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Monthly Archives: April 2014

New ABA Ethics Opinion on Lawyers Investigating Jurors Online

The ABA has recently issued a new ethics opinion (Lawyers Reviewing Jurors’ Internet Presence) on lawyers using the Internet to research jurors. The opinion offers no real surprises. It is ethical for attorneys to use the Internet to research jurors so long as they don’t contact jurors to include friending them on social media. Several jurisdictions have already reached this conclusion. I am still waiting for the opinion which holds that attorney research of jurors is now part of professional competence.

What I did find noteworthy is where the opinion diverges from other jurisdictions. The New York City Bar has previously held that if a social media provider like Twitter contacted the juror rather than the lawyer this still was an ethics violation. For example, the attorney subscribes to the juror’s tweet and Twitter generates an automated message alerting the juror that she is now being followed by that attorney. The NY City Bar says this might be an ethical violation while the ABA says that it is not because

[t]he lawyer is not communicating with the juror; the ESM service is communicating with the juror based on a technical feature of the ESM. This is akin to a neighbor’s recognizing a lawyer’s car driving down the juror’s street and telling the juror that the lawyer had been seen driving down the street.

Discussion by the trial judge of the likely practice of trial lawyers reviewing juror ESM during the jury orientation process will dispel any juror misperception that a lawyer is acting improperly merely by viewing what the juror has revealed to all others on the same network. 

I think NY got it wrong and the ABA got it right.

Another interesting topic raised in the opinion concerns turning over the information discovered about jurors. The rule is fairly clear when the information is criminal or fraudulent. The attorney must turn it over. However, as noted by the opinion, the rules regarding information falling outside of those two areas is “muddled.”  (It should be noted that certain jurisdictions provide more guidance in this area than the Model ABA Rules.)  In an effort to add some clarity to this area of law, I have previously suggested in a law review article (Investigating Jurors in the Digital Age: One Click at a Time) that the courts or the bar should either either update the ethical rules or make information about jurors subject to the rules of discovery.

Technology and Judicial Ethics

Technology and Judicial Ethics


David C. Hricik

This paper was written for judges to assist them in understanding: their obligations concerning Facebook and other social networking sites, including “friending” lawyers; the confidentiality of email, texts, and other e-communications; the use of the Internet by lawyers to research jurors or potential jurors; the use of the Internet by judges to research the facts and law; and how to admonish jurors not to use the Internet to research the case before them or to discuss it prior to deliberations.

Social Media and Privacy CLE: May 7th

The ABA is hosting a CLE on social media’s impact on our notion of privacy. The CLE will occur between 1-2:30 on 5/7/14. A description is provided below along with a list of who will be teaching the course. To register or to receive additional information go here.

Privacy has taken on a whole new concept in the age of social media. Join our panel as we:
Review recent caselaw and current and proposed state legislation
Explore professional responsibility requirements for attorneys when using social media
Discuss privacy and potential constitutional issues
Learn best practice tips for crafting social media policies


Richard Santalesa, The Sm@rtEdgeLaw Group, Fairfield, CT

Christopher Hearsey, Bigelow Aerospace, Washington, DC

Adrian Fontecilla, Proskauer Rose LLP, Washington DC

Peter Gillespie, Fisher & Phillips LLP, Chicago, IL

Jessica Herrera-Flanigan, Monument Policy Group, Washington D

Witness Attempts to Contact Juror Through Craigslist

A story out of Allentown, PA provides just one more example of social media’s impact on jurors.  Here, a witness in the Amanda Hein first-degree murder trial was apparently lovestruck by one of the jurors so much so that he attempted to contact the juror through social media.  The witness posted the following ad on Craigslist Missed Connections:


you were a juror in the allentown baby killing case – m4w (Easton)

© craigslist – Map data © OpenStreetMap

669 washington street

(google map) (yahoo map)

eye color : green height : 6’2″ (187cm)

You…blonde juror 2nd row in the Amanda Catherine Hein case Me…testified first thing Wednesday morning about an online/phone relationship with Amanda You…smiling at me Me…making eye contact and trying not to make it obvious I was smiling back

Hope you get done soon

hope to hear from you

  • do NOT contact me with unsolicited services or offers


The court learned about the ad on Wednesday and the jury returned its guilty verdict on Thursday.  Fortunately for the prosecution, it appears that the juror in question was unaware of the ad.  Thus, it is highly unlikely that the actions of the witness could lead to a mistrial or new trial for the defendant.

However, this case illustrates why judges must educate everyone in the courtroom to include witnesses about what they can and cannot do on social media.  The actual Craigslist posting can still be accessed online.

Tweeting to Totality: Critical Textual Analysis of Twitter’s Terms of Service (New Law Review Article)

Tweeting to Totality: Critical Textual Analysis of Twitter’s Terms of Service (New Law Review Article)

Jasmon Bailey


Justin Brown


Abstract:     When afforded access and literacy, today’s public has the opportunity to engage in a whole terrain of mediated practices enabled by digital technology and the Internet, including varied forms of social media, user-generated content, and video streaming from over-the-top providers like YouTube and Hulu. In just about every one of these instances users have granted permission to the terms of use or service agreements, including their broadband provider, social media site, smartphone application and GPS service.

Research suggests that consumers pay very little attention to such agreements and often bypass reading them completely if at all. But ironically, such terms of use and service agreements and their disclosure confer a bundle of rights and legal provisions to providers. In legalese, these arrangements generally take the form of non-negotiated contracts of adhesion and more or less define providers’ relationships with their users. Sociologically, arrangements such as these are completely social and thus warrant attention to the historical, cultural, social, political, and economic conditions that structures, maintains, and constrains the provider-user relationship.

While much of the discussion on terms of use agreements focuses on the legality of such contracts, scholarship neglects just how comprehendible these agreements are for average laypersons. Even if a user takes the time to review these click wrap agreements, admittedly there is a high degree of jargon and verbosity that often obfuscates not only the reading but meaning of such terms of use or service.

To help better illustrate these concerns this paper seeks to explore the following research questions: How do non-negotiated terms of use agreements effect the provider-user relation? Does the provider-user relationship, as influenced by non-negotiated terms of use agreements, resemble the power-prestige structure of a society? This paper thoroughly applies critical textual analysis to Twitter’s terms of service, rules and privacy policy. As one of the top five social media sites with 645 million users, Twitter represents a diverse demographic of adult online users in terms of gender, age, race, education, geographic location and income and serves as one of many examples of a widely used platform that requires users to consent to a terms of service agreement.

Specifically, critical textual analysis is used to examine how these agreements structures the provider-user relationship to resemble the power relations and social inequalities typically found in a society structured by power and prestige. We argue that the non-negotiated contract or terms of agreement is neither mutually consensual or beneficial. Even though the Internet is celebrated for its decentralized structure, we illustrate that the social arrangement of the terms of use agreements is not democratic – but imperialistic and capitalistic. Within this vein, the words, content and context rendered in the terms of the contractual agreement are not typically understood by majority of users.

Social Media CLE on June 6th

This June 6th the Illinois Institute of Continuing Legal Education will offer its 2nd Annual CLE on Social Media and the Law. The CLE can be seen live and online. To register or to see an agenda go here. A description of the CLE is available below.

Social Media is a new frontier for many lawyers, litigants, judges, jurors and witnesses. From advising clients on running their businesses to running your own law firm, to marketing your practice, to trying a case, to discovery and jury instructions, social media has infiltrated the profession. The explosion of social media has created unprecedented legal risks for clients and law firms alike. It is critical for large and small firms alike to understand how to effectively use and advise clients on social media.

IICLE®’s 2nd Annual Social Media Law Institute is a forum for litigators, in-house counsel, labor, employment and business law attorneys, government or private practice attorneys and other legal professionals who want more information about the legal implications of social media across a broad variety of topics. Knowledgeable professionals on social media in a variety of venues join the faculty for this program, creating materials and presentations to help you be better prepared for handing these issues in your practice.

Viable Solutions to the Digital Estate Planning Dilemma: New Law Review Article

Viable Solutions to the Digital Estate Planning Dilemma


Jamie Patrick Hopkins

Ilya Lipin





Abstract: Countless people are dying without proper digital estate plans in place, leaving billions of dollars of assets unaccounted for in the digital world. This is occurring in part because of individuals are often unaware that traditional estate planning tools and techniques, such as wills, are ill-equipped to handle the unique challenges of digital estate planning.  As a result, the majority of the Americans are vastly unprepared for the digital afterlife, unintentionally foregoing digital estate planning altogether and leaving their assets trapped in digital purgatory.

With the ongoing growth in our reliance on technology, interaction via social media, digitization of individual’s property, and further advancement of new Internet technologies, the amount and value of our digital assets are growing exponentially. In response to this immediate need for digital estate planning and management of digital assets, some businesses began to offer their users the ability to plan for the disposition of their digital assets upon their death. However, due to the novelty of this area of law, the business solutions currently afforded often leave more questions than answers about what happens to the individual’s digital assets, raise concerns about privacy and security, and augment disputes over their overall effectiveness in the estate plan. This Essay examines the importance and increasing prevalence of digital assets, discusses the challenges facing traditional estate planning in the growing world of digital assets, and suggests a workable strategy for the creation of a well-developed and manageable digital estate plan.