Ventura County Inns of Court 2010-11 TEAM 8

This is a reference page for the program presented on May 12, 2011 by the Jerome H. Berenson Inn of Court 2010-11 TEAM 8

Thank you for attending our program, "SOCIAL MEDIA IMPACT."

We hope that you find the following links and other information useful. All of our team members contributed research to developing these references. Please report dead links to Terence Geoghegan at "tg at iswest dot com." *

Please also report significant new articles of interest on the subject to the same address. This page will be updated regularly, on this update page HERE, as a service to the members of the Jerome H. Berenson Inn.

Our program was inspired by an article by James J. Alfini, Esq., published in the journal of the American Inns of Court, The Bencher, for November/December, 2010: Judicial Ethics, The Internet, and Social Media. Many of the subjects discussed below are summarized in that article.

The story of the "runaway jury foreman" in Judge Brodie's court here in Ventura is told in this article by Pamela MacLean in the April, 2011, California Lawyer, also reprinted here.  The unpublished appellate decision in the case can be searched under People v. Ortiz, 2009 WL 3211030 (Ct. App. 2d Dist. Cal. Oct. 8, 2009). It's mentioned here, in one law firm's page of case updates on this and similar topics.

As bizarre as it may seem, the dialogue you heard tonight was all based on true events. For example, the Scene 2 disciplinary hearing for "Justice Triplexxx" was based upon an investigation of Chief Judge Alex Kozinski of the Ninth Circuit, concerning allegations that he maintained a pornographic website. See the Judge Alex Kozinski Scandal. (In California, such disciplinary matters are handled by the Commission on Judicial Performance, which maintains a website here.)

The "donkey" video is on YouTube. In fact, it's all over YouTube. It can be searched with terms like "donkey rapes man." WARNING: view at your own risk. Just because it doesn't violate YouTube's site rules against pornography does not mean that some viewers won't find it very offensive.

The "camel toe" images were on Kozinski's server. This is discussed (as is the donkey video) by Judge Kozinski's wife, Marcy Tiffany, in a letter defending Judge Kozinski. See the Marcy Tiffany letter, which was written in response to the earlier L.A. Times "exposé" by Scott Glover. This explains the dialogue concerning the defense by Justice Triplexxx's husband, which is also a thinly-veiled reference to recent comments by the wife of U.S. Supreme Court Justice Clarence Thomas. And of course, the "Yerba Maté" line references Virginia Thomas's very public support of the "Tea Party." The issue of bias in an obscenity case arose in the Kozinski affair, in a case called United States v. Isaacs. The entire Kozinski affair--which led to Kozinski recusing himself from Isaacs, calling for an ethics investigation of himself, and later being admonished by a panel headed by Judge Anthony Scirica--is well described in the Wikipedia article on Kozinski.

Judges "friending" lawyers on Facebook is a hot topic. It's discussed in depth by Alfini, supra, and also in this article by Texas lawyer Bruce A. Campbell. We learn that the Judicial Canons of South Carolina and New York allow it, but in Florida it's prohibited. Texas has not yet taken a position, so Judge Susan Criss of Galveston’s 212th District Court avoids conflict by friending all lawyers, but Judge Orlinda Naranjo of Travis County’s 419th District Court "solved the problem" by simply not participating in any social networking.

But some judges aren't getting the message. In North Carolina, Judge B. Carlton Terry was reprimanded for “friending” a lawyer in a pending case, posting and reading messages about the litigation, and accessing the website of the opposing party.

The fundraising demand attributed to our fictional Judge Buster Calvin seems too outrageous to be true. It isn't. It's an exact quote of a cell-phone text message that was "broadcast" to many lawyers by a Kansas judge seeking re-election. See the Alfini article at ¶13 and FN12.

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But these bonehead acts are hardly the exclusive preserve of judges. Lawyers have shown equal aptitude for ethical lapses.

In Illinois, an assistant public defender was charged with blogging confidential details of her representation of criminal defendants, using REAL NAMES AND CASE NUMBERS! The story is set forth here, and is just one of several such cases discussed on the site of a Canadian legal magazine, here.

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OTHER MATERIALS FROM THE AMERICAN INNS OF COURT:

NOTE: you will need to log in as a member of the Inns to access these materials. 

          Program Title: The Ethics of Social Media: Look Before You Facebook

          Presented by the Richard Linn American Inn of Court, 2011-01-13, (free download)

          Program Title: The Reasonable and Ethical Conduct of Attorneys Using Social Media

          Presented by the Sagamore American Inn of Court, 2011-02-10, ($10 download)

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ARTICLES IN THE LOS ANGELES DAILY JOURNAL AND OTHER SUBSCRIBER SITES: 

NOTE: no links are provided for these articles, as a subscriber account is required to search for them.

Daily Journal, January 27, 2011

           “Worker Privacy in Peril” (Employee’s emails sent to her private attorney on her business computer not protected by attorney-client privilege.)

Daily Journal, January 25, 2011

          “Listserv is Fair Game, Paul Hastings Says (Lawyers use email and the internet and listservs at their own peril)”

Daily Journal, January 31, 2011

          “Listserv Off-Limits in Discovery Battle”

Daily Journal, February 3, 2011

          “Is the Mediation ‘Privilege’ the Last Bastion of Confidentiality?”

New York Times, September 13, 2009

          “Illegal Battle: Online Attitude versus Rules of the Bar.”

Advocate (Journal of CAALA), March 2001

          “Spoliation of Evidence”

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SOME MAGAZINE AND JOURNAL ARTICLES THAT YOU MAY FIND USEFUL (WITH LINKS):

The Wall Street Journal, February 22, 2001

          Searching for Details Online, Lawyers Facebook the Jury

          WARNING!!! For non-subscribers to the WSJ, this link will expire IN FIVE DAYS!!!

The Bencher, November/December, 2010

          Complex Ethical Issues of Social Media by Margaret (Molly) DiBianca

California Lawyer, March, 2011

          Seeking User Data by Marcia Hofmann

California Bar Journal, May, 2011

          R u sure u want 2 tweet?, an article by Diane Karpman about ethics rules falling behind the technology of social media 

Gigaom, online, February 26, 2011

          How Social Media Is Pushing the Limits of Legal Ethics by Derrick Harris

The Social Science Research Network, online, January 1, 2010

          An article, Communications and the Internet: Facebook, E-Mail, and Beyond, by David C. Hricik of the Walter F. George School of Law. Following his link leads to others on the subject, such as this one: Ethics of Blawging, from 2006. (Look for the "One-Click Download" link toward the top left of the page.)

Contra Costa Lawyer, online, April 1, 2011

          Social Networking and Legal Ethics: How Do They Coexist? by Randy Wilson

MSNBC, online, April 20, 2011

          An article by Bob Sullivan, Gadget gives cops quick access to cell phone data, discussing commercial means for retrieving cell phone texts (even deleted ones), contacts, call history, and pictures...even GPS tracking history data. 

Forbes, online, May 10, 2011

          Bad MySpace Detective Work Results In Overturned Murder Conviction, by Kashmir Hill

          An article concerning the issues involved in proving "ownership" of social media evidence.

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AUDIO TRANSCRIPTS:

National Public Radio, September 17, 2009

           Talk of the Nation with Host Neal Conan: Social Media Crashes The Courtroom

RELEVANT CASE LAW & OTHER AUTHORITY:

The State Bar of California Standing Committee on Professional Responsibility and Conduct

          Formal Opinion No. 2010-179, interpreting California Rules of Professional Conduct Rules 3-100 and 3-110, Business and Professions Code §6068(e)(1). and Evidence Code §§917(a) and 952. This opinion contains a comprehensive discussion of security issues concerning electronic technology, including but not limited to social media. The discussion begins with the well-known issue of using a laptop to conduct client business on public wireless networks. (And see the link to TrueCrypt, below.)

California Supreme Court

           Silberg v. Anderson, (1990) 50 C3d 205 (More behind-the-scenes hanky-panky, this time between an attorney and a "neutral" evaluator.) 

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ELECTRONIC COUNTERMEASURES:

There are a lot of ways to protect your electronic information...and to figure out how the people you want to investigate aren't protecting theirs!

Here's a Google search on "email encryption."

Here's a Google search on "public wireless network precautions."

Here's a Google search on "Facebook security issues."

And most importantly...don't even think about carrying a laptop that doesn't contain all client data (and other sensitive data--what about your online passwords?) on a separate encrypted disk partition. (A boot-time password is never a bad idea either, but no password will prevent a thief from removing the hard disk, slaving it to another computer, and simply bypassing your operating system. Only disk encryption will do that.)

Here is a link to TrueCrypt, an open-source (read: "free") data-encryption utility that will encrypt your data partition with AES, Twofish, or Serpent algorithms (even "cascading" two or all three of them) for data security far beyond any government or military standard.

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COMMERCIAL LINKS:

From Larry Port, Founding Partner & Chief Software Architect, Rocket Matter, LLC:

Hi there!

Thank you for your interest in our social media materials. Here they are:

Also, if you don't already use these must-have utilities, make sure you famliarize yourself with them:

  • HootSuite.com: A terrific online tool to manage your social media accounts.
  • Bitly: Allows you to shorten links and track the number of clicks on them.
  • Google Analytics: Make sure you track the number of visitors to your blog and marketing site.
  • Feedburner: Allows you to track blog subscribers, create an email form, and perform a whole host of other amazing functionality.

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Reference Notes 2011-05-11 by Terence Geoghegan, from research by the members of the 2010-2011 Team 8 of the Jerome H. Berenson American Inn of Court:

Thomas G. Adams
James A. Armstrong
Terence Geoghegan
Kerry M. Kinney
Kathy Owens
James Prosser
Richard Regnier
Christina Shaffer
Joanna Van Thiel
Constance N.Zarkowski

                                                                                                                         

* This is one of the first rules of electronic security. NEVER publish your address ANYWHERE as plain text! Writing it out with the spaces will reduce the chances of it being "harvested" by most "web crawlers," AKA "spambots." For more information, see this Wikipedia article on email address harvesting, or this one on web crawlers in general.