You don’t own your tweets

In his ruling, Judge Matthew A. Sciarrino Jr. said, “If you post a tweet, just  like if you scream it out the window, there is no reasonable expectation of  privacy.”

The excerpt is taken from a good layperson’s overview of the case and law that can be found here.  The ruling has its genesis in a trespass prosecution connected with the Occupy movement.

Here is a worthy comment on the context of the decision from Natasha Lennard at Salon:

Of course, the lesson to take away is to tweet with caution. It’s also worth keeping in mind that, although throwing up some important insights, this court battle began over a charge for marching on a bridge. As Stolar puts it, “It’s prosecutorial overkill; using a sledgehammer to squash a gnat.” Harris agrees. He is (as he tends to be) disappointed in the state and surprised that a Harvard Law-trained ADA’s time is being used to pursue his minor charge. The precedent set, however, should give pause to those of us who live (perhaps too much of) our lives through Twitter.

The Ethics of Cyber Mooching

David Sirota explores the question:

Healthy interpersonal relationships always involve a careful dance around the hard-to-define line between friendly sharing and selfish mooching. Homeowners wonder: How many times is it OK to ask to borrow my poorer neighbor’s lawn mower? Family members ponder: How often can I ask to borrow the museum pass from my economically equal cousin? Friends consider: How frequently can I ask to use a wealthier buddy’s NBA season tickets? In each of these questions (and you know you’ve asked yourself one of these), we are really asking when the other person will think we’ve crossed the Mooch Line, and when that person will angrily implore us to just save up and buy what we want for ourselves.

In the Internet age of frictionless data transfer, such unanswered — and potentially unanswerable — queries are now even more pervasive. Whether sharing legally (lending Kindle books, etc.) or illegally (ripping DVDs, pilfering Netflix or an MLB.com pass, etc.), whom we ask and how much we ask them for are ethical quandaries whose rules shift depending on familial connection, types of friendship and economic status (among other factors). (A disclaimer: Nothing in this article condones any illegal sharing of anything. It is only to acknowledge that such illegal sharing does, in fact, occur — and then to explore the ethical implications of that kind of behavior.)

Sirota presents three options to avoid mooching:

Option 1 is bartering. If someone gives you something that they are paying for, return the favor with something they want that you already have or purchase. Lend them a Kindle book. Let them have access to your Wi-Fi network. Something.

Option 2 is putting up some cash to help defray the cost of what you are getting. In the case of HBO Go, TechCrunch’s data tell us that many believe a fair market price is something along the lines of $12 a month (less than the full HBO subscription, but still fair because you don’t get all of the versatility of that subscription).

Option 3 is getting the service in question from someone higher on the economic food chain, preferably within your family, where (theoretically) the Mooch Line is a bit more forgiving, and where parents and grandparents in particular have a near ancestral obligation to permit mooching.

Do the same options work for pirated content? They arguably do as between the moocher and moochee, although they don’t do anything to address the injured content distributor.

Personally (in the context of legal sharing only, of course), I usually go with Option 1, in the form of looking for opportunities to help those who have shared with me, rather than in the form of outright bartering.

Business Ethics Scorecard

From Ezra Klein:

A new global survey from Ernst & Young finds that companies are more likely to use cash bribes in hopes of improving their performance than they were two years ago: 15 percent of respondents (who included some firms’ chief financial officers) said they are willing to make cash bribes, compared to 9 percent in E&Y’s 2010 survey.

 

Similarly, 5 percent said they “might misstate financial performance” to make themselves look better, compared to 3 percent in the last survey. Ernst & Young explains that bribery and other corrupt practices are significantly more likely to happen in “rapid-growth markets” in the developing world, pointing out that 39 percent of survey respondents said that bribery and corruption occurs frequently in their countries.

More barriers to entry into the shrinking legal services market

Ben Trachtenberg points out the failings in New York’s new pro bono legal service prerequisite for bar admission in today’s New York Times:

Mandatory pro bono work for lawyers is a good idea. But Judge Lippman’s plan is deeply flawed, as it affects only aspiring lawyers who have not yet gained admission to the bar. As a result, the beneficiaries of Judge Lippman’s largess will be served by people unlicensed to practice law — who by definition have no real practice experience. (Though internships and law school clinics are useful training grounds for future lawyers, they are no substitute for the rigors of licensed practice.)

The Lippman plan hurts these budding lawyers most of all. Recent law school graduates face a growing employment crisis: the Law School Transparency Data Clearinghouse lists 67 schools (out of the 185 that were scored) with full-time legal employment rates below 55 percent. At the same time, law school tuition and student debt have skyrocketed. The average 2011 law graduate from Syracuse owes $132,993, not including any debt incurred for undergraduate education. At Pace, the figure is $139,007; at New York Law School, $146,230.

After commencement, things get worse. Law graduates often borrow more money for bar preparation, to pay for both living expenses and prep courses, which can cost more than $3,000. Even graduates with good jobs lined up face tight summer budgets; many work in retail or food service to make ends meet, as do many law students. The irony is that many recent law graduates may well qualify for the free legal services Judge Lippman will bestow on New York’s poor. It is from these struggling New Yorkers that Judge Lippman demands over a week’s unpaid labor.

In case you have a need for even more sobering news, LegalZoom has filed for an initial public offering.  Richard Granat illuminates the dent in small-firm revenues that LegalZoom may be creating:

LegalZoom’s data in the S-1 filing is now available for everyone to analyze:

• In 2011, 490,000 orders were placed through their web site;
• 20% of all limited liability companies in California were done by LegalZoom;
• During the past ten years, LegalZoom has served over 2,000,000 customers.
• Revenue in 2011 was $156 million.

These are impressive statistics and provide support for the proposition that consumers and small business prefer a very limited legal solution that is just good enough to get the job done, rather than pay the high legal fees charged by the typical attorney.

Bounded Ethicality

Over the past couple of decades, psychologists have documented many different ways that our minds fail to see what is directly in front of us. They’ve come up with a concept called “bounded ethicality”: That’s the notion that cognitively, our ability to behave ethically is seriously limited, because we don’t always see the ethical big picture.

One small example: the way a decision is framed. “The way that a decision is presented to me,” says Tenbrunsel, “very much changes the way in which I view that decision, and then eventually, the decision it is that I reach.”

Essentially, Tenbrunsel argues, certain cognitive frames make us blind to the fact that we are confronting an ethical problem at all. …

“If you’re thinking about a business decision, you are significantly more likely to lie than if you were thinking from an ethical frame,” Tenbrunsel says.

According to Tenbrunsel, the business frame cognitively activates one set of goals — to be competent, to be successful; the ethics frame triggers other goals. And once you’re in, say, a business frame, you become really focused on meeting those goals, and other goals can completely fade from view.

From NPR.

New Pro Bono Requirement Prior to New York Bar Admission

As if the $130,000+ law school price tag and horrific job market were not enough of a deterrent for would-be lawyers.

Starting next year, prospective lawyers must show that they have performed at least 50 hours of law-related pro bono service before being admitted to the New York state bar, Chief Judge Jonathan Lippman announced yesterday.

The chief judge said in his annual Law Day address at the Court of Appeals that the requirement would serve a two-fold purpose: It would address the large, unmet need for lawyers to represent the poor and it would inculcate in aspiring lawyers a career-long duty to serve the public.

“If pro bono is a core value of our profession, and it is—and if we aspire for all practicing attorneys to devote a meaningful portion of their time to public service, and they should—these ideals ought to be instilled from the start, when one first aspires to be a member of the profession,” Lippman said to a crowd of judges, lawyers and legislators.

(Emphasis added). More here.

Justice and Criminal Justice Fees

Economist Alex Tabarrok writes:

Debtor’s prisons are supposed to be illegal in the United States but today poor people who fail to pay even small criminal justice fees are routinely being imprisoned. The problem has gotten worse recently because strapped states have dramatically increased the number of criminal justice fees. In Pennsylvania, for example, the criminal court charges for police transport, sheriff costs, state court costs, postage, and “judgment.” Many of these charges are not for any direct costs imposed by the criminal but have been added as revenue enhancers. A $5 fee, for example, supports the County Probation Officers’ Firearms Training Fund, an $8 fee supports the Judicial Computer Project, a $250 fee goes to the DNA Detection Fund. Convicted criminals may face dozens of fees (not including fines and restitution) totaling a substantial burden for people of limited means. Fees do not end outside the courtroom. Jailed criminals can be charged for room and board and for telephone use, haircuts, drug tests, transportation, booking, and medical co-pays. In Arizona, visitors to a prison are now charged a $25 maintenance fee. In PA in order to get parole there is a mandatory charge of $60. While on parole, defendants may be further assessed counseling, testing and other fees. Interest builds unpaid fees larger and larger. In Washington state unpaid legal debt accrues at an interest rate of 12%. As a result, the median person convicted in WA sees their criminal justice debt grow larger over time.

Worse, these fees are often charged before the individual has been convicted. Tabarrok makes the point that while there is some appeal to passing the costs of the justice system on to its “users,” these fees put a heavy burden on those least able to pay, including both criminals, who are usually poor, and their families.  Debt related to the fees creates additional barriers to reintegration into society, thereby undermining the effectiveness of the system.

The whole post is worth reading, along with the comments.

When You are Better Off Representing Yourself

The lawyer whose work the justices had considered was the least of it; he had merely been unresponsive and incompetent. Mr. Holland’s earlier lawyers had failed him in much more colorful ways.

Consider Kenneth Delegal, who was assigned to defend Mr. Holland at a 1996 retrial on charges that he had killed a Pompano Beach police officer in 1990. Mr. Delegal was removed from the case after being sent to a mental health facility. Later, the two men would see each other at the Broward County jail, where Mr. Delegal was held on drug and domestic violence charges.

The next lawyer, James Lewis, was a friend of Mr. Delegal’s and had shared office space with him. When Mr. Delegal went to court after his removal from Mr. Holland’s case, seeking to be paid about $40,000 for his work on it, the new lawyer testified on behalf of the old one, saying the fees had been “reasonable and necessary.”

Mr. Delegal died of a drug overdose about a month after the fee hearing, and a local paper asked his former colleague Mr. Lewis about his troubles. “I heard some rumors,” Mr. Lewis said, “but I chose not to know.”   [. . .]

However, upon waiving your right to court-appointed counsel, be careful not to represent yourself too effectively:

As proof that Mr. Holland was no longer mentally ill, Judge Greene praised him as an able advocate who had “correctly argued case law and factual issues to the court.” His legal skills, then, were proof that he was fit to be executed — but not good enough that he be allowed to defend himself.

From the New York Times.  More here.

Can a New York Attorney Use Google Docs?

David Hricik posed the following question on The Legal Ethics Forum:

When you use Google Docs, you give Google the following license to “Content” which is, basically, everything you put up:

11. Content license from you

11.1 You retain copyright and any other rights you already hold in Content which you submit, post or display on or through, the Services. By submitting, posting or displaying the content you give Google a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Content which you submit, post or display on or through, the Services. This license is for the sole purpose of enabling Google to display, distribute and promote the Services and may be revoked for certain Services as defined in the Additional Terms of those Services.

11.2 You agree that this license includes a right for Google to make such Content available to other companies, organizations or individuals with whom Google has relationships for the provision of syndicated services, and to use such Content in connection with the provision of those services.

11.3 You understand that Google, in performing the required technical steps to provide the Services to our users, may (a) transmit or distribute your Content over various public networks and in various media; and (b) make such changes to your Content as are necessary to conform and adapt that Content to the technical requirements of connecting networks, devices, services or media. You agree that this license shall permit Google to take these actions.

11.4 You confirm and warrant to Google that you have all the rights, power and authority necessary to grant the above license.

Query whether this is ethical for lawyers to use?

Subsequent to Hricik’s original post, a commentator posted additional language from a related document that adds the following limitation on Google’s bolded rights: “for the sole purpose of enabling Google to provide you with the Service in accordance with the Google Docs Privacy Policy.”

Here are some relevant portions of the Google Docs Privacy Policy:

Information We Share

We do not share personal information with companies, organizations and individuals outside of Google unless one of the following circumstances apply:

. . .

For legal reasons

We will share personal information with companies, organizations or individuals outside of Google if we have a good-faith belief that access, use, preservation or disclosure of the information is reasonably necessary to:

• meet any applicable law, regulation, legal process or enforceable governmental request.
• enforce applicable Terms of Service, including investigation of potential violations.
• detect, prevent, or otherwise address fraud, security or technical issues.
• protect against harm to the rights, property or safety of Google, our users or the public as required or permitted by law.

The New York State Bar Association Committee on Professional Ethics has addressed the storage of documents in the cloud in Opinion #842 (the link is here), concluding as follows:

We conclude that a lawyer may use an online “cloud” computer data backup system to store client files provided that the lawyer takes reasonable care to ensure that the system is secure and that client confidentiality will be maintained. “Reasonable care” to protect a client’s confidential information against unauthorized disclosure may include consideration of the following steps:

• Ensuring that the online data storage provider has an enforceable obligation to preserve confidentiality and security, and that the provider will notify the lawyer if served with process requiring the production of client information;
• Investigating the online data storage provider’s security measures, policies, recoverability methods, and other procedures to determine if they are adequate under the circumstances;
• Employing available technology to guard against reasonably foreseeable attempts to infiltrate the data that is stored.

Based on the foregoing, it appears that the answer to David’s question for New York attorneys is, in a word, “no.”  At least not on the terms quoted above, even as modified by the rider. An attorney has no “enforceable obligation” against Google which requires Google to preserve the confidentiality of the attorney’s documents. 

The rider doesn’t even come close to creating the level of protection described in Opinion #482. Perhaps the New York or American Bar Association should develop a standard agreement that cloud document providers must incorporate if they want attorney business? Otherwise, the individual attorney doesn’t have much negotiating power and isn’t going to be able to get the terms she needs.  At least not out of Google.   

By the way, did you know that Google is in the legal services business? 

Link Ethically

1. Botox is not exempt from New York State sales tax.

2. The power of strategic inferiority.

But sometimes the most successful innovations involve coming up with inferior products, but making them cheaper and more convenient. So it was with the late Murray Lender, former CEO of Lender’s Bagels, who passed away last week at the age of 81.

Rest in peace, Murray.

3. Is there anything wrong with defendants wearing nonprescription glasses?

According to the Post, nonprescription “hipster” glasses have become something of a sensation at Washington, D.C., courthouses. Inmates trade them before hearings or obtain them from family members. Sometimes lawyers give them to their clients.

We all know that wearing glasses doesn’t mean that you are smart, or that you necessarily read a lot. You would think that the frequency of defendants wearing glasses would, at some point, lead people to perceive the wearing of glasses as being indicative of a less trustworthy personality.  See Exhibit “A” below.

4. On “greenwashing,” and the lawsuits related thereto.

As the world increasingly embraces the mantra of green products and services, the legal community is encountering a proliferation of litigation surrounding false and misleading environmental marketing claims. Popularly called “greenwashing,” this recent, albeit alarming, phenomenon merges the concepts of “green” (environmentally sound), and “whitewashing” (to gloss over wrongdoing) to describe the deceptive use of green marketing which promotes a misleading perception that a company’s policies, practices, products or services are environmentally friendly. “Eco-Friendly,” “organic,” “natural,” and “green” are just some everyday examples of widely used labels that can be confusing, even misleading.