November/December 2010

THE MAGAZINE OF THE AMERICAN INNS OF COURT

Professionalism
and Ethics Issues
in Today’s
Technology
www.innsofcourt.org
 F R O M T H E P R E S I DENT
The Honorable Donald W. Lemons
W ith the advent of the personal computer, it was
widely proclaimed that people would finally enjoy
more leisure time. This prediction ignored what
we know about the species. Instead, we used whatever
efficiencies were achieved to be more productive, and
if anything, we lost leisure time. And whatever ethical
and professional challenges exist in the practice of law
seem to be magnified by the power of technology. The
Internet, e-mail, cell phones, computer search engines,
digital images, enormous electronic storage capacity,
Facebook, Twitter, My Space—all of these techno-
logical and social developments have presented new
challenges for the legal profession.
Is it proper for a lawyer to “friend” a judge on a social
network system? Is it proper for the judge to permit
it? What about all the lawyers who appear before the
judge who have not been “friended”? Does this social
networking create ethical issues?
What about the lawyer who does not investigate social
networking Web sites and fails to learn potentially
useful information about the opposing party? Does this
failure constitute lack of competence or lack of commit-
ment to the representation of the client?
If lawyers and firms utilize social networking Web sites,
what obligations do they have to constantly monitor the
information on the site—even information placed on
the site by others? Does the failure to do so risk malprac-
tice suits or ethics violations? Does a law firm’s Web site
constitute advertising subject to disciplinary rules?
Electronic communication results in electronic
storage that creates massive archives of information.
Under what circumstances may such information
be destroyed? Does a lawyer with an equivalently
massive discovery request abuse the system? Or would
the failure to make such a request be considered
poor representation of the client? Must there be new
expectations of cooperation among adversaries to
keep the legal system from collapsing under the weight
of ever increasingly complex and expensive litigation?
Some of us remember when communication was
much slower. It took time to dictate or write a letter,
have it transcribed and processed and placed into the
hands of the postal service. The time required to send
such a letter permitted irritation and anger to subside.
Sometimes the lawyer’s assistant would “misplace” the
letter only to “find” it again the next morning when the
passage of time tempered emotion. Now, the passion-
ate missive is only a “send button” away from delivery
2 The Bencher ◆ November/December 2010 ◆ www.innsofcourt.org
by e-mail. One must ask, have professionalism and
civility suffered by such “advances” in technology?
Additionally, one must ask: has the immediacy of
modern communication technology positively or
negatively impacted the quality of lawyers’ profes-
sional lives? Have we created an “electronic tether” to
which the lawyer is always attached, with the expecta-
tion that the lawyer is never out of reach, and that
e-mails and phone calls will be answered immedi-
ately? Does the capability to forward or send copies of
e-mails to many recipients add value to information or
create information overload?
Similarly, advances in technology have allowed
“virtual” meetings where participants may or may not
see one another on a screen. Are attitudes changed
and communication affected by the lack of personal
contact? Surely, there are efficiencies that accrue, but
is something lost as well?
What expectations of privacy are reasonable when a
communication method can be instantly replicated
by forwarding an e-mail? As some very embarrassed
people have found out, what may be intended to
be private may travel at the speed of light around
the world in a matter of minutes. Because we know
this technological possibility, are there enhanced
ethical requirements imposed upon lawyers to assure
confidentiality of client communications?
Does this new technological age require counseling
of clients regarding their record keeping, storage
practices and retention policies? Are there new areas
of training needed for the client’s employees or the
lawyer’s staff?
And what about substantive legal questions exacer-
bated by the Internet like: Can you serve process by
e-mail? Are jurisdictional issues created? What about
choice of law? What about attorney advertising and
solicitation? Do Internet communications affect when
an attorney-client relationship is formed? What about
unauthorized practice of law in other jurisdictions?
Which disciplinary system is charged with supervision?
Does a lawyer risk vitiating malpractice coverage?
Advances in technology have reaped great benefits for
mankind. At the same time, it has created new ethical
and professional challenges for us all. In this issue of
The Bencher, we explore some of these issues. u
 INN THE NEWS

We Are Social—Connect with us 24/7

W e here at the American Inns of

Court are always looking for
new ways to foster excellence in
professionalism, ethics, and civility in
our members and in the legal profes-
sion. We also want to be able to listen
to you, our members, listen to what you
are talking about and join those conver-
sations you might be having. Whether
those conversations are with members
of your local Inn or with other Inn
members across the country, we want
to participate.
One way for us to do that is to use
new tools or technologies when they
become available. Social media offers a
number of new ways for us to engage
with our members. Through the use of
our Web site, our Facebook page and
our Twitter account, we are bringing together people
that share a common interest in the American Inns
of Court and bringing together people that have a
I N T H I S I S S U E…
passion for improving the quality of professionalism Feature Articles
and civility in the legal profession.
■ Complex Ethical Issues of Social Media
For more about us, visit our Web site at Margaret (Molly) DiBianca, Esq. ................................... 8
www.innsofcourt.org ■ Transparency in E-Discovery: No Longer a
Follow us on Twitter. Our handle is @innsofcourt. Novel Approach
Use the hash tag #innsofcourt when tweeting about Michael J. Gray, Esq. and Emmy H. Koh, Esq. . .........12
what’s happening at your Inn. ■ Cloud Computing—Panacea or
Check out our Facebook page at Ethical “Black Hole” for Lawyers
www.facebook.com/AmericanInnsofCourt. Kevin F. Brady, Esq...........................................................16
■ Electronic Discovery and
And coming soon, we will have a private group
Social Networking Sites
in Martindale Hubbell Connected. If you don’t
Francis G.X. Pileggi, Esq. . ..............................................19
already have a profile on Connected, it’s easy and
free to set one up. Just go to http://community. ■ Judicial Ethics, The Internet,
martindale.com to join, and then keep an eye out and Social Media
for the announcement of our new American Inns of Prof. James J. Alfini . .......................................................22
Court group.
Ethics
Spread the word and we will see you online! u ■ Second Circuit Disqualifies Law Firm
for Representation Adverse to
Client’s Subsidiary
Francis G.X. Pileggi, Esq. .................................................. 5

www.innsofcourt.org Regular Features

■ Inn the News................................................................ 3
■ Profiles in Professionalism......................................25
TM

■ Program Spotlight....................................................27

The Bencher ◆ November/December 2010 ◆ www.innsofcourt.org 3

 INN T H E N E W S
The Vassar B. Carlton American Inn of Court
A merican Inns of Court are a
great tradition in law, and
what better way to appreciate
that tradition than to visit the very
places of the beginning?
This year the Vassar B. Carlton
American Inn of Court of
Melbourne, Florida, offered a trip
to London, England and Dublin,
Ireland. The main purpose was
to visit the Honourable Society
of the Middle Temple in London
and the the Honorable Society of
King’s Inns in Dublin, to visit their
courts and to meet colleagues.
The trip was organized by Inn
President, Judge Kelly McKibben.
Also attending were her husband
Scott, Senior Judge Clarence and
Shirley Johnson, Chief Judge
Preston and Betts Silvernail, Judge
Tonya and Giles Rainwater and
attorney Robin Petersen.
The group participated in a
guided tour of The Tower of
London, Westminster Abbey,
a view of Parliament, and the
changing of the guards at
Buckingham Palace.
The group’s stop at The
Honourable Society of the Middle
Temple, one of the four great Inns
Group having dinner on their first night in Dublin, Ireland. From
left to right, Circuit Judge Tonya Rainwater, Betts Silvernail, Chief
Judge Preston Silvernail, County Court Judge Kelly McKibben, Scott
Crandall, Retired Circuit Judge Clarence Johnson, Shirley Johnson,
Circuit Court Judge Charles Roberts and Attorney Robin Petersen.
4 The Bencher ◆ November/December 2010 ◆ www.innsofcourt.org
Members of the Vassar B. Carlton AIC of Melbourne, FL, at the Royal Courts of Justice in
London, England. From left to right, Circuit Judge Tonya Rainwater, Chief Judge Preston
Silvernail, Attorney Robin Petersen, Circuit Judge Charles Roberts, Shirley Johnson and
husband Retired Judge Clarence Johnson, Scott Crandall and wife County Court Judge
Kelly McKibben, President of the Carlton Inn.
of Court in London, was impres-
sive. The Middle Temple and the
nearby dining hall are so very
special, for the ancient carvings
and the stained glass, as well as the
ancient traditions embodied on all
sides. They were privileged to tour
the Temple and to luncheon in the
same hall used by famous lawyers,
judges, kings, and queens.
The tradition of Inns of Court was
also established in Ireland. Indeed
members of the The Honorable
Society of King’s Inns in Dublin
are often also members of one of
the four London Inns. They met
the Under Treasurer of the Inn,
Camilla McAleese, and received a
tour of the spectacular King’s Inn,
itself replete with ancient history
and tradition.
After the tour of the Inn, Camilla
set them on their way to lunch
at Hanley at the Bar, a restaurant
where the solicitors and barris-
ters gather, and afterwards to
tour the “Four Courts”, the main
courts in Dublin. At lunch, the
group’s paths fortuitously crossed
with a young first year lawyer,
Conor Nelson. With typical Irish
hospitality he volunteered to
take the group to the courts, and
also escorted them to the new
criminal courts building. Conor
arranged for the group to observe
a murder trial and to meet the
presiding judge, The Honorable
Mr. Justice Patrick J. McCarthy.
From Inns in the Old World,
where by virtue of a fine legal
and philosophical education,
“benchers” there became
“framers” in the New World, of a
new philosophy of freedom and
independence. And in the Inns
of the beginning, we discover
ourselves. The Inns of today are
still places of learning; places
where pupils learn law and ethics
from barristers and masters, break
bread in a collegial setting, and
participate in legal exercises. In
the Inns of the beginning, we
discover Inns of today. u
NOTE: This article was edited to fit. For
the full text of the article please visit our
Web site: http://tinyurl.com/2dwv6xl.

Second Circuit Disqualifies Law Firm for Representation
Adverse to Client’s Subsidiary
A parent company and its subsidiary may be
considered one client for disqualification
purposes, and may be the basis for disqualify-
ing a law firm that represents the parent company
but at the same time is adverse to that subsidiary in
concurrent representation. This was the reasoning
of the U.S. Court of Appeals for the Second Circuit in
GSI Commerce Solutions, Inc. v. BabyCenter, L.L.C., __
F.3d __, 2010 WL 3239436 (2d Cir. 2010).
Background
BabyCenter, L.L.C. is a wholly-owned subsidiary of
Johnson & Johnson, Inc. (“J&J). The law firm involved
in this case represented J&J at the same time it
represented GSI Commerce Solutions, Inc. in litiga-
tion adverse to BabyCenter. J&J, which the law firm
represented in other ongoing but unrelated matters,
and BabyCenter objected to the representation of
GSI by the law firm. The U.S. District Court for the
Southern District of New York disqualified the law
firm from the concurrent representation and the
Second Circuit affirmed.
J&J entered into a fee agreement with the law firm in
which the law firm defined the scope of its representa-
tion as limited to compliance matters involving data
protection regulations in the European Union. This
agreement specifically provided that J&J waived any
conflicts related to the law firm’s potential adverse
representation in patent litigation for Kimberly-Clark
that may have been adverse to an affiliate of J&J named
McNeil PPC, Inc. In addition to waiving potential
conflicts regarding patent matters for Kimberly-Clark,
J&J also had agreed to a “standard addendum” in the
fee letter that clarified that the representation of J&J by
the law firm did not include a representation of any of
its affiliates or subsidiaries, directors, officers, members,
or any other variations or agents of the parent entity.
It also clarified that the attorney-client relationship
will be deemed terminated upon the completion of
the limited engagement whether or not a letter was
sent to confirm the termination of the representation.
Nonetheless, the law firm did represent BabyCenter
in privacy-related matters although that represen-
tation was unrelated to the litigation involving an
E-Commerce Services Agreement between BabyCenter
and GSI, which is the subject of the litigation about
which the disqualification motion pertains. The court
also observed that the law firm did not appear to
receive any confidential information relevant to the
agreement between BabyCenter and GSI.
The Bencher ◆ November/December 2010 ◆ www.innsofcourt.org
ETHICS COLUMN
Francis G.X. Pileggi, Esquire
The court found that BabyCenter shared the same
legal department as J&J and it also relied on J&J for
accounting, audit, cash management, employee
benefits, finance, human resources, information
technology, insurance, payroll, and travel services.
Analysis
Relying on several decisions from the Second Circuit,
the court stated that the mere violation of the state
disciplinary codes would not necessarily warrant
disqualification. Rather, disqualification would be
warranted only if the “attorney’s conduct tends to
taint the underlying trial.” One established ground
for disqualification is concurrent representation of
one existing client in a matter adverse to another
existing client. (citing Cinema 5, Ltd. v. Cinerama, Inc.,
528 F.2d 1384, 1387 (2d Cir. 1976)). The court referred
to the ABA Model Rule of Professional Conduct 1.7,
comment 34 (2006), for the position that a “lawyer
who represents a corporation or other organization
does not, by virtue of that representation, necessar-
ily represent any constituent or affiliated organiza-
tion, such as a parent or subsidiary.” This comment
refers to the “entity theory” of representation but the
comment also notes that an attorney may not accept
representation adverse to the affiliate of a client if
“circumstances are such that the affiliate should also
be considered a client of the lawyer….” Id.
The court concluded that the focus in the analysis
should be “on the reasonableness of the client’s belief
that counsel cannot maintain the duty of undivided
loyalty it owes a client in one matter while simultane-
ously opposing that client’s corporate affiliate in another.”
(citations omitted.) The factors considered by other
courts in determining whether a corporate affiliate
conflict exists include the following: (i) the degree of
operational commonality between affiliated entities;
and (ii) the extent to which one depends financially on
the other. Other courts have suggested that the status
of an affiliate as a wholly-owned subsidiary of the client
may suffice to establish a corporate affiliate conflict.
(citing Carlyle Towers Condo Association, Inc. v. Crossland
Savings, FSB, 944 F.Supp. 341, 346 (D.N.J. 1996)).
In the instant case, the court reasoned that
BabyCenter substantially relied on J&J for an
extensive array of services and support. Second, the
court relied on the fact that both entities use the
same in-house legal department to handle their
Continued on the next page.
5
 Ethics Column continued from page 5.
legal affairs, and a member of the legal department
from J&J serves on the board of BabyCenter. Finally,
the court emphasized that BabyCenter is a wholly-
owned subsidiary of J&J.
Importantly, the court also concluded that J&J did
not waive the corporate affiliate conflict as part of the
fee agreement with the law firm, despite a related
limited waiver that did not apply to the subsidiary
or the issue involved in this case. Although the court
referred to some commentary and cases that allowed
a waiver of a conflict involving a subsidiary, no such
waiver was clearly obtained in this matter.
The court concluded by explaining that the
representation of an existing client adverse to the
subsidiary of another existing client implicates the
duty of loyalty, and there was no waiver of that duty
that would prevent disqualification here.
Comparison
Other courts have reached similar conclusions
when a law firm did not obtain the necessary waiver
in connection with claims against an affiliate of a
company that the firm had represented. See Board of
Managers of Eleventh Street Loftominium Association v.
Wabash Loftominium LLC, 2007 WL 2416817 (Ill. App.
1 Dist. Aug. 27, 2007). But compare, Boston Scientific
Corporation v. Johnson & Johnson, Inc., 647 F.Supp.2d
369 (D. Del. 2009) (court denied a motion to disqualify
What’s on Your Mind?
You are invited to submit
original unpublished
articles to be considered
for publication in
The Bencher.
6 The Bencher ◆ November/December 2010 ◆ www.innsofcourt.org
a law firm from representing Boston Scientific in claims
against Wyeth despite the same firm’s representation
of Wyeth subsidiaries in other matters and reasoned
that despite violation of Rule 1.7, disqualification
was not warranted.) See Elonix I.P. Holdings, Ltd. v.
Apple Computer, Inc., 142 F.Supp.2d 579 (D. Del. 2001)
(separate offices of same large firm representing and
suing international corporation in unrelated matters,
would not be disqualified on conflict of interest basis.)
See generally PharmAthen, Inc. v. SIGA Technologies,
Inc., 2009 WL 2031793 (Del. Ch. July 10, 2009) (court
focused on contacts between the client and the lawyer
to determine whether it was reasonable for the client
to believe that the attorney was acting on its behalf as
counsel in the absence of a formal retainer agreement.)
Although it was mentioned in the opinion, the court
in the GSI case did not devote a substantial portion
of its analysis to addressing the factors that would
warrant disqualification even if the applicable Rules
of Professional Conduct were violated. Some of the
Delaware decisions cited above focus substantially
on that aspect of a motion to disqualify counsel. It is
not clear whether Delaware courts would reach the
same conclusion as the GSI court. u
Francis G.X. Pileggi is the founding partner of the Wilmington,
Delaware, office of Fox Rothschild LLP, an AmLaw 200 firm. His
blog at www.delawarelitigation.com summarizes all the key
decisions on corporate and commercial law from the Delaware
Court of Chancery and Delaware Supreme Court.
Upcoming Bencher
Deadlines and Themes:
March/April 2011
THEME: Lawyers Who Made a Difference
DEADLINE: December 1, 2010
May/June 2011
THEME: Professional Skills Programs
DEADLINE: February 1, 2011
More themes coming soon!
For more information and submission
guidelines, please visit www.innsofcourt.org
or send an e-mail to Rita Zimmerman at
rzimmerman@innsofcourt.org.
 Symposium on the Status of the Legal Profession:
Facing the Challenges of the 21ST Century
GEORGETOWN UNIVERSIT Y LAW CENTER  |   WASHINGTON, DC  |   APRIL 1–2, 2011

Early registration opens November 1, 2010

E
arly registration opens November 1, 2010
for the Symposium on the Status of the
Legal Profession: Facing the Challenges of
the 21st Century to be held at Georgetown
University Law Center March 31–April 2, 2011. The
symposium is presented by the American Inns of
Court and Georgetown University Law Center with
assistance from the Honourable Society of the
Middle Temple in London.
Special presenters will include Justice Sandra
Day O’Connor, Justice Stephen G. Breyer and
Lord Nicholas Phillips, President of the Supreme
Court of the United Kingdom.
This Symposium will provide Inn leaders and
members opportunities to meet and exchange
ideas while fulfilling continuing legal education
requirements coordinated by Georgetown
University Law Center.
For registration materials and information regarding
this exciting opportunity please visit our Web site
www.innsofcourt.org/symposium.
This is one event you will not want to miss.

The Bencher ◆ November/December 2010 ◆ www.innsofcourt.org 7

 Complex Ethical Issues
of Social Media
BY
MARGARET
(MOLLY) DIBIANCA

A
s the popularity of online social networking continues to rise, so do
the number of stories involving the online misadventures of legal
professionals. Lawyers who have been very pro-active with social
media may be the most aware of such stories, if only because they receive
tremendous attention on blogs and Twitter. But, what about lawyers who
do not use social media? It may be surprising to some but social media
presents ethical risks even to those lawyers who do not participate in it.

8 The Bencher ◆ November/December 2010 ◆ www.innsofcourt.org

The Ethical Lawyer Does Not
Ignore Social Media
Competency
One interesting, albeit controversial, question is
whether our ethical duties may require lawyers to be
adept in social media. Rule 1.1 of the ABA Model Rules
requires lawyers to be competent in their represen-
tation of the clients. Has social media become so
engrained in contemporary society that a lawyer who
elects to ignore social media altogether may be unable
to provide truly “competent representation?”
Comment 6 instructs that lawyers “should keep abreast
of changes in the law and its practice.” This suggests
that the duty of competence includes a duty to stay
current in not only the substantive aspects of the area
of law in which one practices but in the procedural
aspects, as well. For example, the American Academy
of Matrimonial Lawyers reports that 66% of divorce
attorneys use Facebook as their primary source for
online evidence. Based on this statistic, can a family-
law practitioner fulfill his duty of competency if he
never incorporates searches of online social network-
ing sites as part of his investigative efforts in divorce
cases? Perhaps the competency standard is not yet
this high. But, if the use of social media tools continues
to increase as expected, it may be possible that, soon,
a basic awareness of social media may be essential to
the competent practice of law.
Diligence
Even if the competency standard does not require
that attorneys be familiar with social media, it may
be required by the duty of diligence as provided by
Model Rule 1.3. Comment 1 provides that a lawyer
should “act . . . with zeal in advocacy upon the client’s
behalf.” If the diligent attorney must be zealous in
pursuing a matter on his client’s behalf, it seems
possible that more than familiarity may be required—
actual use of social media may be necessary.
Take, for example, the divorce scenario discussed
above. If more than half of divorce attorneys say that
Facebook is their best source for online evidence,
then failure to check the site for evidence about your
client’s soon-to-be-former spouse may constitute a
failure to perform due diligence. A divorce attorney
who ignores Facebook and other social network-
ing sites as a source of possible evidence could be
compared to a prosecutor who fails to conduct a
criminal background check on a defendant’s key alibi
witness. Both, it could be argued, may be in violation
of Model Rule 1.3.
This gives rise to a different diligence issue, as well.
Specifically, whether the duty of diligence requires a
lawyer to warn his client against posting potentially
The Bencher ◆ November/December 2010 ◆ www.innsofcourt.org
Lawyers have an ethical duty to
preserve electronic evidence, including
social-networking profiles.
damaging content to her Facebook page. If we
assume that the competent opposing counsel is
almost certain to search online for information about
your client, it seems to follow that you should advise
your client not to post information or pictures that
could negatively impact her case.
Taking the idea a step further, it could be argued that
the duty of diligence requires a lawyer to monitor the
Internet for potentially damaging information about
his client. A lawyer can monitor the Web for his client’s
name using Google Alerts, which is a free tool and takes
just minutes to set up. Once an Alert is created, the
lawyer will receive automatic updates any time new
information is posted containing the client’s name.
If the client does not heed the advice of her diligent
counsel, though, and posts pictures that, perhaps,
do not cast her in the most favorable light, there
could be severe consequences for her case. But her
lawyer warned her—isn’t that sufficient? Perhaps not.
Perhaps the duty of diligence requires the lawyer to
ask that the client accept him as a Facebook friend,
thereby enabling the lawyer to look for himself and
make a determination about whether any of the
client’s postings are potentially harmful. After all,
“appropriate” is an entirely subjective standard.
The Ethical Lawyer Regards
Social Media As Evidence
Spoliation
The ethical quandaries do not stop there. Suppose
you discover that your client’s Facebook page does,
in fact, contain several unsavory images or comments
that the opposing party would be delighted to use
in litigation. Your initial reaction upon viewing this
potentially negative evidence may be to instruct the
client to delete the content or even her Facebook
account. Model Rule 3.4(a) may prohibit the lawyer
from making this recommendation.
Model Rule 3.4(a) prohibit lawyers from unlawfully
altering or destroying evidence and from assisting
others from doing so. Lawyers have an ethical duty
to preserve electronic evidence, including social
networking profiles. And the failure to preserve can
lead to significant sanctions. Instructing a client
Continued on the next page.
9
 Complex Ethical Issues continued from page 9.
to delete evidence, including the client’s Facebook
page, may constitute spoliation of evidence, which
could result in an adverse-inference instruction to a
jury or sanctions against the attorney.
The better alternative is to have the client set her
profile page as “private.” The opposing party will
not have direct access to the contents of her page
but could request the evidence through formal
discovery channels. That is, of course, if the opposing
counsel is diligent.
Relevancy
Model 4.4(a) prohibits a lawyer from using “means
that have no substantial purpose other than to
embarrass, delay, or burden” in representing a client.
Thus, a lawyer may be limited in how he uses what
he finds as the result of an online investigation. In
other words, just because it’s “juicy” doesn’t mean it’s
relevant to the case or ethical to use.
For example, imagine a worker’s-compensation
claimant who alleges to have suffered an on-the-job
back injury. He claims that his injury precludes him
from enjoying his favorite hobby, deep-sea fishing.
You discover a video on YouTube of a deep-sea fishing
competition, clearly a participant, being interviewed
at the start of the event. This evidence would certainly
be relevant in the discovery context and one could
imagine its purpose for impeachment, as well.
But what if there was a second video of the same
interview but posted on YouTube by a different
user. The quality of the second video is not quite
as good. But it runs longer than the first and, at the
end of the clip, the plaintiff gets a good-luck-kiss
from a beautiful woman, who, it turns out, is not the
plaintiff’s wife. You show the plaintiff both clips at his
deposition. He responds with shock to both but is
visibly upset when he sees the playback of his special
moment shared with his paramour.
Before trial, you tell the plaintiff’s lawyer that you
plan to use the second video as evidence. You pick
the second video over the first, despite its lesser
quality, because you think it will encourage the
plaintiff to settle. Under these facts, you risk violating
Model Rule 4.4(a) because the true purpose of using
the video is to embarrass the plaintiff by exposing
his extra-marital affair.
The Ethical Lawyer Ensures
That Those He Supervises
Understand Social Media
Underlying each of these duties are Model Rules
5.1 and 5.3, which hold a lawyer accountable for
the unethical conduct of a person for whom he has
supervisory responsibility. Model Rule 5.1 requires
10 The Bencher ◆ November/December 2010 ◆ www.innsofcourt.org
that a lawyer with direct supervisory authority over
another lawyer make “reasonable efforts” to ensure
that the other lawyer complies with his ethical
duties. Model Rule 5.3(a) requires those lawyers who
manage a firm “make reasonable efforts” to ensure
that the firm has reasonable measures in effect to
assure that lawyers comply with their ethical duties.
And Model Rule 5.3(b) holds a lawyer responsible for
the unethical conduct of his nonlawyer assistant.
The broadest implication of this subset of rules
involves employee policies adopted by law firms. A law
firm that has no social media policy or guidelines in
place would seem to risk violating Model Rule 5.3(a).
Worse yet is the firm that makes no effort to educate
its lawyers about the ethical risks inherent in social
media. Just as firms warn their lawyers about
the latest fraud schemes being perpetrated via
the Internet, so should firms warn lawyers about
the dangers of careless use of social media. And
Model Rule 5.3(c) requires the firm to educate its
non-lawyer personnel, as well.
The Pennsylvania Ethics Committee addressed a
lawyer’s ethical obligations in the context of non-lawyer
staff who search for potential litigation evidence on
social networking sites. The committee concluded
that it would be unethical for a lawyer to instruct (or
permit) a non-lawyer personnel to attempt to “friend”
a non-party witness for the purpose of accessing
information on the witness’ Facebook page. Unless the
lawyer’s agent expressly disclosed who he was and
the purpose of his friend request, the lawyer would be
engaged in impermissible deception in violation of
Model Rule 8.4. Phila. Bar Assoc. Op. 2009-02.
The advisory opinion implicates several of the rules
addressed above. For example, if the non-lawyer
personnel had suggested the idea to the attorney,
Model Rule 1.1 seems to require the attorney to at
least understand the concept of “friending” before
responding to the suggestion. Model Rule 1.3 seems
to suggest that the diligent attorney would ask the
non-party witness about her social networking use
during her deposition and issue additional informa-
tion via formal discovery requests where appropriate.
And Rule 5.3 would seem to require that the attorney
affirmatively communicate the holding of the Ethics
Committee’s ruling to all non-lawyer personnel.
The Ethical Lawyer Understands
the Impact of Social Media on
Business Development
The aversion that many lawyers have to social media
has led to an unusual type of ethical issue. Although
some lawyers may not want to participate in social
media, they (or someone above them in the law firm
hierarchy) realize the potential value of the medium
as a business development tool. As a result, many
lawyers rely on others for at least some portion of
their business development efforts. For example, at
some firms, attorneys’ LinkedIn profiles are created
by the firm’s marketing department.
Profiles Created by Lawyers
Online profiles are commonly used on social
networking sites as the user’s online biography,
similar to what one may find on the attorney’s firm
Web site. Some profiles are more extensive than
others, though. For example, on LinkedIn, users can
post tremendous amounts of information in their
profiles, making them look more like a resume. On
Twitter, though, users get just 160 characters in
which to write their “bio.”
A profile created by a lawyer on a social networking
site must comply with the ethical rules on advertis-
ing. Certainly, this may be reasonably obvious to a
lawyer who regularly uses LinkedIn or Twitter. But
this is not necessarily the case for a lawyer who
creates an online profile in a short-lived moment
of social media enthusiasm, but never visits the
site again. Or, similarly, when the firm’s marketing
department creates profiles on the behalf of the
firm’s lawyers, none of who intend to participate in
the social network’s online community.
Profiles Created by Others
Is the lawyer responsible for inaccurate or misleading
information posted to his profile, even if it is posted
by a third party? And what if the third party poster is
anonymous? On the a lawyer-rating site Avvo.com,
for example, “clients” can post anonymous “reviews”
of lawyers. The creation of an online profile does carry
ethical risks due to the ability of third-parties to post
reviews, endorsements, or otherwise leave comments
on the profile without the attorney’s consent. One
easy preventative step is to include a disclaimer with
any profile in which you hold yourself out as a lawyer.
But a disclaimer may not always suffice.
The South Carolina Bar Association issued an advisory
opinion in 2009, determining that a simple disclaimer
on a lawyer’s profile may not be sufficient to satisfy
the lawyer’s duty to avoid misleading or untruthful
statements. S.C. Ethics Advisory Op. 09-10 (2009). The
opinion indicates that a “client review” would actually
constitute a “testimonial” or “endorsement” under Rules
7.1(d) and (b). In South Carolina, lawyers are prohibited
from “allowing publication of” endorsements that are
misleading or likely to create unjustified expectations.
This phrase, the opinion concludes, means that lawyers
will be responsible for what others post about them.
According to the South Carolina opinion, once a lawyer
claims or creates his profile, he becomes ethically
The Bencher ◆ November/December 2010 ◆ www.innsofcourt.org
obligated to monitor it to ensure that it remains free of
any prohibited advertisements by others.
Even an entire attorney profile can be “claimed” by a
law firm without the attorney’s express consent. The
firm need only complete a simple form letter, listing
the attorneys for whom the firm is claiming their
Avvo profile and identify a contact person at the firm
who will be responsible for updating the profiles
being claimed. Put differently, an administrative
assistant in the marketing department of your firm
could have created your profile and be authorized to
make changes to it.
The potential ethical implications in this type of
“ghostwriting” for online profiles of attorneys are
numerous, if not obvious. As discussed above, even if
the firm’s marketing department has been delegated
the task of claiming and updating profiles for the firm’s
attorneys, it is the ethical responsibility of each attorney
to ensure that the information in the profile—and all
comments posted to the profile—are not misleading
or untrue. In addition to being responsible for monitor-
ing his profile, it would seem that the lawyer, or at least
the managing partners of the firm, would be responsi-
ble for ensuring that those who are assigned the initial
task of creating the profiles are knowledgeable about
what is and is not ethically permitted.
This type of third party posting was a central issue in
disciplinary proceedings brought against a Florida
judge, who was reprimanded for representations
she made in her 2008 campaign. Specifically at issue
was the use of the word “re-elect” in the link to a
campaign commercial posted on YouTube. The judge
had been appointed in 2005, so the word, “re-elect,”
was potentially inaccurate or misleading. The link
and video had been posted by a political consultant
without the judge’s knowledge but the judge took
responsibility during disciplinary proceedings. In re
Angela Dempsey, No. SC09-1747 (Fla. Feb. 4, 2010).
Conclusion
All lawyers should be cautious to comply with
their ethical duties in the context of social media.
Even those who do not participate in social media
should be aware of the potential dangers that
exist. The issues are many and complex and should
be expected to change and develop with time.
Until lawyers’ duty of competency require actual
knowledge of social media, ethical best practices
suggest that we familiarize ourselves with the
medium at least enough to consider the issues in an
educated manner. u
Margaret (“Molly”) DiBianca is an employment lawyer at Young
Conaway Stargatt & Taylor, in Wilmington, Delaware, author
of the Delaware Employment Law Blog, and member of the
Richard K. Herrmann Technology AIC.
11
 a re nc y
ns
Tra in p
ov er y:
E-D is c

No Longer a
Novel Approach
By
Michael J. Gray
and
Emmy H. Koh

12 The Bencher ◆ November/December 2010 ◆ www.innsofcourt.org

A lthough litigation’s adversarial nature and
the desire to keep decision-making close
to the vest tend to cut against transpar-
ency and cooperation in discovery, being
forthcoming and clear about electronic discovery
reduces unnecessary court battles, eliminates possible
sanctions and, in fact, often reduces the overall costs
of discovery. Indeed, cooperation during discovery is
not a novel idea. Rule 26(f) of the Federal Rules of Civil
Procedure, amended in 2006, expressly provides that
parties are required to meet and confer regarding “any
issues about disclosure or discovery of electronically
stored information,” and specifically, regarding the
scope of discovery, the format of production and the
assertion of privilege. Other states, such as California,
have adopted rules mirroring these requirements. See
California Rule of Court 3.724.
In 2008, the Sedona Conference—a nonprofit
educational institute composed of jurists, attorneys
and academics—issued its “Cooperation Proclamation,”
a three page document calling on participants in the
civil discovery process in the United States to “promote
open and forthright information sharing, dialogue
(internal and external), training, and the development
of practical tools to facilitate cooperative, collabora-
tive, transparent discovery.”The Proclamation goes on
to state that: “Cooperation does not conflict with the
advancement of their clients’ interests—it enhances it.
Only when lawyers confuse advocacy with adversarial
conduct are these twin duties in conflict.” Some may
discount the pronouncement as impractical, but a
closer evaluation of recent decisions reveals its wisdom.
Since the Proclamation’s publication, courts have
increasingly demanded this cooperative approach
to the discovery process, leading to negative
consequences to those that did not. See, e.g., Rimkus
Consulting Group, Inc. v. Cammarata, 688 F.Supp.2d
598 (S.D. Tex. 2010) (spoliation of evidence in bad faith
led to adverse inference sanctions); Pension Comm. of
Univ. of Montreal Pension Plan v. Banc of Am. Sec., 685
F.Supp.2d 456 (S.D.N.Y. 2010) (spoliation instruction and
monetary sanctions were warranted against investors
whose failure to preserve evidence amounted to gross
negligence). As of May 31, 2010, more than 100 judges
across the country have endorsed the Cooperation
Proclamation and more than a dozen courts have
cited to the Proclamation in their e-discovery opinions.
Notably, in William A. Gross Constr. Assoc., Inc. v. Am. Mfg.
Mut. Ins. Co., 256 F.R.D. 134 (S.D.N.Y. 2009), Magistrate
Judge Andrew J. Peck—a leading jurist on electronic
discovery and prolific writer on the topic—noted that:
“It is time that the Bar—even those lawyers who did
not come of age in the computer era—understand”
that electronic discovery requires cooperation and
The Bencher ◆ November/December 2010 ◆ www.innsofcourt.org
transparency between opposing counsel, as well as a
working knowledge of how to preserve and produce
electronically stored information.” Additionally, there
has been a more frequent issuance of judicial opinions
sanctioning parties for their failure to comply with their
e-discovery obligations.
Transparency does not mean showing your cards
as to the merits of the case or your work product;
rather, it means that certain decision-making as to
the scope and collection of electronic documents
is best shared with your opponent and often is a
point of negotiation. As one recent article points out:
“[C]ooperation in discovery simply demands that
parties and their counsel be knowledgeable about
“It is time that the Bar—even
those lawyers who did not come
of age in the computer era—
understand” that electronic
discovery requires cooperation
and transparency between opposing
counsel, as well as a working
knowledge of how to preserve
and produce electronically
stored information.”
their information management systems, the reposi-
tories of relevant data (and those that are likely to
yield the most relevant and accessible data), and the
key players and custodians of information—and that
they engage in an open and frank dialogue about
these items to formulate a discovery plan that will
permit a fair assessment of the case on the merits
and be cost efficient. Toward a Less Hostile Discovery
Process, Ariana J. Tadler, Kenneth J. Withers.
Specifically, attorneys should (1) try to reach to an
agreement, early in the litigation, regarding the
sources of relevant data sources as well as those that
would be searched during the discovery process and
(2) identify the methods that will be implemented
in order to search for relevant information, discuss
these methods with counsel and, on many occasions,
agree to the selection of relevant search terms.
Exchange information regarding the sources
of relevant electronic discovery and attempt
to reach an agreement regarding which
sources will be searched.
Identifying and disclosing the relevant sources of
electronically stored information (“ESI”) early on,
Continued on the next page.
13
 Transparency in E-Discovery continued from page 13.

Identifying and disclosing the relevant sources of

electronically stored information (“ESI”) early on,
even those that will not be searched, and agreeing
with the opposing party regarding the scope of
searches, will avoid costly discovery disputes and
allegations of spoliation, as well as streamline the
discovery process.
even those that will not be searched, and agreeing
with the opposing party regarding the scope of
searches, will avoid costly discovery disputes and
allegations of spoliation, as well as streamline the
discovery process.
For example, in Wells Fargo Bank, N.A. v. LaSalle Bank
Nat’l Association, 2009 WL 2243854 (S.D. Ohio July
24, 2009), the court found that a plaintiff was not
entitled to compel the costly discovery of backup
tapes where the parties had failed to comprehen-
sively discuss the sources of electronically stored
information early on in the litigation, and the
plaintiff filed a motion to compel these tapes four
months after discovery closed, and one month
after the plaintiff learned that the defendant had
not searched the tapes for responsive information.
In declining to “wade into the middle of the ESI
dispute” at so late of a juncture in the case, the court
noted that the parties’ Rule 26(f ) Report submitted
at the start of the litigation referred only briefly, and
quite vaguely, to ESI. The Rule 26(f ) report’s only
reference to ESI provided:
The Parties anticipate electronically stored
information in the form of e-mails, most of the
documents that pertain to the two loans in this
case, as well as some of the general documents
that are expected to be produced. The Parties
are currently discussing the feasibility of
producing electronic versions of all materials
that are produced in this case.
The court then stated that: “[t]he current dispute is a
mild example of the sorts of problems which result
when counsel do not deal systematically with ESI
problems and possibilities at the outset of litigation,
instead of filing one paragraph boilerplate statements
about ESI and waiting for the explosion later.” The
court then denied the plaintiff’s motion to compel,
and also declined the parties’ cross-requests for
expenses and attorneys fees stating that the parties
“could have avoided the expenses of this Motion by
conferring appropriately early in the case about ESI.”
Similarly, in Ford Motor Co. v. Edgewood Properties,
Inc., 257 F.R.D. 418, 427 (D. N.J. 2009), the court,
in resolving a discovery dispute regarding the
adequacy of a party’s document collection
procedure, noted the desirability of parties meeting
to address issues relating to electronic discovery
early in the course of litigation. To that effect, the
court, citing the Sedona Conference with approval,
stated that “agreement by the parties at the outset
as to the mode of collection would have been the
proper and efficacious course of action.”
Attempt to reach an agreement as to the
methods that will be implemented in search
for relevant information, including the
search terms that will be used to gather
responsive documents.
Reaching an agreement with the opposing party
regarding any search and retrieval methodology,
including any search terms to be used in culling
the relevant information, often works best for the
producing party. Recent decisions have shown
that courts more often order parties to come to an
agreement on the issue, and decline involvement
in the process of developing these search methods.
If the producing party does not reveal their search
terms—a decision that will dramatically affect the
scope and number of responsive documents—the
party leaves itself open to later claims of hiding
documents or spoliation. Such claims, which often
are not discovered until much later in the litigation,
may distract the court from the merits of the case
and in some cases lead to drastic consequences,
such as monetary sanctions, adverse inferences and
even judgment being entered.
Some courts are often unwilling to take an active role
in developing automated search methods, leaving
the parties to their own devices. For example, in
William A. Gross Constr. Assoc., Inc., 256 F.R.D. at 136, a
disagreement arose between the parties regarding
the use of appropriate search terms to segregate
relevant e-mails from irrelevant e-mails. After being
put in “the uncomfortable position of having to craft
a keyword search methodology for the parties,” the
court observed that “the best solution in the entire
area of electronic discovery is cooperation among
counsel.” Indeed, the court held that in formulat-

14 The Bencher ◆ November/December 2010 ◆ www.innsofcourt.org

ing keyword searches for retrieval of ESI during
discovery, the parties were required to cooperate,
and, at a minimum, carefully craft appropriate
keywords with input from ESI’s custodians regarding
the words and abbreviations used in the searches.
Moreover, the court required that the proposed
methodology be “quality control tested” to ensure
accuracy in the retrieval of relevant documents.
More recently, in Ross v. Abercrombie & Fitch Co., 2010
WL 1957802, *4 (S.D. Ohio May 14, 2010), the court
was charged with resolving a dispute over whether
the defendant had produced all relevant documents
in response to a production request. The court
discussed the difficulties it would have in determin-
ing whether additional documents existed, and, if so,
the best way for the defendant to go about finding
them. In granting plaintiff’s motion to compel these
documents, the court instructed the parties as follows:
To the extent that Abercrombie does believe
that the documents may still exist, it shall, at the
parties’ conference, tell plaintiff’s counsel how it
would be possible to do a search for them, and
how much, in terms of both time and money,
such a search might cost. The parties are encour-
aged to work out the details of such a search….
If this process does not produce an agreement,
the parties shall contact the Court to arrange for
a telephone conference at which the issue can
be discussed further.
Similarly, in Burt Hill, Inc. v. Hassan, 2010 WL
419433, *8, 10 (W.D. Pa. Jan. 29, 2010), the plaintiff
objected to the overbreadth of one of defendant’s
document requests. While the court agreed with
the plaintiff that defendant’s request for production
was exceedingly overbroad, the court stated that
the parties’ disagreement “elude[ed] meaningful
adjudication” and ordered the parties to “promptly
meet and confer to determine whether the scope
of Defendants’ [production request could] be
narrowed, and/or whether [the parties could] agree
upon computer ‘search terms’ [plaintiff could] use to
identify potentially responsive documents.”
And, In re Direct Southwest, Inc., FLSA Litigation, 2009
WL 2461716, at *2 (E.D. La. Aug. 7, 2009) illustrates
the consequences when one party decides to go it
alone and unilaterally determine the appropriate
search terms to be used in ESI. Upon being called
on to resolve a dispute over the appropriate terms
to be used in a document retrieval search, the court,
admonishing both parties for not resolving the
dispute at the beginning of the discovery process,
simply chose the plaintiff’s search terms over the
defendant’s. The use of the plaintiff’s list of search
The Bencher ◆ November/December 2010 ◆ www.innsofcourt.org
terms—which was “much more detailed” and covered
“virtually all aspects of defendants’ business”—
resulted in an estimated $100,000 of additional costs
to the defendant. Moreover, in light of the fact that
“the issue raised by this motion should have been
resolved at the beginning of the discovery process
and not at the end,” the defendant was given just 10
days to comply with the court’s order.
It should be noted that, before a party proposes
search terms, it should investigate the possible
results of using those precise terms. Courts hold the
parties’ to their agreement. In Capitol Records, Inc. v.
MP3 Tunes, LLC, 261 F.R.D. 44, 50-51 (S.D.N.Y. 2009),
for example, a disagreement arose between the
parties after they had reached agreement regarding
certain search terms. The court held the parties to
their bargain. The court stated,
Whatever the merits of [defendant’s] argument
may be, [defendant] previously had agreed to
limit Document Request No. 3…. Consequently,
[plaintiff ] may restrict their production of
e-mails responsive to the six search terms that
[defendant] suggests to those that also contain
the terms [previously agreed upon].”
Additionally, as to keyword searches upon which
the parties could not agree, the court employed
standards used to determine the discoverability of
actual documents. Ordering the defendant to search
the e-mail files of each custodian identified by the
plaintiffs, the court held that defendant “ha[d] not
shown that the production of all of the requested
employees’ e-mail communications would be
unduly burdensome or that a search of their files
would not potentially yield relevant information.”
Conclusion
Simply stated, judges more and more demand that
parties cooperate and communicate with each other
throughout the electronic discovery process. Failing
to convert to this more transparent strategy puts
you and your client at risk. u
Michael J. Gray leads the Labor & Employment Practice in Jones
Day’s Chicago, Illinois, office. As a leader in the area of electronic
discovery and the use of technology in complex litigation,
Michael speaks across the country to clients and members
of the bar on the topic, writes on the practical implications
of e-discovery obligations, and participates in the Firm’s
e-Discovery Committee.
Emmy H. Koh is an associate in the Labor & Employment
practice group at Jones Day in Chicago, Illinois.
15
 Cloud Computing—
Panacea or Ethical “Black Hole” for Lawyers
By Kevin F. Brady
W
ith the current status of the economy, the
business community has been challenged
to “increase efficiency, reduce costs and
mitigate risks.” This is especially true for the
world of electronic information with sky-rocketing
costs and ever-increasing risks associated with
managing such information. Today, the business
world is being overrun with offers by companies to
provide “cloud computing services” as a panacea for
all of the ills associated with managing information
technology (IT). “The future is here and it is in the
clouds” sounds both comforting and confusing. And
yet the concept has caught on with many companies
16
as well as governments (federal and state) rushing to
be part of this initiative.
Cloud computing is not a new concept, but rather
one that has become a “hot topic” in the business
world as a possible way for companies to offset
the heightened pressures to cut costs and increase
efficiencies regarding IT. Because this is such a hot
business topic, the number of providers of cloud
computing services is also growing on a daily basis
and the faces are familiar—Microsoft, Google, Sun
and Amazon just to name a few. And while there are
significant short and long-term benefits to cloud
The Bencher ◆ November/December 2010 ◆ www.innsofcourt.org
computing, there are some serious risks and ethical would if the data were handled in the traditional
challenges that must be considered. sense—stored within the customer’s infrastructure.
Customers have to contact the third-party cloud
What is Cloud Computing? computing service providers to get access to the
Cloud computing is the “virtualization of the company’s data which can certainly create some
computing process.” It is a type of outsourcing of challenging and unusual issues that would need to
IT. It separates the end user (customer) from the be addressed before the data is stored.
expensive end of the computing process—the
Data Location/Movement. While data stored in the
capital investment needed for applications (software
clouds resides on a server, the third-party service
and hardware) to perform the computing—which
provider generally has the right to move data to
are operated by a third-party service provider.
maximize storage concerns.
The customer’s data is stored “in the cloud” (on
However, that could leave the
the Internet) on information systems owned and
operated by third-parties. End users or customers can
owner of the data wondering With any emerging
where its data resides? It is not
access their data whenever and wherever they chose
through the Internet. Customers pay for what they
uncommon for third-party technology, there are
providers to store one company’s
need to perform the function at hand; they don’t pay
for services until they need to use them. This “pay as
data at a location where many a number of ethical
companies’ data (maybe even
you go” process makes cloud computing scalable
and flexible so that customers, for example, can use
the data of a competitor) is also issues which lawyers
stored. There must be protocols
as much or as little storage as they need.
in place to ensure that one must address and
What are the Advantages? company’s data is not commin-
cloud computing is
gled with data from another
Cost. Cloud computing greatly reduces the large
company. Moreover, there must
capital expenses associated with electronic data
management—software, hardware and services. be systems in place to prevent no exception.
data being improperly accessed or
From acquisition costs to maintenance costs to IT
removed by an unauthorized user. For purposes of
personnel costs, cloud computing services enable
litigation, location of data might be a critical factor in
the customer to shift those expenses on to the third-
determining what law applies to the dispute or how
party providers.
easy it is to access the information.
Convenience and Flexibility. The cloud computing
The Service Provider. An integral part of the security
service provider gives its customers instant access to
issue is the third-party service provider. It is imperative
his or her data through the Internet. As the custom-
that the service provider not only be reputable, it must
er’s business needs change, the cloud computing
be a reliable and dependable. The customer should
service provider can help the customer keep pace
spend time doing its due diligence before it entrusts
with those changes because the resources the
its valuable information with the service provider.
customer needs are already “in the cloud.” Timing
and magnitude of the changes become irrelevant Outsourcing and Ethical Concerns
because the cloud computing service provider has
With any emerging technology, there are a number
those resources to meet those needs on demand.
of ethical issues that lawyers must address and cloud
This can be very important in helping smaller
computing is no exception. Because of the complex
companies compete with larger companies.
technical issues that are associated with using cloud
Location. Companies that manage their own data computing, lawyers are and will be challenged to
dedicate significant physical and financial resources provide competent advice that safeguards their
making sure that their data is stored in a location that client’s most important information.
is compatible for the needs of the organization. This
Because data security is the number one concern,
includes redundancy systems for disaster-recovery.
lawyers need to approach the issue of cloud
With cloud computing, the customer does not have to
computing with great care. Rule 1.6 of the ABA’s
concern itself with those issues because the company’s
Model Rules of Professional Conduct (“MRPC”),
data is centrally stored at some remote location.
requires that a lawyer safeguard client confidences
What are the Risks? and confidential information. Comment 16 to Rule
1.6 states that “[a] lawyer must act competently to
Security/Privacy. This is the number one concern
safeguard information relating to the representa-
for most cloud computing customers. While the
tion of a client against inadvertent or unauthorized
customer legally owns its data in the cloud, it does
not have the level of “control” over its data that it Continued on the next page.

The Bencher ◆ November/December 2010 ◆ www.innsofcourt.org 17

 Cloud Computing continued from page 17.
disclosure by the lawyer or other persons who are
participating in the representation of the client
or who are subject to the lawyer’s supervision.”
Comment 17 states that “the lawyer must take
reasonable precautions to prevent the informa-
tion from coming into the hands of unintended
recipients.” Reasonableness is the key. A lawyer will
not be required to use special security measures
if the method of communication affords a reason-
able expectation of privacy. As noted in Comment
17, “special circumstances, however, may warrant
special precautions” and the factors to be considered
include “the sensitivity of the information and the
extent to which the privacy of the communication is
protected by law or by a confidentiality agreement.”
Outsourcing is Nothing New to Law Firms
The idea that law firms will give confidential client
information to third-party vendors is not new. In the
paper world, law firms routinely sent documents to
vendors for the preparation and copying of discovery
documents for production. Client confidences were
kept secure through contrac-
While the future of tual arrangements between the
law firms and the vendors. As a
cloud computing is result, there is nothing unethical
about a lawyer outsourcing
bright, there are some non-legal services provided that
the outsourcing lawyer provided
cloudy issues lurking competent representation under
MRPC Rule 1.1—meaning that
about especially lawyer possessed “the legal
knowledge, skill, thoroughness
for lawyers. and preparation reasonably
necessary for the representation.”
MRPC Rule 1.15 also requires a lawyer to preserve
client property, which includes client information,
from risk of loss due to destruction, degradation or
loss. Therein lies the challenge with cloud computing.
Under MRPC Rule 5.3(b) a lawyer having direct
supervisory authority over the non-lawyer shall
make reasonable efforts to ensure that the person’s
conduct is compatible with the professional obliga-
tions of the lawyer. If a law firm retains a cloud
computing service provider to store client confiden-
tial information, the lawyer is required to provide
appropriate instruction and supervision concerning
the ethical aspects of their employment, particularly
regarding the obligation not to disclose information
relating to representation of the client. But how does
the lawyer advise the client with respect to the risks
of data security, unauthorized access or negligence
on the part of the cloud computing service provider?
How can the lawyer advise the client as to security
risks or reasonably supervise the operations of the
cloud computing service provider when the lawyer
18 The Bencher ◆ November/December 2010 ◆ www.innsofcourt.org
(and the client) may not know where the data
resides or if it is being commingled. If the risk cannot
be eliminated, can it be minimized?
There is some guidance available for lawyers. The
North Carolina Bar Association in April 2010 issued a
Proposed Ethics Opinion on cloud computing. See,
(http://www.ncbar.gov/ethics/propeth.asp). Under
that Proposed Opinion, “a law firm may contract with
a vendor of software as a service provided the risks
that confidential client information may be disclosed
or lost are effectively minimized.”
Steps to Protect Your Information
The most critical part with respect to cloud
computing is the agreement between the customer
and the third-party service provider. Great care should
be taken in drafting such an agreement. To avoid
costly mistakes, a customer must craft an agreement
that addresses anticipated problems such as:
• Who owns the data?
• Where will the data reside and will it be backed up?
• Does the customer have the right to approve in
advance any transfer of the data to another state
or country?
• Who will have access to the data and will there be
different levels of access?
• Who will supervise the project and will there
be monitoring and auditing of the policies and
procedures?
• What procedures will be followed when the
contract terminates?
• What security measures are in place?
For reference purposes only, an example of Google’s
cloud computing contract, Google Apps Premier
Edition Online Agreement can be found at: (http://
www.google.com/apps/intl/en/terms/education_
terms.html)
Conclusion
While the future of cloud computing is bright, there
are some cloudy issues lurking about especially for
lawyers. The potential for great savings is very real
and at the same time there is potential for great
risk. Protocols and best practices still need to be
developed. Lawyers would also be well-served with
more input from state ethics opinions. u
Kevin F. Brady is a Litigation Partner and Chair of the Business
Law Group of Connolly Bove Lodge & Hutz LLP in Wilmington,
Delaware. He has been involved in the American Inns of Court
locally and nationally since 1984 and is a founding member of
three Inns in Wilmington including the Richard K. Herrmann
Technology Inn of Court. He is also a former member of the
Board of Trustees of the American Inns of Court Foundation.
Electronic Discovery and Social Networking Sites
By Francis G.X. Pileggi
S
ocial networking Web sites are nearly ubiqui-
tous and increasingly prevalent as a business
tool that has become an important aspect of
doing business for many industries and individ-
uals. With more than 500 million users on Facebook,
70 million users on LinkedIn, and 190 million
users on Twitter, now more than ever people and
businesses are interacting and connecting with each
other through social networking Web sites. Broadly
defined, social networking Web sites allow users
to create online profiles where they can choose to
display their business and personal information
to be accessed by other users in order to “make
friends” and interact with the online communi-
ty.1 For instance, users of Facebook typically post
their personal and/or business interests, contact
information, photographs, and videos to share with
1 Aaron Blank, Comment, On the Precipe of E-Discovery:
Can Litigants Obtain Employee Social Networking Web
Site Information Through Employers?, 18 COMMLAW
CONSPECTUS 487 (2010).
The Bencher ◆ November/December 2010 ◆ www.innsofcourt.org
their friends and/or prospective business contacts.
Twitter users interact by posting “tweets”, short 140
character messages.2
Many advertisements now include the icons for
Facebook and Twitter to encourage customers to
interact with the company online. Given the breadth
of these online communities and the wealth of
information to which they provide access, it is no
surprise that lawyers are using information gathered
on these sites in business litigation and other types
of legal disputes.
Recent Court Decisions
Photos, postings, e-mails, and other information
from social networking Web sites are increasingly
becoming the subject of formal discovery requests.
In Barnes v. CUS Nashville, LLC,3 in order to expedite
2 See id.
3 No. 3:09-cv-00764, 2010 WL 2265668, *1 (M.D. Tenn. Continued on
June 3, 2010). the next page.
19
 Electronic Discovery continued from page 19.
a Facebook subpoena, the magistrate
judge offered to create a Facebook
account in order to “friend” plaintiffs and
gain access to the photographs, captions,
and comments subject to the subpoena.
In Treat v. Tom Kelley Buick Pontiac GMC,
Inc.,4 plaintiff sued her employer for
wrongful termination and sexual harass-
ment. The sexual harassment allegation
was based upon an allegedly inappro-
priate sexual story told to plaintiff by
her superior. To corroborate her version
of the facts, plaintiff produced during
discovery a printout of a “less graphic”
version of the story posted by her
superior on his MySpace page.5
Generally, courts allow discovery of
personal information posted on a social
networking Web site if it is relevant to
the litigation and the discovery request is narrowly
tailored.6 The Federal Rules of Civil Procedure
allow for a broad scope of discovery such that “any
nonprivileged matter that is relevant to any party’s
claim or defense” is discoverable.7 As with any case,
relevance is fact specific. In many cases information
on social networking Web sites may be relevant,8
in others evidence of online connections may not
be relevant. For instance, in Quigley Corp. v. Karkus9
the court held that Facebook “friends” status of the
co-defendants held no significance in the litigation,
which involved allegations that shareholders of a
corporation violated the Securities and Exchange
Act by refusing to disclose their relationship.10
Although communications and posted data on
social networking Web sites may be relevant,
parties may not compel requests for overly broad
discovery of such information. In Mackelprang v.
Fidelity National Title Agency of Nevada, Inc.,11 plaintiff
alleged she had been sexually harassed by her
4 No. 1:08cv173, 2010 WL 1779911 (N.D. Ind. Apr. 30, 2010).
5 See id. at *5.
6 See Beth C. Boggs and Misty L. Edwards, Does What
Happens on Facebook Stay on Facebook?: Discovery,
Admissibility, Ethics, and Social Media, ILL. BAR JOURNAL
(Vol. 98), at 366 (July 1, 2010).
7 See Fed. R. Civ. Pro. 26(b)(1).
8 See e.g., Beye v. Horizon Blue Cross Blue Shield of New
Jersey, 568 F.Supp.2d 556 (D.N.J. 2008); Ledbetter v.
Wal-Mart Stores, Inc., 2009 WL 1067018 (D. Colo. April
21, 2009).
9 No. 09-1725, 2009 WL 1383280, at *3-5 (E.D. Pa. May
15, 2009).
10 See id. at *5, n.3.
11 No. 2:06-cv-00788-JCM-GWF, 2007 WL 119149, *1 (D.
Nev. Jan. 9, 2007).
20 The Bencher ◆ November/December 2010 ◆ www.innsofcourt.org
employer. Hoping to reveal plaintiff was having an
extra-marital affair, defendant sought all records,
including private e-mail messages, on plaintiff’s
MySpace page. Denying defendant’s motion to
compel, the court noted the broad discovery
request (i.e., all communications) and refused to
allow defendant to engage in a fishing-expedition.
Defendant was barred from obtaining “private
e-mail messages between Plaintiff and third persons
regarding allegedly sexually explicit or promiscu-
ous e-mails not related to Plaintiff’s employment
with Fidelity.”12 The court, however, did not prohibit
defendant from obtaining relevant communications
by serving narrowly tailored discovery requests.
Other courts are more reluctant to allow discovery of
private e-mail messages on social networking Web
sites, than they are profile information. In Crispin v.
Christian Audigier, Inc.,13 the Central District of California
granted in part plaintiff’s motion for reconsideration
of third-party subpoenas of social networking Web
sites. Defendants served subpoenas duces tecum on
four social networking Web sites, including Facebook
and MySpace, seeking plaintiff’s subscriber informa-
tion and all communications relating to the lawsuit.14
Finding social networking Web sites to be electronic
communication services (“ECS”) providers and private
messaging on such Web site to be ECS under the
Stored Communications Act,15 the court quashed the
Facebook and MySpace subpoenas to the extent they
sought private messaging.16
Of course, as U.S. v. Drummond17 points out,
admissibility of such information is subject to
the Rules of Evidence. In Drummond, the court
considered defendant’s motion to exclude from
evidence photographs from his MySpace page.
The photographs at issue depicted the defendant
holding large quantities of cash and/or pointing a
gun at the camera.18 Defendant, who was facing drug
trafficking charges, argued that these photographs
were prejudicial. The court found the photographs
relevant and prejudicial, but required more informa-
tion in order to determine if the probative value of
the evidence outweighed the danger of prejudice,
and reserved ruling on admissibility.19
12 See id. at *8.
13 No. CV 09-09509 MMM (JEMx), 2010 WL 2293238,
*1-2 (C.D. Cal. May 26, 2010) (Motion granted in part,
reversed in part, vacated in part, and remanded).
14 See id. at *1.
15 18 U.S.C. § 2701(a)(1).
16 See id. at *10, *16.
17 No. 1:09-cr-00159, 2010 WL 1329059 (M.D. Pa. Mar. 29,
2010).
18 See id. at *1.
19 See id. at *2 (citing Fed. R. Evid. 403).
Rules of Civil Procedure
In addition to the rules governing relevancy and
prejudice, information on social networking Web
sites are subject to the rules governing electronically
stored information. Federal Rule of Civil Procedure
34 provides that a party may request any electroni-
cally stored information that is within the “posses-
sion, custody, or control” of the responding party.20
As discovery of information on social network-
ing Web sites becomes more prevalent, litigators
must become savvy about the techniques used in
searching and preserving personal information on
these Web sites. Print-outs of screen shots are an
archaic means of preserving data, especially when
people are constantly updating their Facebook
pages, both adding and deleting information.
Third-party providers sell lawyers the tools to
effectively archive, manage, and produce informa-
tion from these ever evolving social networking Web
sites.21 Theses companies employ new technologies
in order to monitor and recover information posted
on the sites.22 For instance, video cameras are used
to monitor personal Web pages; “capturing software”
records a user’s Internet activities; web-based tools
provide access to information posted on Web sites in
the past, but since deleted; and advances in search
engines will provide greater searchability of personal
information posted on social networking Web sites.23
More and more litigators are recognizing that
Facebook, Twitter, and similar online communities
are significant sources of information. Lawyers and
investigators are using social networking Web sites
to investigate parties, witnesses, potential jurors,
judges and opposing counsel. Lawyers are conduct-
ing searches via Google and Bing as well directly on
the social networking Web sites themselves. And, as
lawyers are going straight to the source, they are in
turn raising legal ethics issues.
Ethical Considerations of Social Network Discovery
Increasingly, because businesses are marketing
to other business and consumers through social
networking Web sites, company policies governing
20 Fed. R. Civ. Pro. 34(a)(1)(A).
21 Kroll Ontrack Web site, available at http://www.
krollontrack.com/about-us/.
22 From the Investigator’s Notebook: Social Media Data
Collection Best Practices (June 2010), available at http://
www.krollontrack.com/ii-article-0610/?news=US_
InvIns_Jun_10.
23 See id.
Francis G.X. Pileggi is the founding partner of the Wilmington, Delaware, office of Fox Rothschild LLP. He writes a blog at
www.delawarelitigation.com that summarizes all the key decisions on corporate and commercial law from Delaware’s Court of
Chancery and Supreme Court. He also writes the ethics column for every other issue of The Bencher.
The Bencher ◆ November/December 2010 ◆ www.innsofcourt.org
electronic communications must evolve
along with the technology, keeping an eye
toward litigation and preservation issues.24
Target, Coca-Cola, Vanguard, Disney, Calvin
Klein and many other major companies
all have thousands of fans on Facebook.
And, consumers can follow more and more
companies on Twitter, such as Carnival
Cruise Lines, Apple, Amazon.com, M&Ms,
and The New York Times. Just as companies
and business litigators face discovery
preservation issues with company Web
sites, e-mail correspondence and electronic
documents, so too must companies
be prepared to preserve and produce
information on social networking Web
sites they control, in order to prepare for
potential litigation.
In addition, companies should be wary of
what their employees are posting on the Internet,
especially when discussing the company or its compet-
itors, as the employer may be held liable and/or face
significant backlash. In 2007, it was revealed that using
a pseudonym, John Mackey, CEO of Whole Foods, had
been posting disparaging remarks about Wild Oats
Markets, Inc., a natural foods store, and competitor of
Whole Foods.25 These postings raised SEC-related issues
because Whole Foods was a publicly-held company.
To paraphrase Kevin O’Keefe, an expert on the use
of the Internet by lawyers: “social media is here to
stay.”26 Electronic data discovery (EDD) is a necessary
part of a complete litigation strategy due to the
large amount of electronically stored information
(ESI) that is never printed in hard copy. So much ESI
is now created on social media Web sites—which
may not be available elsewhere, that a complete
EDD plan must consider potentially relevant and
useful ESI on social media Web sites that may help
(or hurt) one’s case. u
24 See H. Christopher Boehning and Daniel J. Toal, Social
Networking Data Presents New Challenges, 241 N.Y.L.J. 5
(June 30, 2009).
25 See David Kesmodel and John R. Wilke, Whole Foods
CEO Hid on Message Board, Wall Street Journal (July
12, 2007), available at http://www.smartmoney.com/
breaking-news/smw/?story=20070712105705.
26 See Kevin O’Keefe, Real Lawyers Have Blogs (August 31,
2010), available at: http://kevin.lexblog.com/2010/08/
articles/social-media-1/social-networking-use-
exploding-in-age-groups-targeted-by-law-firms-for-
business-development/.
21
 Judicial Ethics,
The Internet,
and Social Media
By James J. Alfini
T
he debate over whether and how far we can
or should inquire into and regulate a judge’s
private life and public life takes on a whole
new dimension with the advent of computer
technology and the Internet. Social networking sites
in particular have tended to blur the boundaries
between judges’ private and public lives and have
raised challenging new ethics issues.
One of the most notorious inquiries into extrajudicial
conduct and the Internet involved Chief Judge Alex
Kozinski, of the U.S. Court of Appeals for the Ninth
Circuit. In June of 2008, the media began a feeding
frenzy claiming that Judge Kozinski had posted
sexually explicit material on his Web site.1 At the time,
the judge was sitting by designation as a trial judge
to try an obscenity case. He suspended the trial to
consider whether there was a need for his recusal,
ultimately declaring a mistrial and recusing himself.2
He then asked the Judicial Council of the Ninth Circuit
to initiate proceedings with regard to the allegations
against him. The Ninth Circuit Council asked Chief
Justice Roberts to transfer the matter to another circuit,
and it was subsequently transferred to the Third Circuit.
James J. Alfini is
Dean Emeritus and The primary assertion in the media was that Judge
Professor, South Kozinski maintained a publicly accessible Web site
Texas College of
Law. This article
was adapted 1 See “9th Circuit’s Chief Judge Posted Sexually Explicit
from a portion of Matter on His Website,” Los Angeles Times Web site,
an article (with June 11, 2008.
Seana Willing) that 2 Judge Kozinski’s conduct with regard to the obscenity
will appear in a case, United States v. Issacs, is discussed fully in In re Com-
symposium issue plaint of Judicial Misconduct (Kozinski), Memorandum
of the South Texas
Opinion, Judicial Council of the Third Circuit, J.C. No.
Law Review on the
future of the courts. 03-08-90050 (June 5, 2009) at 36–38. The Third Circuit
He is a Master Council concluded: “To the extent the identified Com-
plaint involves the Judge’s conduct with respect to the
in the Garland
R. Walker AIC in United States v. Issacs case, that portion of the Complaint
Houston, TX. will be dismissed under Rule 20(b)(1)(A)(i).” Id. at 38.
22 The Bencher ◆ November/December 2010 ◆ www.innsofcourt.org
that contained sexual material. The judge cooper-
ated fully in the investigation, and he testified under
oath at a hearing before a special committee in
Philadelphia. The committee found that while the
judge did not maintain a public Web site as suggested
by the media, he did maintain a large aggregation of
e-mails he had received over the years on a “subdirec-
tory” on his home computer, which had been
connected to the Internet using Web server software,
The committee further found that these files, or
e-mails, became accessible to the public “[t]hrough a
combination of improper security and carelessness
on the part of the judge.” At least one Internet search
engine catalogued the contents of the subdirectory,
allowing Internet searchers to locate the material.
Judge Kozinski became aware of this, but he
neglected to fully remove the offensive material or
disconnect the computer from the Internet.
The Third Circuit Council found, “that the Judge’s
possession of sexually explicit material combined
with his carelessness in failing to safeguard his
sphere of privacy was judicially imprudent. Moreover,
once the judge became aware in 2007 that offensive
material could be accessed by members of the
public, his inattention to the need for prompt correc-
tive action amounted to a disregard of a serious risk
of public embarrassment.” The Third Circuit Council
admonished the judge “that his conduct exhibiting
poor judgment with respect to this material created
a public controversy that can reasonably be seen as
having resulted in embarrassment to the institution
of the federal judiciary.” Judicial misconduct issues
relating to the Internet, particularly in connection to
social networking, have arisen within the state judicia-
ries as well. The explosion of interest in social network-
ing has precipitated, judicial ethics advisory opinions in
New York and Florida.
The New York opinion3 was initiated by a New York
judge who had received an e-mail inviting her to join
a social network. The judge asked whether it would
be appropriate to join and participate. In concluding
that a judge may join and make use of an Internet-
based social network, the opinion first discusses the
legitimate reasons for social networking, identifying
reconnecting with old classmates and friends, staying
in touch with distant family members and colleagues,
and monitoring the use of the network by the judge’s
minor children. The committee then looked at earlier
opinions it had issued such as an opinion that said it
was proper for a judge to provide links to newspaper
articles on the judge’s Web site as long as they were
dignified, truthful, and not misleading.4 The committee
warned that a judge should consider whether any
of the online connections rise to a level of a close
personal relationship requiring disclosure or recusal.
The committee also cautioned judges to employ
[an] appropriate level of prudence, discretion, and
decorum in using this technology, and to stay abreast
of new features to the extent that they may present
additional ethics issues requiring further guidance.5
In reaching its conclusion that a judge may partici-
pate in a social network, the New York committee
stressed that a judge may do so if “the judge
otherwise complies with the Rules Governing
Judicial Conduct.” In this regard, the committee
cited the requirements from the New York version
of the Code of Judicial Conduct that a judge avoid
impropriety and the appearance of impropriety in
all the judge’s activities, act at all times in a manner
that promotes public confidence in the integrity and
impartiality of the judiciary, and conduct all of the
judge’s extrajudicial activities so that they do not
detract from the dignity of judicial office.
The Florida Ethics Opinion6 posed a number of
questions. First, it addressed the question: “May a
judge post material on the judge’s social network-
ing page if the publication of these materials
does not otherwise violate the Code of Judicial
Conduct?” Similar to the New York Opinion, the
committee answered, “Yes.” The committee then
addressed the question: “May a judge add lawyers
as “friends” and permit the lawyers to add the judge
3 N. Y. Advisory Comm. on Judicial Ethics, Op. 08-176
(Jan. 29, 2009).
4 N. Y. Advisory Comm. on Judicial Ethics, Op. 07-135. But
see, N. Y. Advisory Comm. on Judicial Ethics, Op. 01-14
(a court should not provide a link on its web page to an
advocacy group for Megan’s Law which listed the names
and counties of residence for registered sex offenders).
5 N. Y. Advisory Comm. on Judicial Ethics, Op. 08-176
(Jan. 29, 2009) at 2.
6 ���������������������������������������������������
Florida Supreme Court Judicial Ethics Advisory Com-
mittee, Op. 2009-20 (Nov. 17, 2009).
The Bencher ◆ November/December 2010 ◆ www.innsofcourt.org
as their “friend”?” Somewhat surprisingly, to this
question the committee answered, “No.” The Florida
committee concluded that this practice would
violate the Canon 2B prohibition in the Florida Code
of Judicial Conduct against lending “the prestige
of judicial office to advance the private interests of
the judge or others.” The committee explained that
listing lawyers who may appear before the judge
as “friends” on a networking page would convey to
others the impression that these lawyer “friends” are
in a special position to influence the judge.
The Florida committee’s opinion that a judge’s
“friending” lawyers on a social networking site is
improper has been criticized in the press7 and by
a minority of the committee. In its opinion, the
committee explained that a minority believed that
social networking sites have become so ubiquitous
that the term “friend” on these pages merely identi-
fies a person as a contact or acquaintance and not a
“friend” in the traditional sense, and would therefore
not violate Canon 2B.
A judicial ethics advisory committee in South
Carolina also addressed a question concerning
the propriety of a judge’s participation in a social
networking site. The inquiry from the South Carolina
magistrate judge expressed concern over having
local law enforcement officers and employees of
the magistrate as “friends” of the magistrate on
Facebook. The committee concluded that the judge
may be a Facebook member and be friends with
law enforcement officers and employees of the
magistrate “as long as they do not discuss anything
related to the judge’s position as magistrate.”8 In
reaching this conclusion, the committee quoted
from the commentary to Canon 4 of the South
Carolina Code of Judicial Conduct: “…complete
separation of a judge from extrajudicial activities
is neither possible nor wise; a judge should not
become isolated from the community in which
the judge lives.” The committee went on to explain:
“Allowing a magistrate to be a member of a social
networking site allows the community to see how
the judge communicates and gives the community a
better understanding of the judge.”
As one might expect, the Internet and social
networking pages have been seen as tools to
Continued on the next page.
7 See, e.g. “For Judges on Facebook, Friendship Has Limits”,
The New York Times Web site, December 10, 2009, http://
www.nytimes.com/2009/12/11/us/11judges.html
8 South Carolina Advisory Committee on Standards of
Judicial Conduct, Op. 17-2009 (October, 2009).
23
 Judicial Ethics continued from page 23.
assist political communication9 and to enhance
the election campaigns of judges in elective states.
Since the Supreme Court of the United States
decision in Republican Party of Minnesota v. White,10
campaign practices have been the subject of both
increased scrutiny and experimentation. The Florida
ethics opinion discussed earlier also addressed the
question: “May a campaign committee post material
on the judge’s site if the material does not violate
the Code of Judicial Conduct?” The committee
concluded that a campaign committee may post
such material on the judge’s site.
The ethics advisory committee also addressed the
question: “May a campaign committee establish
a page that has an option for persons to list
themselves as “fans” or supporters of the judge’s
candidacy so long as access is not controlled by the
judge or the committee?” Again, the committee
concluded that it may. The committee stated that
it was not inconsistent to prohibit judges from
having “friends”, while permitting “fans”, reasoning
that because neither the judge nor the campaign
committee can accept or reject the listing of the
fan on the social network, the listing of the lawyer’s
name does not convey the impression that the
lawyer is in a special position to influence the judge.
Judicial candidates in two states have been disciplined
for seeking campaign contributions through the
Internet. In the State of Washington, the judge’s
campaign committee solicited donations by e-mail
over the judge’s signature.11 The e-mails were written
in the first person and concluded with the judge’s first
name in the typed signature line. And, in the state
of Kansas, a judicial candidate sent a cell phone text
seeking donations from attorneys.12 The cell phone
text stated: “If you are truly my friend then you would
9 Judges have been sanctioned for the improper use
of these technological advances. A Texas judge, for
example, was admonished for forwarding an e-mail
from a county computer about George Bush’s 2000
presidential campaign. Public Admonition of Katz (Texas
Commission on Judicial Conduct December 19, 2000).
10 536 U.S. 765, 122 S. Ct. 2528, 153 L. Ed. 2d 694 (2002)
(declaring a campaign speech restriction of the Min-
nesota Code of Judicial Conduct unconstitutional on
First Amendment grounds). For a discussion of this
case and its broader relevance to the field of judicial
ethics see James J. Alfini, Steven Lubet, Jeffrey Shaman,
and Charles Gardner Geyh, Judicial Conduct and Ethics
(2007) 11-17–11-27.
11 In re Krouse, Stipulation, Agreement, and Order of Rep-
rimand (Washington Commission on Judicial Conduct
May 5, 2005).
12 Inquiry Concerning Davis, Order (Kansas Commission
on Judicial Qualifications July 18, 2008).
24 The Bencher ◆ November/December 2010 ◆ www.innsofcourt.org
cut a check to the campaign! If you do not then its time
I checked you. Either you are with me or against me!”
Judges have also been sanctioned for misusing social
networking sites in ways that compromise the integrity
of their judicial positions. For example, a temporary
judge in North Las Vegas was actually removed
from office for a post on his MySpace page that was
reportedly hostile to prosecutors and used graphic
language.13 The temporary judge explained that in
retrospect he would not have opted to post the contro-
versial comment, but he did so to “provoke discussion.”
A trial judge in North Carolina was reprimanded for
misusing the Internet in connection with a pending
case.14 Following a discussion of Facebook in the
judge’s chambers during a child custody and support
case, Judge B. Carlton Terry, Jr. and Charles A. Schieck,
attorney for the defendant in the proceeding,
“friended” each other. Schieck then posted messages
discussing various aspects of the case, and Judge
Terry responded to these posts. The judge then used
the Internet to gather information related to the
case, including “Googling” the photography business
run by the plaintiff and finding poems written by
the plaintiff. At the end of the proceeding, the judge
disclosed these activities. Jessie Conley, attorney for
the plaintiff, requested that the judge vacate his order
and disqualify himself. Judge Terry subsequently
disqualified himself, vacated his child custody and
support order, and ordered a new trial.
In issuing a public reprimand against Judge Terry,
the North Carolina Judicial Standards Commission
concluded that the judge had violated numerous
provisions of the North Carolina Code of Judicial
Conduct. They found that the judge failed to
“observe appropriate standards of conduct to ensure
that the integrity and independence of the judiciary
shall be preserved (Canon 1),” failed “to respect
and comply with the law (Canon 2A),” and failed “to
act at all times in a manner that promotes public
confidence in the integrity and impartiality of the
judiciary (Canon 2A).” The Commission also found
that the judge violated Canon 3A(4) by “engaging in
ex parte communication with counsel and conduct-
ing independent ex parte online research about a
party presently before the court.”
As we have seen, these developments raise
numerous judicial ethics issues. The variety and
complexity of these issues will require judicial
disciplinary authorities to think outside the box for
many years to come. Cyberspace has indeed opened
a brave new world in the field of judicial ethics. u
13 American Bar Association Journal, August 14, 2007.
14 In re Terry, Inquiry No. 08-234 (North Carolina Judicial
Standards Commission April 1, 2009).
P R O F I L E I N P R O F E S S I O N ALISM
The Honorable Thomas F. Hogan
2010 District of Columbia Circuit Professionalism Award Recipient
By Jennifer J. Salopek
T homas F. Hogan, a judge who served for 25
years on the U.S. District Court for the District
of Columbia, has received the 2010 American
Inns of Court Professionalism Award for the District
of Columbia Circuit. The award was presented by
the Honorable John G. Roberts, Chief Justice of the
United States, at the circuit’s judicial conference in
June. Judge Hogan received a standing ovation.
The award honors a senior practicing judge or lawyer
whose life and practice display sterling character and
unquestioned integrity, coupled with ongoing dedica-
tion to the highest standards of the legal profession.
“It was a very meaningful moment for me,” Mr. Hogan
said. However, he says, to serve as a federal district
judge was “the highest honor I could have had.”
Judge Hogan was appointed to the U.S. District
Court in 1982 and served as Chief Judge from 2001
to 2008. During that time, the court had a number of
high-profile cases, including the Microsoft antitrust
case, the McCain-Feingold campaign finance litiga-
tion, U.S.A. v. Phillip Morris, and U.S.A. v. Libby.
During his tenure on the bench, Judge Hogan
facilitated the move of the United States Foreign
Intelligence Service Court from the Justice
Department to the D.C. courthouse and managed
the court’s budget. He led a key move to free up
District judges for complex matters by persuad-
ing the federal prosecutor to redirect gun cases to
D.C. Superior Court. He also oversaw the design
and construction of an annex to the courthouse,
which was named for William B. Bryant, a formative
influence in Judge Hogan’s life. Mr. Hogan has said
that the building “has met our expectations for a
modern, functional courthouse, while duly honoring
the outstanding judge for whom it is named.”
Chief Justice Roberts appointed Mr. Hogan to serve
as a judge on the United States Foreign Intelligence
Service Court in 2008. He was designated by his
colleagues on the court to coordinate and manage the
habeas proceedings of Guantanamo Bay detainees.
He also served as a member of the United States
Judicial Conference, the governing body for the
administration of all United States courts. In 2005,
the late Chief Justice William H. Rehnquist appointed
Mr. Hogan to preside over the Executive Committee
of the Judicial Conference, which he served as chair
until 2008. Upon that occasion, Chief Justice Roberts
issued a commendation that read in part:
The Bencher ◆ November/December 2010 ◆ www.innsofcourt.org
Judge Hogan has led the Executive Committee
with insight and grace. With his unassuming and
inclusive style, he ensured that the views of each
member of the Committee were heard and that
decisions were based on consensus… Judge
Hogan is a wise and thoughtful man whom we
are proud to have as our colleague and friend.
Judge Hogan served on the Committee on the
Administration of the Magistrate Judges System
from 1987 to 1991, and as Chair of the Committee
on Intercircuit Assignments from 1990 to 1994.
He has served on the Board of the Federal Judicial
Center and the Executive Committee of the U.S.
District Court for the District of Columbia.
Mr. Hogan earned his bachelor of arts degree
from Georgetown University. He attended George
Washington University’s masters program in
American and English literature for two years, and
graduated the Georgetown University Law Center in
1966, where he was the St. Thomas More Fellow.
The appeal of his chosen path was a bit surprising:
“There were no lawyers in my family and I didn’t
know any lawyers,” he said. “But I went to law school
and discovered that law was meant for me.”
Another influential mentor was Judge William
B. Jones, with whom Mr. Hogan completed his
first clerkship; the two men became friends and
neighbors. “Judge Jones exemplified a tremendous
dedication to the law,” Mr. Hogan said, “He taught
me to read carefully and how to analyze cases, and
demonstrated an excellent work ethic. He was a
remarkable individual for a young lawyer to watch.”
Judge Hogan served as counsel to the National
Commission for the Reform of Federal Criminal Laws
from 1967 to 1968, and was engaged in private
practice from 1968 to 1982 in Rockville and Chevy
Chase, Maryland, and Washington, D.C. He was an
assistant professor at Potomac School of Law from
1977 to 1979, and an adjunct professor at Georgetown
University Law Center from 1986 to 1992.
“I always talk to my students about the integrity
of the law and how we must uphold it,” he said.
“Although there are roles for advocacy in law, in
most cases we can’t inject our personal beliefs into
our work; we have to call things as we see them.” u
Jennifer J. Salopek is a freelance writer based in McLean, Virginia.
25
 P R O F I L E I N P R O F ESSIONALISM
The Honorable Stephen Nathaniel Limbaugh, Sr.
2010 Eighth Circuit Professionalism Award Recipient
By Jennifer J. Salopek
S tephen N. Limbaugh, a judge who served
for 25 years on the U.S. District Court for the
Eastern District of Missouri, has received the
American Inns of Court 2010 Professionalism Award
for the Eighth Circuit. The award was presented in
August at the Eighth Circuit Judicial Conference in
Minneapolis, Minnesota.
Judge Limbaugh is senior counsel in the firm
Armstrong Teasdale LLP in St. Louis, Missouri. In
addition to a litigation practice, he frequently serves
as a mediator of civil cases. He was appointed to the
bench by President Ronald Reagan and served from
1983 to 2008, stepping down only so that his son
could fill a vacancy on the court.
During his tenure on the bench, Judge Limbaugh
presided over, ruled on, or was involved with virtually
every aspect of federal law and issues associated
with complex business litigation, including antitrust,
class action, intellectual property, personal injury,
product liability, securities matters, multi-district
litigation, and school cases.
Judge Limbaugh was nominated for the award by the
Honorable Catherine D. Perry, Chief District Judge,
U.S. Distric Court for the Eastern District of Missouri.
She wrote, “By his example, [Steve] has demonstrated
the best that our profession has to offer. As a judge,
he treated all litigants with the utmost dignity, and
he treated all lawyers with respect, even when he was
ruling against them. Lawyers always knew that he
would listen carefully, study the facts and the law, and
rule promptly and carefully.”
As a teen, Judge Limbaugh earned Eagle Scout
status and enlisted in the Navy at 17 where he served
for 15 months. He completed his undergraduate and
legal degrees in only five years earning a bachelor’s
degree from Southeast Missouri State University and
his J.D. from the University of Missouri at Columbia.
He then joined his father’s law firm in Cape
Girardeau, where he gained litigation experience in
personal injury, product liability, medical malprac-
tice, labor disputes, real estate, and tax cases. He
practiced in numerous Missouri Circuit Courts and all
Missouri appellate courts, as well as the Circuit Court
of Appeals for the Eighth Circuit, the Tax Court, and
the Illinois trial courts.
“My father was an exceptional role model and
was a practicing attorney for 80 years,” said Judge
Limbaugh. “He still went to the office at age 102. He
26 The Bencher ◆ November/December 2010 ◆ www.innsofcourt.org
was my inspiration to become a lawyer and it was my
privilege to practice with him for 30 years.”
Mr. Limbaugh worked in private practice at
Limbaugh, Limbaugh, Russell & Syler from 1951 to
1983. During that time, he served as prosecuting
attorney for Cape Girardeau County, and for four
years he served as attorney for the City of Cape
Girardeau. He estimates that 30 to 35 percent of his
professional time was spent in the litigation area;
the remaining time was devoted to general business
practice, including banking, real estate, municipal,
contract, and domestic relations law.
Judge Limbaugh has been a member of the
Missouri Bar since 1951 and served as its president
in 1982–1983. He also was a member of the House
of Delegates of the American Bar Association from
1987–1991, and has been an active member of the
American Law Institute and the American Judicature
Society for many years.
He also found time to serve his community through
volunteer and pro bono work. He served in various
positions on the boards of the Cape Girardeau
Civic Center, the Cape Girardeau Public Library
Board, the Community Concert Association of Cape
Girardeau, the Southeast Missouri Area Council of
the Boy Scouts of America, and the Cape Girardeau
Chamber of Commerce. “In addition to the many
activities listed, he has been a tireless supporter
of Legal Services of Eastern Missouri,” Judge Perry
wrote. “In practice, he frequently provided free legal
services to those who could not afford a lawyer, and
his many actions have promoted the goal of making
competent counsel available to all citizens, regard-
less of their means.”
Since joining Armstrong Teasdale as senior counsel
in 2008, Judge Limbaugh has continued to practice
law with the firm’s litigation department. The practice
includes arbitration, mediation, strategic counseling
to clients in trial strategy, case assessment, mentoring
firm associates, and assessing preparation of negotia-
tion strategies and trial techniques.
“My greatest career achievement was the privilege of
being a U.S. District Judge for 25 years,” Mr. Limbaugh
said. “I am very fortunate to have practiced law,
become a member of the judiciary, and then
returned to law practice.” u
Jennifer J. Salopek is a freelance writer based in McLean, Virginia.
 PROGRAM SPOTLIGHT

The Reasonable and Ethical Conduct of Attorneys Using Social Media

Program Number: P11829
Presented By: The Sagamore AIC, Indianapolis, IN Submit your local
Available Materials: Script, Articles, Law, Questions, Handouts, DVD Inn Programs!
Summary: Submitting your programs to the
This program portrays the ethical ramifications for judges and Program Library helps us deliver
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please visit our Web site at www.innsofcourt.org or e-mail Andrew Young at ayoung@innsofcourt.org.

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