On May 11, 2017, the Commercial and Federal Litigation Section of the New York State Bar Association issued its third iteration of Social Media Ethics Guidelines. As the authors of the Guidelines aptly recognize: “As use of social media by lawyers and clients continues to grow and as social media networks proliferate and become more sophisticated, so too do the ethics issues facing lawyers.” This recent update adds principles regarding professional competence and attorney use of social media, and addresses ethical considerations regarding maintaining client confidences, handling potential conflicts of interests related to social media, following clients’ social media, and communicating with judges via social media. Issued in 2014 and updated in June 2015, the Guidelines aim to provide “guiding principles” as opposed to “best practices” for the modern lawyer’s evolving use of social media. The authors acknowledge the guidelines’ inherent inability to define universal principles in the face of varying ethics codes, which “may differ due to different social mores, the priorities of different demographic populations, and the historical approaches to ethics rules and opinions in different localities.” The Guidelines are based upon the New York Rules of Professional Conduct and New York bar associates’ interpretation of those rules....
Twitter’s ubiquitous 140-character-or-less tweets are not, the company argues, sufficiently similar to email or other forms of stored electronic information to warrant lumping them together with the likes of Google, Microsoft, Facebook, Yahoo!, or Apple, all of which have agreed to restrictive limitations on their public reporting of government surveillance. Twitter has sued the U.S. Government in federal court in California to make its point.
We have been covering a case pending in the Criminal Court of the State of New York in which the State sought discovery and use of a criminal defendant’s tweets for use in his trial. Malcolm Harris was accused of disorderly conduct when he and others allegedly marched on to the Brooklyn Bridge during an Occupy Wall Street protest. For nearly a year, Harris argued in court papers that he was not guilty because the N.Y.P.D. had allegedly led the protestors onto the roadway of the Brooklyn Bridge as the protest swelled.
Recently, a New York City public school teacher nearly lost her job after posting derogatory remarks on her private Facebook page about hating her students, whom she called “devil[‘]s spawns.” Although a hearing officer concluded that her employment should be terminated, the Supreme Court vacated that decision, which a unanimous panel of the Appellate Division affirmed.
As we reported in the Gibbons E-Discovery Law Alert in May 2012, “Reg FD” could present a potential pitfall for those that post material non-public information via social media platforms. In early December 2012, that “pitfall” became a reality for Netflix Inc. CEO Reed Hastings. In July 2012 Hastings published on his public Facebook page a 43-word post concerning viewership statistics, including that Netflix subscribers had watched one billion hours of video the previous month.
We previously reported on the First Appellate Department’s refusal to stay Judge Sciarrino’s order that Twitter turnover criminal defendant, Malcolm Harris’s tweets, which will allegedly contradict his defense in a criminal action. Facing the threat of a contempt order, Twitter produced to Judge Sciarrino the tweets in question on September 14. However, Harris previously brought an Article 78 proceeding against Judge Sciarrino (In the Matter of Harris v. Sciarrino, Index No. 103569/12) and filed a motion seeking a stay of Judge Sciarrino’s order that the tweets be produced to Judge Sciarrino for in camera review before production to the District Attorney. On September 27, 2012, Judge Huff denied Harris’s motion to stay enforcement of Judge Sciarrino’s order pending the resolution of the Article 78 proceeding. Although Harris argued pursuant to CPLR 7803 that Judge Sciarrino had acted outside of his jurisdiction, the District Attorney successfully countered that criminal defendants may not “interrupt their prosecutions to launch what is in essence a pre-conviction collateral attack using Article 78 as a vehicle.” Stay tuned for further updates….
That didn’t take long. A panel of the Appellate Division, First Department in People of the State of New York v. Harris, Index No. 080152/2011 has denied Twitter’s motion for a stay of enforcement of the Trial Court’s order requiring the production of Mr. Harris’s tweets. On Tuesday September 11, the Trial Court warned Twitter during a hearing on the District Attorney’s motion to hold Twitter in contempt that Twitter must produce the information in question by Friday September 14 or face a finding of contempt. Manhattan Criminal Court Judge Sciarrino further warned that he would review Twitter’s most recent quarterly financial statements in determining the appropriate financial penalty if Twitter does not obey the order. Denial of the stay and the Trial Court’s expected insistence on compliance puts Twitter in a difficult position as production of the tweets will effectively moot their appeal of Judge Sciarrino’s order. Twitter’s next move should be interesting. We will continue to keep you apprised.
We previously reported on the New York District Attorney’s attempts to obtain tweets by a criminal defendant in People of the State of New York v. Harris, Index No. 080152/2011 and the corresponding challenges asserted by the individual user/defendant and Twitter itself on May 23 and June 7. Defendant is accused of disorderly conduct for allegedly having blocked traffic during an Occupy Wall Street protest. The District Attorney has sought defendant’s simultaneous tweets that allegedly will undermine his defense that he was forced onto the street by police officers. The trial court first denied defendant’s motion to quash the subpoena served on the social networking site Twitter and then denied Twitter’s own motion to quash.
As followers of this blog know, we often bring you updates regarding the ever-changing world of social media, in particular, how it affects attorney ethics or judicial proceedings, or how it is used by financial services industry participants. Here, as the closing ceremonies for this year’s London Olympics have recently ended, we pause to reflect how the popularity of social media has “changed the game,” resulting in the world’s first “Social Media Olympics.”
We previously reported on the New York District Attorney’s attempts to obtain tweets by a criminal defendant in People of the State of New York v. Harris, Index No. 080152/2011 on May 23, 2012 and the corresponding challenges asserted by the individual user/defendant and Twitter itself on June 7, 2012. The Court first denied defendant’s motion to quash the subpoena served on the social networking site Twitter, ruling that the defendant, charged with disorderly conduct after allegedly marching onto the Brooklyn Bridge during an Occupy Wall Street protest, had no reasonable expectation of privacy in communications of this type and lacked standing to seek the protections of the Stored Communications Act. Seeing its user fail in his efforts to quash the subpoena, Twitter took the matter into its own hands, moving for the same relief as defendant and ultimately obtaining the same result. The more recent decision, which addressed Twitter’s challenges, raised considerable buzz in legal and social media circles as a case of first impression because it concerned (1) a criminal rather than a civil matter and (2) a motion by a social media site rather than an individual user.