act.   According to the Court, because the attorney “furnished information about attorney malpractice lawsuits; and the substantive content varied from issue to issue; and the reports did not promote commercial products,” they did not constitute solicitation.    Stern v. Bluestone, 911 N.E.2d 844, 846 (N.Y. App. 2009).    While this was a case under the TCPA, the issue of distinguishing between commercial solicitation and informational speech is the same.   This is an example of why context matters.   

In both the Hunter and Stern cases, the attorney provided information about cases to promote his business.   However, in Hunter, the information provided was about the attorney’s exploits, while in Stern, the information demonstrated the attorney’s knowledge.    Indirect promotion by demonstrating knowledge will not ordinarily constitute advertising.

4.      False Statements About the Qualifications or Integrity of a Judge

While it is not unusual for lawyers to complain about judges that they are unhappy with, social media multiplies the opportunities for griping to lead to a grievance.

According to ABA Model Rule 8.2(a):

A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.

Attorneys have faced disciplinary action when they:  “wrote in (a) blog that the judges, guardian, ad litem and other attorneys involved in the guardianship proceedings engaged in improprieties including theft and embezzlement,” Denison v. Larkin, 2014 U.S. Dist. LEXIS 111902 (N.D. Ill. 2014)[1]; referred to one judge as “an asshole” and another as “Judge Clueless,”   Complaint filed in Matter of Peshek, No. 09 CH 89, Illinois Attorney Registration and Disciplinary Commission; and called a judge a “witch” in a blog, “Lawyer Agrees to Reprimand for Tirade About Judge,” ABA Journal (June 11, 2008).    These are examples of blogging that will not enhance an attorney’s professional standing.

5.      General Dishonesty and Interference with the Administration of Justice

ABA Model Rule 8.4 contains several general ethical violations, including to:
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice.
In the Denison case discussed above, the attorney’s claims of corruption in her blog also led to disciplinary proceedings brought under Rule 8.4(c) and (d).  

6.      Facebook Friends and Judicial Disqualification

Anyone who has ever spent much time on Facebook probably knows that there is only a tenuous connection between Facebook friends and real world friendships.   Nevertheless, when a Judge “friends” a participant in litigation, it may raise questions about the judge’s impartiality.   When the judge was Facebook friends with the prosecutor, this was grounds for disqualification in Domville v. State, 103 So.3d 184 (Fl. App. 2012).  However, in another case, the fact that the judge was Facebook friends with one of the prosecution’s witnesses and became upset when defense counsel accessed his page did not require recusal.  State v. Madden, 2014 Tenn. Crim. App. LEXIS 208 (Tenn. Cr. App. 2014).    In the Madden case, the Court said that the defendant had to show not only the relationship, but how it impacted the case:
Simply establishing that a trial judge is acquainted with a lawyer or other person connected to a case does not establish an abuse of discretion in the denial of a recusal motion.  (citation omitted).   There must be some connection between the judge’s relationship with a lawyer, party, or witness and some action taken in the case.
Madden, at *19-20.   While the Madden case is probably accurate in referring to Facebook friends as mere acquaintances, it seems to underestimate the appearance of favoritism.  

A good article which contains additional ethical scenarios is “10 Tips for Avoiding Ethical Lapses When Using Social Media” by Christina Vassiliou Harvey, Mac R. McCoy, Brook Sneath in the January 2014 issue of Business Law Today.

V.                Tips for Using Social Media

Social media can be a valuable tool for professional development as well as providing good experience sharpening your writing and knowledge of current issues.    Obviously, a trip to the grievance committee or a lawsuit would wipe out these benefits.  Here are my thoughts about smart use of social media.   These are mostly targeted to blogging, since that is where I have the most experience.   However, many of them will apply across platforms.

1.                  Decide why you are using social media.   An education and advocacy blog is subject to different rules than one aimed at advertising the lawyer’s services.    Advertising is generally incompatible with the purposes of social media since many state bars require pre-screening.   If you have to submit each post to the bar, pay a fee and wait for a decision before posting, your blog will not be very timely and it will get expensive quickly.   

2.                  Develop a theme and a tone.   A blog is partially about building your online brand.    Come up with a theme and a style of writing that can be positively associated with you.   My theme is to write primarily about Texas cases and national issues.   Tone is harder to define.   Most of my posts follow the format of:  a lead paragraph introducing the post, a description of what happened (the facts of the case), how the court decided the issue and why it matters.    By dividing the posts this way, readers can go to what they care about.   By keeping my opinion (why it matters) at the end, the reader can make their own decision about the case before getting to what I think about it.   That way, if the reader disagrees with my conclusion, he can still get some value from the post.   I also try to describe complex legal situations as clearly as I can and rely on the occasional pop culture reference to keep the writing crisp.    Generally I try to keep my writing positive, pointing out how the case can be useful to the practitioner.   When writing about ethical issues, I try to frame the case as a cautionary tale as to how the person made choices which could have been avoided.   Most of the time when I write about a case, I either agree with the result or take a neutral editorial tone.   When I disagree with an opinion, I try to make clear that I am expressing my opinion and give reasons for that opinion.   I also avoid criticizing the judge or the lawyers, preferring instead to disagree with the result.

3.                  Don’t overly promote yourself/don’t advertise.   Whenever a blog is about the blogger and not the content, it is moving dangerously close to advertising.    I rarely write about my own cases.   There are several good reasons for this.  I prefer to write about written opinions since they provide something objective to report.   I also prefer not to write about cases where I lost since they are likely to focus unpleasant attention on myself or my client.   The universe of interesting cases that I am involved in and can write about without embarrassment is pretty small.  Another reason not to overly focus on my own cases is that at some point it can cross the line into advertising.   If a blog discusses the results of cases or comments upon legal issues, it is not advertising.   However, a blog devoted to the attorney’s exploits in court in which he always prevails against better funded opponents, then the blog is advertising or possibly fiction.

So what is the difference between educational blogging and advertising?  In my view, it is the difference between demonstrating the attorney’s expertise and insight as opposed to talking about how brilliant the attorney is.  If you have to say it out loud, it probably isn’t true.

4.                   Be careful to report objective facts or to give opinions and distinguish between the two.   As discussed above, defamation will not apply to true statements or opinions.   For your own credibility and your financial interest, it is best to stick to facts that appear in the record or are easily verified.   Further, the credibility of your blog will depend upon the credibility of your reporting and the quality of your opinions.   While the law respects contrarian opinions, as shown by dissents which later become law, opinions which are merely inflammatory or based on the author’s prejudices will not build credibility.

5.                  Do some actual reporting when you can.   Sometimes an opinion may leave out critical facts that the parties took for granted.   In this case, it can be helpful to consult the underlying pleadings, prior court orders and lower court opinions to shed light on the court’s opinion.    Since all of this information is available on PACER, it is appropriate for a blogger to look this information up and explain how the court’s conclusions could have been influenced by facts appearing in the record but not the opinion or questioning why certain facts did not influence the opinion.   This is simply good legal journalism.

6.                  Once you develop a good product, promote it.   The wider your blog is distributed, the more benefit you will receive.   I promote my blog through my own listserve.  It is also distributed through the ABI Blog page and the State Bar of Texas blog page.  

7.                  Moderate the comments to your blog!    99% of the comments I receive are spam.   They tend to obscure the substantive comments, although the comments from escort services are interesting.  As a result, I delete spam comments before they ever post.  Sometimes a commenter will say things that are defamatory or that you don’t want to be associated with.   For example, if a commenter says that “Judge X hates women” that is probably a good comment to delete.  Substantive comments will build the credibility of your blog while nasty, irrelevant or incoherent comments will take away from it.    

[1] The opinion involved a suit brought by the disciplined attorney against the Illinois Attorney Registration and Disciplinary Commission for copyright infringement for using her copyrighted blog against her.   The case was dismissed for failure to state a cause of action.