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.

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.

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.

It’s Too Bad that the Ethical Canons Don’t Apply to Law Schools – Part II

The lawsuit against New York Law School was tossed from court this week. The story is here.  A key piece of the decision (via the ABA Journal):

“The court does not view these post-graduate employment statistics to be misleading in a material way for a consumer acting reasonably,” the judge wrote. “By anyone’s definition, reasonable consumers—college graduates—seriously considering law schools are a sophisticated subset of education consumers, capable of sifting through data and weighing alternatives before making a decision regarding their post-college options, such as applying for professional school. These reasonable consumers have available to them any number of sources of information to review when making their decisions.”

(Emphasis added).

I think that the evidence is quite to the contrary. If prospective law students do in fact represent a sophisticated subset of education consumers, and they were duped in droves by job placement statistics, then the statistics were, in fact, misleading in a material way.
The question is whether their reliance was “reasonable.” Given how many people did rely to a greater or lesser extent on those statistics (present company included), its hard to argue that our reliance was unreasonable, unless you conclude that the vast majority of prospective law students are unreasonable.  (While there is plenty of evidence to support this, usually reasonableness gauged by what the average person would have done in the same circumstances). This presents a rather unworkable standard.
Until the last couple of years, the prospective student who kicked the tires on his or her potential school’s employment or other statistics would have been in the extreme minority.  The prevailing mood in our society, for generations, has been to place trust in institutions of higher learning as bastions of meritocracy, political and academic independence and integrity. So yes, it was reasonable for prospective students to trust that law schools were not engaging in Enron-style tricks to improve their post-graduation job placement stats.
The education market, by the way, is starting to sort this out.

A Duty of Loyalty for Make Benefit the Glorious Nation of China

From the Guardian, Chinese lawyers must now swear loyalty to the leadership of the Communist Party:

China‘s justice ministry has ordered lawyers to take an oath of loyalty to the Communist party in an unusual move that has drawn condemnation from lawyers worried about the government’s attempts to rein them in.

The ministry issued a notice on Wednesday demanding that first-time applicants and lawyers who want to renew their licences have to take the oath.

I promise to faithfully fulfill the sacred mission of socialism with Chinese characteristics … loyalty to the motherland, its people, and uphold the leadership of the Communist party of China,” lawyers must say.

Alexander v. Cahill and Rule 7.3 of the Rules of Professional Conduct

New York State’s Rules of Professional conduct contain both aspirational and mandatory dimensions.  For the most part, attorneys have accepted the imposition of the mandatory rules without challenge.  One of the problematic rules from the perspective of marketing a transactional practice is found in Rule 7.3, which essentially prohibits any form of real-time solicitation of work from potential clients unless the target is a close friend, relative, or a former or existing client.  In other words, you cannot approach someone that you know may need specific transactional services in person or over the phone and offer your services (unless you effectively already have a relationship with them).

If one considers the situation of an attorney calling an unsophisticated person who has been in an accident or inherited some money, it is not hard to understand the rationale of Rule 7.3.  However, if you consider that this rule would also prevent a tax attorney (say, me, for example) from calling the highly sophisticated CEO of a Fortune 500 company (who would almost certainly have me dumped into the voicemail of someone in the mail room), the potential for abuse is nonexistent.

Consider, then, the recent case of Alexander v. Cahill, 598 F.3d 79 (2d Cir. 2010) in which it was established that the Rules of Professional Conduct are subject to constitutional limitations established by the First Amendment.

The challenge in Alexander was focused on certain of New York Sate’s rules which became effective in 2007.  Part of the challenge was focused on restrictions on advertising content (use of nicknames and irrelevant images – think lawyers representing space aliens – in ads).  To oversimplify a bit, the Second Circuit held that: (1) attorney advertising is speech that is protected by the First Amendment; and (2) New York has an interest that is materially advanced by the challenged rules; but (3) at least with respect to certain of the advertising content rules, the rules were not narrowly tailored enough around the potential harm and as a  result were unconstitutional.

So back to the CEO that I am trying to call.  Presumably Alexander would apply to Rule 7.3.  Arguably, the application of Alexander would be, (1) that my commercial speech is protected by the First Amendment; and (2) that New York has an interest in protecting the unsophisticated tort victim; but (3) Rule 7.3 is arguably so broadly written that it is unreasonably infringing my First Amendment rights unnecessarily.  The argument would be that the Rules could easily incorporate a distinction between the solicitation of individuals or for certain kinds of representation where the possibility of abuse is relatively high (i.e. family law, personal injury claims, elder law), and therefore the rule could easily be tailored to fit the danger.

The Bar has a very strong interest in developing a more narrowly tailored rule here. While attorneys are prohibited in many circumstances from informing potential clients about the services that they provide and the relevant legal issues, the massive “consulting” industry is not.  The result is that attorneys lose work, and businesses and nonprofits are intentionally or unintentionally misled by management and transactional consultants who have only a limited understanding of the legal issues involved in their work.  From what I have seen, this phenomenon is growing and will continue to grow to the detriment of clients and the economic interests of the Bar.

In short, it is time to revisit the restrictions imposed on attorney marketing and make sure that they are only so broad as necessary to combat any potential harm.