April Besl
Dinsmore & Shohl LLP
February 3, 2011
Copyright 2011 April L. Besl
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Nothing in this presentation should be
construed or is intended to be legal advice. If
you have specific questions, please consult
with the counsel of your choice. All images
and trademarks used in the presentation are
property of their respective owners.
Copyright 2011 April L. Besl
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The World of Social Media
Discoverability of Social Media
Admissibility of Social Media
Practice Tips When Using Social Media
Copyright 2011 April L. Besl
Copyright 2011 April L. Besl
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A New Form of Worldwide Communication
◦ Always Accessible Via Mobile Phones
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Communication Often Without a “Filter”
◦ People Talk About Their Lives, Their Jobs, Their
Families, Their Issues
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A New Tool for Law Enforcement
◦ Cincinnati Police and UC Marketing Using Social
Media to Combat Gangs
Copyright 2011 April L. Besl
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Facebook Added Over 200 Million Users in Less than a Year
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1 in 6 Higher Education Students Are Enrolled in Online Curriculum
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◦ It took 38 Years for Radio and 13 Years for TV to reach 50 Million Users!
Ashton Kutcher and Britney Spears Have More Twitter Followers Than
The Entire Populations of Sweden, Israel, Switzerland, Ireland, Norway, or
Panama
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Studies Show Wikipedia Is As Accurate As Encyclopedia Britannica
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There Are Over 200,000,000 Blogs
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80% of Twitter Usage is on Mobile Devices
◦ 78% of these articles are non-English
◦ People Can Update Anytime and Anywhere – Imagine What That Means with
Juries and the Press!
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Stats from Socialnomics Blog
◦ Erik Qualman: Global Vice President for EF Education
◦ Socialnomics – How Social Media Transforms the Way We Live and Do Business
 Top 10 Book in Web Marketing, e-Commerce, and Business & Culture –
Culture on Amazon.com
Copyright 2011 April L. Besl
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Growing Area of the Law
◦ Cases Are Coming Out Everyday With New Rules
and New Interpretations of Rules
◦ Few Courts Have Actually Addressed These Issues
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New Technology Keeps Changing the Rules
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New Role as Educator
◦ Many Older Practitioners, Judges, and Other
Professionals Need to Be “Taught” About the
Technology
Copyright 2011 April L. Besl
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New Worries and Considerations
◦ From Defendants to Prosecutors to Judges to Jurors
◦ Increased Presence of the Public
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Example: Ryan Widmer Case
◦ Bloggers, Twitter Feeds Feeding Every Detail to the
Public
◦ During Voir Dire Jurors Were Asked if They Could
Refrain from Social Media for the Duration of Trial
Copyright 2011 April L. Besl
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Oregon Forcible Rape Case
◦ Teenager Told Police She Would Never Willingly
Have Had Sex
◦ Defense Lawyer Laura Fine Used Provocative Photos
and Comments on Her MySpace Page About Parties,
Drinking, and “Getting Some” to Discredit Her
◦ Grand Jury Dismissed the Charge
Copyright 2011 April L. Besl
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Florida Federal Drug Trial, U.S. v. Frank
Hernandez, Crim. No. 07-60027 (S.D. Fla)
◦ Juror Admitted to Doing Research on the Case on
the Internet
◦ When Questioned by the Judge Nine Other Jurors
Admitted to Doing the Same Thing!
 10 of 12 Jurors Were Violating Express Instructions
◦ Mistrial Declared After Eight Weeks of Work by
Prosecutors and Defense Lawyers
Copyright 2011 April L. Besl
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Michigan Juror Removed from Criminal Trial
in September 2010
◦ Punished for Contempt and Ordered to Pay $250
Fine and Write Essay About Constitutional Right to
Fair Trial
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Juror Posted on Facebook During Trial:
◦ “actually excited for jury duty tomorrow. It’s gonna
be fun to tell the defendant they’re GUILTY.”
Copyright 2011 April L. Besl
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Federal Rules of Civil Procedure State That:
◦ Parties may obtain discovery on any non-privileged
matter that is relevant to any claim or defense.
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Including!
◦ Requesting that another party “produce and permit
the [requesting] party … to inspect, copy, test, any
… designated documents or electronically stored
information.”
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Rules 26(b); 34(a)
Copyright 2011 April L. Besl
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Relevance is an “Extremely Broad” Concept in
Discovery – But It Does Have Its Limits!
Quigley Corp. v Karkus, 2009 WL 1383280
◦ Court held that Facebook “Friends” Status of CoDefendants Not Relevant to Claims of SEC Violation
Copyright 2011 April L. Besl
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What Are The Main Social Media Sites Where
Information Will Be Found?
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Facebook
Twitter
Blogs
LinkedIn
MySpace
YouTube
The List for Each Defendant Though Will Be
Different!
Copyright 2011 April L. Besl
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One of the World’s Largest Networking Sites
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Functions Similar to a “Yearbook”
◦ People Can Post Comments to A Page Featuring Photos
and Personal Information Similar to Signing a Yearbook
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Over Years Has Grown Outside Previous Mold
◦ Chat Feature
◦ Interactive Games Played Exclusively on Facebook
◦ Still Keeps “Yearbook” Theme in Personal Information
and Postings
Copyright 2011 April L. Besl
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Wall Posts
◦ Where Individuals and Friends Can Post “Comments” or
“Status Updates”
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Profile Information About the Person
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Education
Work
Interests
Hobbies
Photos
◦ Photos Tagged by Someone Else
◦ Photos Uploaded by the Person
Copyright 2011 April L. Besl
Copyright 2011 April L. Besl
Copyright 2011 April L. Besl
Copyright 2011 April L. Besl
Copyright 2011 April L. Besl
Copyright 2011 April L. Besl
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Limited to 140 Characters
◦ Can Be Posted Both from Computers and Mobile
Devices
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Postings Are Date and Time Stamped
May Have Picture / Profile Information
Available on the Twitter User’s Page
Copyright 2011 April L. Besl
Copyright 2011 April L. Besl
Copyright 2011 April L. Besl
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Personalized Diaries Online
◦ Same Secrets, Publicly Shared
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Typically Longer Posts Than On Facebook,
Twitter, and Other Sites
Posts Can Still Be Made Via a Mobile Phone
and Text Message
Copyright 2011 April L. Besl
Copyright 2011 April L. Besl
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Heavily Used by Younger Generations
◦ Also Popular With Artists to Share Music
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Similar to Facebook But More of a “Locker”
Than a Page in a Yearbook
◦ Posting Quotes & Photos
◦ “Gadgets” Like Countdowns, Quizzes, Etc.
Copyright 2011 April L. Besl
Copyright 2011 April L. Besl
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Social Media Site for Professionals
◦ Online Resumes
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Also Offers Job Searches, Job Postings, and
Groups
◦ Groups Offer Sharing of Information and Articles
Copyright 2011 April L. Besl
Copyright 2011 April L. Besl
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Users Can Upload Videos for Comment and
Viewing by Third Parties
◦ Visitors Can “Subscribe” to User and Receive Notice
of New Videos
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Videos Can Be Uploaded From Most Mobile
Phones to a Linked YouTube Account!
Copyright 2011 April L. Besl
Copyright 2011 April L. Besl
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Even Companies and Other Entities Have
Pages on These Sites!
Many Companies Even Have Employees
Dedicated Exclusively to Social Media
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Communicating With Consumers
Responding to Postings With Complaints
Sharing Information About the Company
A Form of Free Press and Advertising!
Copyright 2011 April L. Besl
Copyright 2011 April L. Besl
Copyright 2011 April L. Besl
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A Wealth of Information at Your Fingers…
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So What’s the Catch?
PRIVACY CONTROLS
Copyright 2011 April L. Besl
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There is a Lack of Expectation of Privacy
Regarding Public Postings on Social Media
◦ But Users Have Right to Select Privacy Preferences
◦ Guest v. Leis, 255 F.3d 325 (6th Cir. 2001)
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Controls Change What is Accessible By Attorneys
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Can Change What You See on a Facebook Profile
from This…
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Lock Twitter Accounts
Limit Accessibility of Facebook Profiles
Block Access to MySpace
Change What is Visible on LinkedIn
Copyright 2011 April L. Besl
Copyright 2011 April L. Besl
No Wall Posts
No Personal Info.
No Photos
And It Can Be
Limited Even More!
Copyright 2011 April L. Besl
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Is the Information No Longer Discoverable?
◦ No! It Can Still Be Discovered if Done Properly
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Expectation and Intent of Privacy Not Enough
◦ Recent Indiana S. District Case, May 11, 2010:
 EECO v. Simply Storage Management, LLC, 2010 WL
3446105
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“Simply Locking a Profile from Public Access
Does Not Prevent Discovery”
Copyright 2011 April L. Besl
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Relevant Information Still Discoverable
◦ Even When on Private Profiles or in Private Messages
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Example: Private Messages With Third Parties
Containing Information Regarding Sexual
Harassment Allegations or Alleged Emotional
Distress Held to be Discoverable
◦ Mackelprang v. Fidelity Nat’l Title Agency of Nevada
Inc, 2007 WL 119149 (D. Nev. 2007)
Copyright 2011 April L. Besl
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Must “Establish a Factual Predicate With Respect
to Relevance of the Evidence”
◦ McCann v. Harleysville Ins. Co. of New York, 2010 NY
Slip. Op. 08181 (Nov. 12, 2010).
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Have to Make a Showing of Adequate Relevancy
for Wanting the Information!
◦ “Where there is an indication that a person’s social
network sites contain information relevant to the
prosecution or defense of a lawsuit…and the law’s
general dispreference for the allowance of privileges,
access to those sites should be freely granted.”
◦ McMillen v. Hummingbird Speedway, Inc., No. 113-2010
CD (C.P. Jefferson, Sept. 9, 2010).
Copyright 2011 April L. Besl
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To Determine If Something is Relevant You
Need to Have Some Idea What is “Hidden” on
the Site.
So The Question Is:
◦ How Do You Find Out What Is There and…
How Far Can You Ethically Go?
Copyright 2011 April L. Besl
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Cannot Deceptively “Friend” Someone
◦ Whether Parties or Witnesses (Expert or Lay)
 Rules of Ethics Prohibit Attorneys from Making False
Statements and Engaging in Dishonest Conduct
◦ Whether Directly or Through An Agent
 Rules of Ethics Make Lawyers Responsible for Ethical
Violations of Hired, Non-Legal Personnel if Lawyer
Directed, Ordered, or Ratified the Specific Conduct
Copyright 2011 April L. Besl
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Can Access “Public” Pages
◦ No Ethical Rules Are Violated for Viewing Anything
That is Publicly Available
◦ No Expectation of Privacy for Publicly Viewable
Information
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Request Information and Communications
“Related” to Facts of Case
◦ Also Pictures Posted During Relevant Time
Copyright 2011 April L. Besl
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Can Also Serve Social Network Provider
◦ But! May Run Into Issues Where Provider Refuses to Turn
Over Information Under Stored Communications Act
 Facebook Very Passionate About SCA
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Stored Communications Act
◦ Generally Prohibits Electronic Communications Services
from Revealing Users’ Private Messages to Outside
Entities and Individuals, Absent Statutory Exception
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Mixed Results in Court to These Refusals
Copyright 2011 April L. Besl
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Party Discovery
◦ (1) List of All Email Addresses Used by Defendant
◦ (2) List of All Social Network and Video Sharing Sites
Used by Defendant With Their Member Names
◦ (3) Production of All Videos “Uploaded” Online
◦ (4) A Copy of All Posts Made by the Defendant
 Including Comments and Replies to Other Posts
◦ (5) If Applicable, A List of All Site Addresses Where
the Defendant’s Webcam Has Ever Had a Live Feed
◦ (6)All Posted Online Articles Authored, In Whole or
In Part, By the Defendant
Copyright 2011 April L. Besl
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Expert Discovery
◦ (1) List of All Email Addresses Used by Experts
◦ (2) List of All Social Network and Video Sharing Sites
Used by Expert With Their Member Names
◦ (3) Production of All Videos “Uploaded” Online by the
Expert
◦ (4) Copies of All Podcasts Involving the Expert
◦ (5) If Applicable, A List of All Site Addresses Where the
Expert’s Webcam Has Ever Had a Live Feed
◦ (6)All Posted Online Articles Authored, In Whole or In
Part, By the Expert
◦ (7) List of All URLs Owned or Maintained By the Expert
 Including Those Where the Expert Simply Has an Economic
Interest
Copyright 2011 April L. Besl
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Main Issues in Admissibility
◦ Relevance
◦ Authentication
◦ Hearsay
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To Decide Admissibility Issues Judges Have
Even “Friended” Parties to Review and
Authenticate Postings
◦ E.g. Barnes v. CUS Nashville, LLC
Copyright 2011 April L. Besl
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Federal Rule of Evidence 401 Definition:
◦ “Evidence Having Any Tendency to Make the
Existence of Any Fact That is of Consequence to the
Determination of the Action More Probable or Less
Than It Would Be Without the Evidence”
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However –
◦ Beware Prejudicial Effect of Evidence Actually
Precluding Admissibility!
Copyright 2011 April L. Besl
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The Issue:
◦ How Do You Prove the Online Post is the Work of
the Defendant or a Designated Agent of the
Defendant?
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Authenticate Via Member or User Name,
Content of Post, and Date and Time Stamp on
Post
◦ If Defendant Does Not Deny Member or User Name
Then Authentication Should Be Simplified
Copyright 2011 April L. Besl
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If Defendant Denies Member or User Name:
◦ Try to Authenticate Using Email Address for
Account if Email Addresses Were Produced in
Discovery
◦ May Be Essential to Obtain Entire Set of Records
Associated with Member Name from Third Party
Provider
 But You Could Run Into Opposition
Copyright 2011 April L. Besl
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Authentication of Video or Audio
◦ Video and Audio Clips Are Generally Easier to
Authentication Where Defendant is Present on
Screen
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Federal Rule of Evidence 901(b)(5)
◦ Allows for Authentication of a Voice by Lay Opinion
Copyright 2011 April L. Besl
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In Some Cases You May Have to Get Around a
“Hearsay” Objection
◦ Often Practitioners Rely On “Statement by Party
Opponent” Exception
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Federal Rule of Evidence 801(d)(2) Provides:
◦ Statement is Not Hearsay If:
 (1) It is the Party’s Own Statement, In Either an Individual or
Representative Capacity
 (2) A Statement of Which the Party Has Manifested an
Adoption or Belief in its Truth;
 (3) Statement By Person Authorized by Party to Make a
Statement on the Subject
Copyright 2011 April L. Besl
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Social Media Can Be An Effective Tool Not
Only in Cases But Also in Practice
◦ But Only If Done Properly!
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Use Must Conform With Local Ethics Rules
◦ In Discovery & Trial
◦ In Personal Use
◦ In Business
Copyright 2011 April L. Besl
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Review Relevant Online Presence
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The Victim
First Responders
Medical Personnel
Coroner’s Office Personnel
All Lay Witnesses
All Expert Witnesses
Anyone Who Will Testify Is Subject to Scrutiny
Based on Posted Online
 Cut-Off Any Harm to Credibility Ahead of Time
Copyright 2011 April L. Besl
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Review Social Media Pages Early in the Case
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Save Anything Seen Online Immediately
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Postings Can Be Deleted or Removed With a
Simple Click of an “X” Button
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Wayback Machine Can Also Be Helpful
◦ Social Media Pages Change Rapidly
◦ Relevant Posts Can Be Harder to Find After Time Passes
if Poster is Very Active
◦ Print Pages or Save Them Using Screen Capture (PRTSC
Key)
◦ Located at http://web.archive.org
Copyright 2011 April L. Besl
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Review Public Profiles for Potential Jurors
◦ Are They Active?
◦ Are They Already Talking About the Case?
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Question Whether They Can Stay Off Sites
◦ Not Only to Avoid Posts by Juror That Could Lead to
Mistrial – But Also to Avoid Opinions of Friends on
Sensationalized Cases
Copyright 2011 April L. Besl
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Avoid Posting False or Misleading Information
◦ Both On Your Own Sites and On Websites
◦ E.g. October 2010 Louisiana Supreme Court
 Reprimanded a Law Firm’s Management Committee for
Failing to Supervise a Non-Lawyer Who Had Posted
Misleading Qualifications About a Member of the Firm
on the Firm’s Website.
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Ethical Rules Preclude Such Dissemination of
False or Misleading Information
Copyright 2011 April L. Besl
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Same Ethical Rules Regarding Client
Solicitation and Confidentiality Apply Online
◦ Do Not Get “Post-Happy” About Individual Matters
or Information
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Beware Inadvertently Forming Client
Relationships With Persons Online
◦ Example: LinkedIn Answers
Copyright 2011 April L. Besl
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Florida Ethics Opinion
◦ Recent Florida Judicial Ethics Opinion Stated that
“Friending” Judges Conveys Impression of Being in a
“Special Position” to Influence Judge
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Doesn’t Matter If You Play Golf Every Week
With the Judge
◦ Only Matters How it Appears Online
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Nothing Like That in Ohio or Kentucky, But
Something to Keep in Mind!
Copyright 2011 April L. Besl
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Beware Unprofessional Posts About Cases or Judges
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Example: Florida Prosecutor Brandon White
◦ Made the National News for His Postings on Facebook Regarding
“Frustrating” Trial Set to Gilligan’s Island Theme
◦ “Just sit right back and you’ll hear a tale, a tale of a fateful trial,
That started from this court in St. Lucie County.
The lead prosecutor was a good woman, the 2nd chair was totally
awesome,
Six jurors were ready for trial that day for a four hour trial, a four
hour trial.
◦ The trial started easy enough but then became rough
The judge and jury confused,
If not for the courage of the fearless prosecutors
The trial would be lost, the trial would be lost.”
Copyright 2011 April L. Besl
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April Besl
513-977-8527
April.besl@dinslaw.com
THANK YOU!!!
Copyright 2011 April L. Besl