Electronic Service of Process: Are You Ready for It?
Today you would be hard-pressed to find a process that has not been impacted by technology. Below is an excellent article on the status of evolving technology and communication as it relates to the service of process.
The legal profession is not known for being ahead of the curve when it comes to utilizing new technology. In fact, the profession is more known to gravitate toward tradition over innovation. However, sometimes new technological/cultural norms force themselves upon the profession, and the courts are forced to deal with the issues. One of the issues courts are facing more and more is the issue of service of process via email or social media. While the cases below, one that permits service via email and social media and one that does not, are from outside of Pennsylvania, they illustrate an issue that will face all litigators in the near future; the tension created by trying to reconcile constitutional concerns pertaining to service of process and evolving technology/communication.
See, Electronic Service of Process Are You Ready for It | The Legal Intelligencer.
ABA Says It Is Okay To Internet Stalk Jurors
Lawyers who want to pick through troves of public information that jurors or potential jurors put on the Internet about themselves may do so, but they may not communicate directly with the jurors, such as asking to “friend” them on Facebook, according to a formal ethics opinion issued by the ABA Standing Committee on Ethics and Professionalism.
Formal opinions are based on the ABA’s Model Rules of Professional Conduct, which have been adopted by all states except California. The rules are not binding but serve as models that can be adopted or modified. Formal Opinion 466 addresses three situations concerning lawyer review of the Internet footprints of jurors or potential jurors.
• Looking at information available to everyone on a juror’s social media accounts or website when the juror doesn’t know it’s being done. The opinion says the “mere act of observing” is not improper ex parte conduct, much as driving down a juror’s street to get a sense of his or her environs isn’t.
• Asking a juror for access to the his or her social media. The opinion says that is improper, much like stopping the car to ask the juror’s permission to look inside the juror’s house for a better view.
• When a juror finds out, through a notification feature of the social media platform or website, that the lawyer reviewed publicly available information. The formal opinion says the social media provider, not the lawyer, is communicating with the juror, the same as if a neighbor saw the lawyer’s car pass by and told the juror.
See, Lawyers can look up jurors on social media but can’t connect with them and FYI – The ABA Says It Is Okay To Facestalk Jurors
Publication: Social Media 101 – The Rules of Engagement
Social media is a cluster of global Tweets, shares and content embedded in every corner of the web. No longer is it only used by the young and restless. Each day over 190 million Tweets are sent, while approximately 265 million people check their Facebook pages. The dynamics of Social Media has changed everything, making it more imperative than ever that we use it properly. One mis- Tweet, mis-share or upload can cause you, your client or your firm tons of money and irreparable harm.
You are what you Tweet
Those words ring true now, more than ever. Despite this notion, the glaring social media gaffes of others continue to amaze. Social media titans such as Twitter, Facebook and Instagram grant us an immediate connection with the world — our own, readily available soapbox to project our voice for the world to hear. When used properly, they are amazing tools: a means to share opinions, personal experiences and information. However, it all comes at a great price of responsibility.
As the old adage goes, “to whom much is given, much is required.” Quick and convenient access to social media elimi- nates the filtering process that would natu- rally occur when publicizing one’s feelings. Therefore, it is important not to allow the relaxed forum to delude you. You are still responsible for your thoughts and actions, arguably to a higher degree when those thoughts are posted and made available for anyone to derive their own meaning.
I originally wrote this article in February of 2014. This piece is an updated version of that post, geared toward young attorneys and their clients, further highlighting the importance of proper use of social media. It was published by the PA Bar Association Young Lawyers Division in the Summer 2014 At Issue publication.
To read the article in its entirety see, Social Media 101: The Rules of Engagement
You have the right to remain silent, anything you Tweet can & will be used against you
“When the, streets is watching Blocks keep clocking Waiting for you to break, make your first mistake…” – Jay Z
Those infamous lyrics apply now, more than ever. Yet, the glaring social media acts of others continue to amaze. Twitter, Facebook, and Instagram (just to name a few), grant us an immediate connection with the world. Our own, readily available soapbox to project (type) our voice (words), for the world to hear (read). When used properly they are amazing tools; a means to share opinions on current events and personal experiences. But, it all comes at a great price – a gift and a curse, if you will.
As the old adage goes, “to whom much is given much is required.” Convenient access to social mediums eliminate the filtering process that would naturally occur when publicizing one’s feelings. It is thus important to not allow the relaxed forum to delude you. You are still responsible for your thoughts and actions, arguably to a higher degree once those thoughts are posted and available for anyone to derive or attach their own meaning.
Every week in the news, we are confronted with a controversial post made by someone on social media. Often, followed with regret and attempts to redact or delete; but unfortunately, once posted, the damage is already done. Recently, it was Richard Incognito of the Miami Dolphins who could not help himself.
Afterwards, water cooler conversations promptly begin questioning how the offender could be so reckless (my mother taught me to never call anyone dumb, so I will refrain). From the outside looking in, it is always a terrible idea, so why do we continue to see these same mistakes? The examples are endless, Teenager threatens to shoot up school on twitter arrested, drug dealers use Instagram to distribute. The story repeats itself so often that I have concluded it can happen to anyone. I am convinced a social media troll exist, hijacking minds, perusing accounts, and wrecking havoc… No, but seriously, these transgressions have to be addressed.
Going one step further, an individual’s social media profile is often where civil and criminal investigations begin today. These accounts possess an abundance of information; one’s interests, whereabouts, inner-thoughts, perspective, and future plans. Tools such as BrightPlanet’s, BlueJay Law Enforcement Twitter Crime Scanner allow police departments to conduct pre-crime searches on Twitter. Invasive? Maybe, but the rationale is the fact that it helps to prevent future acts of crime. Yes, our very own “Minority Report.” A very slippery slope indeed, but only the future knows where it will lead us.
As an attorney it is imperative that you not only represent yourself well on social networks, but also educate your client. Many individuals consider their account to be secure simply because they mark it private, requiring others to request to view their profile for access first. While this may be quite true, do you know every follower that you accept? Are you sure that long time friend that you accepted is really him or her?
For now, If you are an active ‘social networker’ it is important to take your post seriously. Expect the world to have access to your post, forever! Consequently, post only those things that you are comfortable with anyone seeing. Taking into consideration that your feelings about any given topic may not always be as flagrant as they are now. The post or tweet should be something that with reasonable deference you are OK with 20 years from now. After all, how are you going to feel when your child accuses you of hypocrisy and presents you with your own tweet, after you tell him or her that they cannot do something that, “you tweeted?” 😦
Update:
Not long after completing this piece, I discovered that the Delaware Supreme Court recently ruled on the admissibility of Facebook and social-media evidence. This article written by Molly DiBianca, highlights the importance of social media-evidence and its evolution. See, Delaware Supreme Court Rules On Admissibility of Facebook Evidence
The Burgeoning Young Attorney 