May 24, 2017

Ethics in the Electronic Age: Social Media Guidance for Attorneys

Do you have a LinkedIn account? How about a Facebook page? Twitter handle? Instagram? Blog? All of the above?

Have you ever considered the Rules of Professional Conduct when commenting on someone else’s Facebook post, or sharing a clever tweet, or even writing on your personal blog? If not, then you should.

Most lawyers are probably aware that there could be ethical implications to their professional use of social media, but personal use can also implicate the Rules. Learn more from Katrin Miller Rothgery of Brownstein Hyatt Farber Schreck in the video, below.

Ms. Rothgery’s presentation on Ethics in the Electronic Age was just one part of the 2017 Real Estate Spring Update. Purchase the full homestudy here, or call (303) 860-0608. CLE Pass Holders can access the MP3 and Video OnDemand homestudies for free. Find out more about the CLE Pass here.

Social Media Abuse of Elders

Editor’s Note: This post originally appeared on Barbara Cashman’s Denver Elder Law Blog on August 10, 2016. Reprinted with permission.

CashmanBy Barbara Cashman, Esq.

I recently came across this horrifying article published Monday in ProPublica, entitled “Federal Health Officials Seek to Stop Social Media Abuse of Nursing Home Residents.” It seems that some staff members of nursing homes are publishing photos, audio and video recordings of some residents in the social media like Snapchat, Facebook or Instagram, or sent in text messages as multimedia attachments. These pictures, audio, and video files often depict elder residents of the facilities in demeaning and humiliating ways so as to result in mental abuse. The Centers for Medicare and Medicaid Services has recently sent out a memorandum concerning this to the State Survey Directors.

Do the skilled nursing facilities have prohibitions against such intrusions in place? Some evidently did not, but there can be little doubt that nearly all will have such protections in place soon in light of these disturbing developments. Here’s an article about such violations in Ohio nursing facilities.

The CMS memo referred to above defines mental abuse as that abuse which:

[M]ay occur through either verbal or nonverbal conduct which causes or has the potential to cause the resident to experience humiliation, intimidation, fear, shame, agitation or degradation.  Examples of verbal or nonverbal conduct that can cause mental abuse include but are not limited to: nursing home staff taking photographs or recordings or residents that are demeaning or humiliating using any type of equipment (e.g., cameras, smart phone, and other electronic devices) and keeping or distributing them through multimedia messages or on social media networks.  Depending on what was photographed or recorded, physical and/or sexual abuse may also be identified.

ProPublica has been following this following these developments for many months; this article from December 21, 2015 details some of the incidents this mental and physical abuse of incapacitated elders perpetrate by the nursing home staff members. In a case in New York where a nurse aide took photos of an incontinent resident’s genitals covered in fecal matter and shared them with another staff member on Snapchat, he was fired and pleaded guilty to a misdemeanor count of willful violation of health laws. What I found particularly disturbing was the comment of one home’s administrator to ProPublica that “[t]echnology is a problem for us, for everybody, these days… The resident involved was not harmed but certainly it was a serious incident.” Are incapacitated nursing home residents not entitled to any human dignity and to be free from such exploitation for someone’s entertainment?

One of the incidents described by ProPublica is from August 2015. It occurred in a rural area of Colorado and involved a youth volunteer at a nursing home who took a selfie which showed a 108-year-old resident urinating. The volunteer apparently shared the photo with her friends at school and the facility did not learn of the offending photo until months later. The volunteer was not monitored by the facility but did report to the local police, and was later charged with invasion of privacy.

What is human dignity when it cannot be defended by an incapacitated elder? What is human dignity when it is not readily apparent or recognized in places where people are institutionalized for the paramount concern of their safety?

Dignity, as in the legal right, is not easily defined. In fact, you would be hard pressed to find many references to it in our laws. International law, specifically the international law of human rights, has much more to say about human dignity, but that is another blog post!

I will close with just a couple observations and questions.

If humiliation is the opposite of being treated dignity and respect, is our system of laws really equipped to deal with this type of new frontier of the rights of incapacitated persons to be free from intrusions by others who humiliate them for sport or humor?

Is the dignity of or respect for elders a right in this context or is it overshadowed by our concerns for safety, and how does an incapacitated elder’s diminishing bailiwick of autonomy factor into this equation?

On this note, here is a link to an interesting article about the dignity of elders. More to come on this very challenging topic.

© 2016 Barbara Cashman  www.DenverElderLaw.org

 

Barbara Cashman is a solo practitioner in Denver, focusing on elder law, estate law, and mediation. She is active in the Trust & Estate and Elder Law sections of the CBA and is a past chair of the Solo/Small Firm section. She is a CAMP mentor and blogs weekly on her law firm blog, where this post originally appeared. She can be contacted at barb@DenverElderLaw.org.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

The Ethical Danger of the Microsoft/LinkedIn Merger

Editor’s Note: This post originally appeared on Stuart Teicher’s blog, “Keeping Lawyers Out of Trouble,” on June 16, 2016. Reprinted with permission.

Headshot-Stuart-TeicherBy Stuart Teicher

This week it was announced that Microsoft is buying LinkedIn. There are some hidden attorney ethics implications about which we all need to be aware.

A review of the recent news articles announcing the acquisition reveals that a key motivating factor in Microsoft’s purchase of LinkedIn was access to LinkedIn’s data.  Of course, sharing data is nothing new. But when companies improve their ability to share our data across various platforms, my ears perk up. Not just because it’s creepy or because of obvious privacy implications. The type of data sharing they’re contemplating in the Microsoft/LinkedIn combination makes me worry about confidentiality (and other) issues.

Why they are merging:

According to the Wall Street Journal, Microsoft sees a critical synergy with LinkedIn:

“LinkedIn’s users are, arguably, Microsoft’s core demographic. They also offer Microsoft something it has long sought but never had—a network with which users identify. Microsoft needs to persuade LinkedIn users to adopt that identity, and use it across as many Microsoft products as possible.

Access to those users, as well as the enormous amounts of data they throw off, could yield insights and products within Microsoft that allow it to monetize its investment in LinkedIn in ways that the professional networking site might not be able to. [Microsoft CEO] Mr. Nadella already has mentioned a few of these, including going into a sales meeting armed with the bios of participants, and getting a feed of potential experts from LinkedIn whenever Office notices you’re working on a relevant task.“

In other words, Microsoft wants to have your Outlook and other Microsoft software products speak to your LinkedIn profile. The intersection of that data is valuable—various sellers of products and services would be willing to pay for it.

It appears that Microsoft wants to be able to read through the work we do on their products like Word, review our upcoming appointments in our Outlook calendar, search for keywords in our emails, and then find connections with people with our LinkedIn connections. That’s what they are searching for—connections they could monetize.

For instance, let’s say accountant X has an Outlook Calendar appointment which sets a meeting with “Charles McKenna of Account-Soft Corp.” Microsoft could then search LinkedIn and it would learn that McKenna works for a company that sells workflow management software. Well, now Microsoft knows the accountant is in the market for workflow management software… and they could sell that knowledge to other software companies who would then direct solicitations in the accountant’s direction. That’s an annoyance for an accountant, but a potential ethics disaster if he/she were a lawyer.

Basic issue, Confidentiality:

If Microsoft scours our Word documents and emails, then there could be Rule 1.6 confidentiality issues.  That’s so obvious that we don’t need to spend time talking about it now. I think the more unusual issues come from the Calendar function…

If they leverage the data in our Calendar, it could reveal our client relationships:

The substance of what we learn from the client is confidential, but so is the very existence of the lawyer-client relationship. Will the integration of these platforms make it easier for people to figure out who we represent?

Think about how much information Microsoft could piece together from our Calendar. They might see a potential client introduction (which lists Pete Smith as present), a court appearance (which lists Pete Smith as present), and a meeting for settlement purposes (which lists Pete Smith as present). It’s not going to be too tough for the Microsoft bots to figure out that Pete Smith is your client.

If they leverage data in our Calendar, it could reveal key substantive information that could harm the client:

If Microsoft looks at our Calendar they can see that we’re heading to a particular locale. They might then cross reference our LinkedIn connections and send a message to one of them that says something like, “Your connection Bruce Kramer is going to Chicago next week. Why don’t you look him up?”

That heads-up might give someone the incentive to look into our movements a bit more… and who knows what they could find. What if that info was given to a real estate agent that we know in Chicago… and maybe we are representing a successful land owner… and we’re clandestinely scouting a real estate purchase because we don’t want people to figure out that we’re there on behalf of our deep-pocketed client… because if they know, the purchaser will run up the price. That LinkedIn message tipped off the real estate agent and it could cost the client a lot of money.

If they leverage data in our Calendar, it could end up revealing a misrepresentation:

Imagine that Client A asks you to accompany them to a meeting in Los Angeles. You tell her that you can’t go because you’ll be on vacation on the East Coast. That’s not true, however. The truth is that you’ve already scheduled a meeting with a potentially new client in Los Angeles. You didn’t want Client A to know that you’d be in town because you didn’t want to have to shuffle between clients—it would just be too much work. You could have told Client A that you’d be in town but you didn’t have time to meet her, but you thought she’d be insulted. It was just easier to say you’re far away and be done with it.

Later, Client A gets a LinkedIn message that says, “Your Connection Mary Smith is going to be in Los Angeles next weekend… send her a message and try to link up!” Do you know what you are now? Busted. And not only do you have egg on your face, but you may also have committed an ethical violation.

Is the white lie that you told your client going to be considered a misrepresentation or deception per Rule 8.4(c)? That rule states: “It is professional misconduct for a lawyer to (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation…”

I know what you’re thinking… it was a half-truth. No harm no foul. Well, I searched the ethics code, and I didn’t find the term “white lie” or “half-truth” anywhere in the code. You should also note that Rule 8.4(c) does not require that the misrepresentation be “material.” It doesn’t allow you to lie about inconsequential things and there’s no modifying language- it just says that you can’t lie or deceive.

These are just a few issues. Some of these are clear ethics concerns, others are more akin to PR nightmares. Are they so terrible that we all need to get off LinkedIn right away? That might be a bit premature. After all, they only just announced the merging of the platforms- they haven’t actually done anything yet. I don’t know what dangers will actually be realized, or whether any dangers will be realized at all. What I do know is that part of being a responsible attorney in this technological age is to be diligent in thinking about these issues. As lawyers practicing in an ever-changing technological environment, we need to be aware of the potential problems. Keep your eye on the news and stay abreast about the details regarding the integration of these two platforms. Then, if you determine that you need to act, do so.  That way we are “keep[ing] abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” Comment [8], Rule 1.1.

Save the Date!

Stuart Teicher will be at the CLE offices on Thursday, September 8, 2016, to present two ethics programs. Registration is not yet open, but mark your calendars and don’t miss these important programs.

 

Stuart I. Teicher, Esq. is a professional legal educator who focuses on ethics law and writing instruction. A practicing attorney for over two decades, Stuart’s career is now dedicated to helping fellow attorneys survive the practice of law and thrive in the profession. Stuart teaches seminars and provides in-house training to law firms/legal departments.

Stuart helps attorneys get better at what they do (and enjoy the process) through his entertaining and educational CLE Performances. His expertise is in “Technethics,” a term Stuart coined that refers to the ethical issues in social networking and other technology. He also speaks about “Practical Ethics”– those lessons hidden in the ethics rules that enhance a lawyer’s practice. Stuart writes the blog “Keeping Lawyers Out of Trouble.”

Mr. Teicher is a Supreme Court appointee to the New Jersey District Ethics Committee where he investigates and prosecutes grievances filed against attorneys, an adjunct Professor of Law at Rutgers Law School in Camden, New Jersey where he teaches Professional Responsibility and an adjunct Professor at Rutgers University in New Brunswick where he teaches undergraduate writing courses. He is a member of the bar in New York, New Jersey and Pennsylvania. In 2014, he authored the book Navigating the Legal Ethics of Social Media and Technology (Thomson Reuters).

Colorado Court of Appeals: Business Records Properly Authenticated by Facebook Under CRE 901

The Colorado Court of Appeals issued its opinion in People v. Glover on Thursday, February 26, 2015.

Facebook—Evidence—CRE 901(b)—Admissions—Expert Testimony.

Defendant was the 36-year-old leader of a street family of homeless and runaway teens and young adults. The dead body of one of the young adults was discovered by the police in a gully next to an apartment complex. Among the victim’s injuries was the severing of one of his fingers.

Jordan Rowland was arrested on the day the body was found, but on an unrelated matter. In his pocket, however, police found the victim’s missing finger. The prosecution’s theory was that Rowland killed the victim at defendant’s behest.

On appeal, defendant contended that the trial court erroneously admitted printouts from his Facebook account of communications relating to the murder. The lead detective testified that he had subpoenaed records of defendant’s Facebook activity, and that Facebook complied with the subpoena and sent the detective compact discs containing the requested records. Therefore, sufficient evidence was presented under CRE 901(b) to conclude that the printouts contained content from Facebook. Additionally, sufficient evidence was presented under CRE 901(b) to permit the jury to conclude that the account belonged to defendant and that he sent the messages contained in the printouts. Further, the statements from defendant’s Facebook were admissions, which is an exception to the hearsay rule. Consequently, the Facebook records were properly admitted.

Defendant also contended that reversal was required because the lead police detective on the case gave unendorsed expert testimony. Here, the detective’s understanding of Facebook and its features does not appear to have been the result of any specialized knowledge; rather, it appears to have been based on an investigation uncovering information, experience, or knowledge common among ordinary people using, or considering the use of, Facebook. Further, any error resulting from the detective’s testimony was neither “obvious” nor “seriously prejudicial.” Therefore, reversal was not required.

Summary and full case available here, courtesy of The Colorado Lawyer.

Point/Counterpoint: YouTube Law—When Depositions Go Viral: (Counterpoint) Nyet to the Net

This article originally appeared in the February 2014 issue of The Colorado Lawyer. It is part of a two-part “Point/Counterpoint” series. Click here for the “Point” article.

Burtzos_FredCThree-and-a-half months before Disneyland and I appeared on the planet, the Dumont Television Network cancelled “Captain Video and his Video Rangers.” Captain Video, with the help of his Video Rangers, fought against the conspiracies and criminal elements of the late 1940s and early 1950s. Fifty-nine years later, I must respectfully disagree with my colleague John Pineau, who, in my opinion, is Colorado’s 21st-century incarnation of Captain Video. In particular, I disagree with John’s goal of creating a new generation of Video Rangers. Instead of appearing on live television, John and his apprentice rangers plan to use YouTube and other social media to post video depositions from civil cases on the Internet. This practice, which John claims is needed to bring “sunshine” about the legal world to the public, should be laid to rest alongside the likes of Al Hodge, who played Captain Video from 1950 to 1955 and who passed away in 1979.

I acknowledge the fact that technology—especially inexpensive cameras (I sometimes video record depositions with a camera I purchased on eBay for less than $50) and the ability to upload videos with a few key strokes and mouse clicks—physically allows anyone to post whatever he or she chooses on the Internet. I also am aware that the Internet is filled with videos of numerous legal proceedings, including those of Herman Goering, O. J. Simpson, Enron, and British Petroleum (BP). Still, I cannot believe that Judge Ito really thought it was a good idea to turn the O. J. Simpson case into a cable television reality show, nor can I comprehend anyone wanting to spend a great deal of time watching long dead Nazis pontificating about concentration camps. The only good thing I can say about the deposition of Tony Hayward is that it lead to my high school classmate replacing him as head of BP. The past is the past, and what some judge or tribunal allowed to be filmed and posted online cannot be removed from the archives of the Internet. I am concerned about the future as John says it should be.

I also acknowledge the very real possibility that, in the not too distant future, all court proceedings in Colorado, including every moment of every trial, will be digitally recorded, and anyone willing to pay the fee for a copy of the video record might then be able to post it online. I do not know whether this will pose copyright problems, but at present, anyone can buy a transcript of court proceedings, and I am not aware of any prohibition against posting public records, such as a trial transcript, on the Internet. There are no secret trials in America, and there should not be. The posting of pre-trial depositions, however, is another matter.

Not Lawyer’s Job to Retaliate

In a Denver Post article about you, John, and your Captain Video proclivities,[1] there is a discussion about how you were so outraged by the way some defendants tried to use the power of a government connection to intimidate your client, that after you won a judgment for your client against these defendants, you posted on YouTube the deposition video of a witness saying it was okay to lie to the government. As a result of this posting, the witness and his company apparently got into a quagmire of potential legal trouble, and even endured student protests.

In my opinion, John, once you won the case and collected the judgment, your part in the matter should have been over. It is acceptable for us attorneys to feel outrage when arguing a cause to the trier of fact, but personal outrage, no matter how justified, should not allow attorneys to try to “stick it” to someone after a case, even if he, she, or it richly deserves it. The case is about the client, not us. We took an oath not to act out of malice or outrage.[2] Going out of the way to try to embarrass a party or a witness, or to get him or her in trouble after a trial, is not okay. It is no problem for me if a client is irked and chooses to act on their outrage, as long as the client stays within the bounds of the law, but an attorney should refrain from pushing the matter once the cause is over.

Why Depositions Are Different

Even if there is no intent to try to expose a wrong or a perceived wrong, posting deposition videos online raises a host of thorny issues and problems. In depositions, the evidentiary rules are relaxed.[3] Deponents often are asked questions that could be objected to at trial but, because the answer to the deposition question might lead to the discovery of admissible evidence, it is allowed during the deposition.

Defendants in motor vehicle accident cases, for example, routinely are asked about their driving histories, the discussions they might have had with their liability insurance carriers about the accident, any traffic citations they received as a result of the accident in question in the case, and possibly their criminal history. The fact that a defendant (1) had his driving privileges suspended for six months a decade before the accident; (2) was convicted of misdemeanor theft; and (3) spoke about the careless driving citation he received following the accident with his liability insurance carrier likely would not be discussed at trial due to a variety of evidentiary rules.[4] In your universe, John, if your client did not get a good result in this case—or even if he did—it would be okay for you or the other Video Rangers to expose these non-admissible matters to the world, possibly causing grief to the 32-year-old defendant because his family, friends, and employer did not know he was convicted of petty thievery at the age of 20, or that he had his driver’s license suspended for drag racing when he was 22 years old.

Plaintiffs in injury cases routinely discuss their medical histories and, if a loss of consortium claim is involved, their sex lives. John, if you and your wife were rear-ended by a motorist on your way to the soon-to-be-opened Trader Joe’s in Boulder, and you filed a bodily injury suit as a result, would you and your wife want to see yourselves online testifying about (by way of a very fictional example): the sexually transmitted disease you contracted in law school, the three times during college you injured your back trying to ski moguls while intoxicated, and the thirty-seven sessions of marriage counseling the two of you had undergone before the motor vehicle accident? This is the universe you would be living in if depositions could be posted online.

An Ethical Slippery Slope

Still another issue in this developing quagmire of a debate is selective editing, which would be a major problem if deposition videos were posted online. In most depositions, I wager the attorney taking the deposition will find a few “golden nuggets” taken completely out of context to use at trial when questioning the deponent. If only those nuggets are posted online, doesn’t that paint a distorted picture of what the deponent actually had to say? Of course, if the goal is to make the deponent look bad anyway, then of course the new Video Rangers’ response is: “What’s the harm?” Well, the harm is very real. “Justice TV” could be an oxymoron in many cases.

John, I know you are not advocating taking the image of a deponent and, for example, putting it into an advertisement for bourbon, but if you post a video on your website of you making a deponent look foolish, aren’t you just appropriating the image of that person to further your law practice? By that reasoning, should the person be entitled to royalties for appearing in one of your home movies?

It seems that most of the courtroom clips we see on television involve high-profile criminal cases. It intuitively makes sense to anticipate that the parties to a criminal case might expect heightened public scrutiny of their situation as opposed to the parties in a routine civil case. After all, in a criminal case, the claim is that an individual violated the public law and order. In a civil case, the claim is often that one citizen tortuously or contractually caused damages to another citizen. I will guess that the average resident of Colorado Springs has no interest in a promissory note dispute between me and my neighbor, but that same person could very well be interested in a case where my child’s daycare provider has been charged with molesting my child and five other children.

I am not in favor of attorneys being a party to the posting of videos such as those that you mention, John—bank fraud, pollution, insurance bad faith, and so on. Attorneys have a different role in the legal system, and that role is not to be Alfred Hitchcock.

Trying to expand litigated cases into a worldwide arena beyond the courtroom makes no sense. It takes a private dispute that exists in a system in which those ultimately deciding the dispute are not allowed to use the Internet to decide the dispute,[5] and it turns it into a public alley fight that could remain online in perpetuity. Please note, John, that not everybody has the ability or resources to skip the court system to arbitrate a dispute.

The posting of deposition videos online could well encourage attorneys to modify their behavior at a deposition. Hardball tactics, either to look tough or to try to prevent embarrassing information from being disclosed, might become the new norm. This is not at all in keeping with CRCP 30, which tries to limit attorneys to objecting only to questions calling for the disclosure of privileged information, and it certainly is not in keeping with many routine trial court orders that specifically tell attorneys not to engage in obstructionist tactics or boorish behavior during discovery.

Conclusion

I know, John, that you have been quoted as saying that social media is the way to “take the truth and make it a little more public,”[6] but your idea about what “truth” should be posted online and why it should be posted online is not the same as mine. When a case is over, it should be put into storage and then forgotten. It ought not stay alive on YouTube, Facebook, your website, or anywhere else in cyberspace. Even if some horses have left the barn, a number of them can stay put. Unless you are ready to tell the world all of your darkest secrets, please take the idea of posting deposition videos online and lay it respectfully next to Al Hodge.

Rest in Peace.

Fred Burtzos is a Senior Claim Litigation Counsel at Paul S. Edwards & Associates in Colorado Springs—(719) 228-3835, fred.burtzos.gdz0@statefarm.com.

This article originally appeared in the February 2014 issue of The Colorado Lawyer. Articles are available online to CBA members.

 


[1] Lofholm, “Colorado Attorney Brings down the Hammer of Social Media Justice Via YouTube,” The Denver Post (May 22, 2013), www.denverpost.com/news/ci_23295396.

[2] The following is the Colorado Attorney Oath of Admission:

I do solemnly swear by the ever living God (or affirm) that: I will support the Constitution of the United States and the Constitution of the State of Colorado; I will maintain the respect due to Courts and Judicial Officers; I will employ only such means as are consistent with truth and honor; I will treat all persons whom I encounter through my practice of law with fairness, courtesy, respect and honesty; I will use my knowledge of the law for the betterment of society and the improvement of the legal system; I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed; I will at all times faithfully and diligently adhere to the Colorado Rule of Professional Conduct.

[3] CRCP 30 and 26(b).

[4] See, e.g., CRE 411; CRS § 42-4-1713.

[5] CJI 1:10.

[6] Lofholm, supra note 1.

Point/Counterpoint: YouTube Law—When Depositions Go Viral: (Point) An Open Democracy is a Healthy Democracy

This article originally appeared in the February 2014 issue of The Colorado Lawyer. It is part of a two-part “Point/Counterpoint” series. Click here for the “Counterpoint” article.
Pineau_JohnCNazi Hermann Goering is on YouTube at his 1946 trial in Nuremburg testifying about the necessity of concentration camps.[1] Charles Manson is on the Internet discussing his 1970 murder trial.[2] F. Lee Bailey’s powerful 1995 cross-examination in the O. J. Simpson trial is on the Web.[3]The thoughtful testimony of Bill Gates is posted from a 1998 video deposition.[4] Bill Clinton’s 1998 attempts to weave through a deposition are uploaded.[5] Andrew Fastow’s admission to Enron fraud in 2006 is posted throughout the Internet.[6] The 2011 video deposition of Tony Hayward, nervous CEO of British Petroleum, also is preserved for us online. And there are thousands of other public court records and depositions available at the click of a few keystrokes.[7]

Court records are public records, particularly after the trial is over. They are reviewed by us, and shared in books, studies, newspapers, television, and the movies. For centuries, these records have been open to the public, and for decades, they have included video exhibits and depositions. Public access is an accepted part of our constitutional plan for an open democracy. That venerable principle is being advanced by citizens who are securing their court files in cases that expose community hazards and then sharing the facts with the public on the Internet.

This practice is a growing pain for those who endanger our safety. Wayward corporations, and the insurance companies who represent them, expect that after trial, the court records of their misconduct will be forgotten, buried in a courthouse cellar, and covered with a sleepy layer of dust. Instead, these records are being uploaded so that the evidence is available to the public. The move is to openness and accountability—two necessary components of a healthy democracy.

The Public’s Right to Access Case Records

U.S. Circuit Court Judge Frank Easterbrook wrote in Union Oil Company of California v. Leavell:

People who want secrecy should opt for arbitration. When they call on the courts, they must accept the openness that goes with subsidized dispute resolution by public (and publicly accountable) officials. Judicial proceedings are public rather than private property and the third-party effects that justify the subsidy of the judicial system also justify making records and decisions as open as possible. What happens in the halls of government is presumptively public business. Judges deliberate in private but issue public decisions after public arguments based on public records. . . . Much of what passes between the parties remains out of public sight because discovery materials are not filed with the court. But most portions of discovery that are filed and form the basis of judicial action must eventually be released.[8]

Our courts proclaim that the public has a constitutional right to access court records.[9]

The presumption of public access recognized and promoted by the local rule finds its root in the common law rights of access to judicial proceedings and to inspect judicial records—rights which are “beyond dispute.” . . . The court in Publicker, and other circuit courts of appeal, have gone beyond the undoubted common law right, however, and have found a constitutionally protected right, rooted in the First Amendment, to public access to civil trials.[10]

The general public has had online access to the contents of federal court files since 2005.[11] In Colorado courts, “C.R.C.P. 121, adopted in 1988, creates a presumption that court files will be open to the public unless a court order provides otherwise.”[12]

Hence, the rule creates a presumption that all court records are to be open; it allows a court to limit access in only one instance and for only one purpose (when the parties’ right of privacy outweighs the public’s right to know); and it grants to every member of the public the right to contest the legitimacy of any limited access order.[13]

In Exum v. United States Olympic Committee, the U.S. District Court for the District of Colorado held that “[i]n the absence of a showing of good cause for confidentiality, parties are free to disseminate discovery materials to the public.”[14] Courts have found that “[a]ccess to discovery materials is particularly appropriate when the subject matter of the litigation is of general public interest.”[15]

Openness Generally Trumps Privacy Interests

Public access to court records is founded on the principles of an open democracy.

A presumption of openness inheres in civil trials as in criminal trials. . . . [T]he civil trial, like the criminal trial, plays a particularly significant role in the functioning of the judicial process and the government as a whole. . . . [P]ublic access to civil trials enhances the quality and safeguards the integrity of the fact finding process. It fosters an appearance of fairness, and heightens public respect for the judicial process. It permits the public to participate in and serve as a check upon the judicial process—an essential component in our structure of self-government. Public access to civil trials, no less than criminal trials, plays an important role in the participation and the free discussion of governmental affairs.[16]

In fact, it is “unreasonable, as a matter of law, for the parties to litigation to expect or to assume that all of the court files will remain private.”[17]

A claim that a court file contains extremely personal, private, and confidential matters is generally insufficient to constitute a privacy interest warranting the sealing of the file. Likewise, prospective injury to reputation, an inherent risk in almost every civil lawsuit, is generally insufficient to overcome the strong presumption in favor of public access to court records.[18]

Naturally, when a party’s privacy concerns outweigh the public’s right to know, the court will enter a protective order sealing such matters.[19] As trial lawyers know, protective orders are freely granted in cases that do not impact public safety or raise public concerns.

To protect community safety, parties have posted public records and videos of child abuse,[20] abuse of the handicapped,[21] nursing home abuse of the elderly,[22] school violence,[23] workplace violence,[24] bank foreclosure fraud,[25] drinking water contamination,[26] air and water pollution,[27] insurance bad faith,[28] and hundreds of other cases of public concern. In response, errant corporations have counter-punched with personal attacks and much more. For example, in the food industry, where video evidence has lead to successful civil and criminal charges, corporate lobbyists in twelve states are pushing legislation that criminalizes such videos and the videographers.[29] Fortunately, the fact that these laws would indict innocent witnesses has been noted by the press and prosecutors, and the bills have struggled for approval.[30] It is in this environment that I was contacted by my new friend Fred Burtzos, counsel for State Farm Insurance Company, and asked to debate the issue here.

So, how do citizens share these types of records? They collect the public portion of their court file, minus any sealed material. Using the records, images, and video depositions, they create a short video and upload it to the Internet. If their video exposes dangers to the community, it is likely to be watched and shared, and it may go viral. If it is not newsworthy, it is likely to have limited circulation.

Conclusion

The sharing of public records is not just growing, it is exploding. Over the last few years, my company, JusticeTV, has joined the trend to assist lawyers and their clients with the technical aspects of creating, editing, and uploading the videos. The process is simple. The law is well-established. And, like sunshine, it is healthy for our community.

John K. Pineau is a trial lawyer in civil and criminal courts. He has handled a number of high-profile cases and lectures on trial tactics and strategy. He also is the president of JusticeTV, LLC, a company that assists lawyers and their clients in creating and sharing public record videos—(303) 440-4444, johnpineau@yahoo.com, www.johnpineau.com.

This article originally appeared in the February 2014 issue of The Colorado Lawyer. Articles are available online to CBA members.

 


[1] See www.youtube.com/watch?v=mfwujaV7Ia8.

[2] See www.youtube.com/watch?v=7MZaEt6lOq8.

[3] See www.youtube.com/watch?v=gVoIz2zNX9U.

[4] See www.youtube.com/watch?v=m_2m1qdqieE.

[5] See www.youtube.com/watch?v=xHlt1W83JFU.

[6] See www.youtube.com/watch?v=9zxAJO7owy8.

[7] See www.youtube.com/watch?v=VUINT2ibjSE.

[8] Union Oil Company of California v. Leavell, 220 F.3d 562, 568 (7th Cir. 2000) (citing U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 27-29 (1994), and In re Memorial Hospital of Iowa County, Inc., 862 F.2d 1299, 1302-03 (7th Cir. 1988)).

[9] Mann v. Boatright, 477 F.3d 1140, 1149 (10th Cir. 2007) (citing Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978)).

[10] Huddleson v. City of Pueblo, Colorado, 270 F.R.D. 635, 638 (D.Colo. 2010) (citing Publicker Industries, Inc. v. Cohen, 733 F.2d 1059 (3d Cir. 1984)). See Mann v. Boatright, 477 F.3d 1140. 1149 (10th Cir. 2007) (“Courts have long recognized a common-law right of access to judicial records.”).

[11] See www.cod.uscourt.gov/courtoperations/faq.aspx.

[12] Office of the State Ct. Administrator v. Background Info. Serv., 994 P.2d 420, 429 (Colo. 1999).

[13] In Anderson v. Home Ins. Co., 924 P.2d 1123, 1126 (Colo.App. 1996), the court stated:

In the Open Records Act, § 24-72-201, C.R.S. (1988 Repl.Vol. 10B), the General Assembly has declared that, with certain specified exceptions, it is “the public policy of this state that all public records shall be open for inspection by any person at reasonable times. . . .” This public policy means that, unless there exists a legitimate reason for non-disclosure, any member of the public is entitled to review all public records. There is no requirement that the party seeking access must demonstrate a special interest in the records requested.

[14] Exum v. United States Olympic Committee, 209 F.R.D. 201, 206 (D.
Colo. 2002).

[15] In re Texaco, Inc. 84 B.R. 14, 17 (Bankr.S.D.N.Y. 1988) (citing In Re “Agent Orange” Product Liability Litigation, 821 F.2d 139, 146 (2d Cir. 1987)).

[16] Huddleson, 270 F.R.D. at 635, 638 (citing Nixon, 435 U.S. 589).

[17] Anderson v. Home Ins. Co., 924 P.2d 1123 (Colo.App. 1996) (citing Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975)).

[18] Doe v. Heitler, 26 P.3d 539, 544 (Colo.App. 2001).

[19] FRCP 26(c) and CRCP 26(c).

[20] See www.youtube.com/watch?v=N8RzT0NiruQ.

[21] See www.youtube.com/watch?v=IAYXJ26j2Po.

[22] See www.wkyc.com/video/1027702353001/0/Investigator-Hidden-camera-catches-nursing-home-abuse.

[23] See www.youtube.com/watch?v=xDifkMzSLuw.

[24] See www.youtube.com/watch?v=qkxbG5HADso.

[25] See 4closurefraud.org/depositions.

[26] See www.slideshare.net/MarcellusDN/lawsuit-deposition-of-pa-dep-official-tara-upadhyay-on-water-testing-procedures.

[27] See www.youtube.com/watch?v=HgR3lDg9KhY.

[28] See www.youtube.com/watch?v=5hIzsc7muxo.

[29] Oppel, Jr., “Taping of Farm Cruelty Is Becoming the Crime,” The New York Times (April 6, 2013), www.nytimes.com/2013/04/07/us/taping-of-farm-cruelty-is-becoming-the-crime.html?_r=0.

[30] Id.

SEC Issues Report on Social Media Disclosures

TrevorCrow

By Trevor A. Crow

The Securities and Exchange Commission (SEC) recently issued a report of its investigation relating to a Facebook post by Reed Hastings, the CEO of Netflix, which stated Netflix’s monthly online viewing had exceeded 1 billion hours. The SEC’s investigation was to determine whether Hastings or the Company violated Regulation FD under the Securities Exchange Act through the posting of this information.

In general, Regulation FD prohibits public companies, or persons acting on their behalf, from selectively disclosing material, nonpublic information to certain securities professionals, or shareholders, where it is reasonably foreseeable that they will trade on that information, before it is made available to the general public. Here, the SEC decided not to initiate an enforcement action against Netflix or Hastings. However, the report also offers guidance to public companies on the application of Regulation FD to disclosures made through social media.

The report explains that, under certain circumstances, public companies may disseminate material, nonpublic information through social media without violating Regulation FD if investors previously have been notified that specific social media will be used to spread such information. The report states that the framework set forth in theSEC’s August 2008 Guidance on the Use of Company Websites should be used when analyzing communications made through social media. Specifically, “the central focus of this inquiry is whether the company has made investors, the market, and the media aware of the channels of distribution it expects to use, so these parties know where to look for disclosures of material information about the company or what they need to do to be in a position to receive this information.”

The report also explained that without prior notice to investors, it is unlikely that a corporate officer’s personal social media site used to disseminate corporate information would qualify as a method “reasonably designed to provide broad, non-exclusionary distribution of the information to the public” as required under Regulation FD. In the Netflix inquiry, Hastings’ Facebook page had never been previously used to announce company metrics, yet the SEC still chose not to initiate an enforcement action against Netflix or Hastings.

Bottom Line: Public companies should have social media policies in place for their directors and executive officers to educate them about Regulation FD. Before a representative of the company posts any material and nonpublic information on a social media platform, the company should take steps to ensure that investors, the market, and the media are aware of this channel of distribution.

Trevor A. Crow is an associate in Dufford & Brown’s corporate transactions group. He focuses on public company securities compliance, M&A, entity formation, and startup company financing. He has counseled clients on a variety of business issues including entity selection, formation, finance, acquisitions, and numerous operating transactions. Trevor’s LLM in taxation makes him uniquely qualified to handle complex issues regarding business transactions and tax planning.

Trevor received his J.D. and LL.M. in Taxation from the University of Denver’s Sturm College of Law.  He is a member of the American, Colorado, and Denver bar associations; an executive member of the Colorado Bar Association Tax Section; he belongs to the Denver Metro Chamber Impact Denver Class of 2012; and he is a member of the Colorado Association of Business Intermediaries (CABI). He writes for the CBA Business Law Section newsletter, where this article originally appeared.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Social Media Policies: Permissible Employer Regulation

Joel Jacobson_pictureBy Joel Jacobson

Social media use is rapidly increasing and has become central to the workforce. Employers recognize that public information posted online is useful for monitoring employee activity and the portrayal of the company. However, new technologies result in unintended, legal consequences. Recently, an Applebee’s waitress was terminated after posting a customer’s receipt on reddit and the SEC warned Netflix’s CEO that his Facebook post might trigger securities regulations. Colorado attorneys should pay attention to legal developments within the social media context because the appropriate level of employer regulation of employee social media use remains unsettled.

Many laws are potentially implicated when an employer improperly regulates or misuses information from social networking sites. Notably, Anti-Discrimination laws (ADA, Title VII, ADEA), Stored Communications Act, National Labor Relations Act (protecting concerted activities for the purpose of collective bargaining or other mutual aid or protection), Lawful Off-Duty Conduct, and common law privacy claims should be considered. Recent decisions have targeted social media policies that are wide sweeping and impinge on protected employee action. In fact, rulings by the NLRB led large, publicly traded companies including GM, Target, and Costco to rewrite their social media policies.

The chairman of the NLRB explains that social media is the “new water cooler” and that current government regulation results from “applying traditional rules to new technology.” Application of the traditional rules takes place on a case-by-case basis and the NLRB found it permissible to terminate a single employee whose internet posts harmed the company and had no relation to protected activity. Workers have the right to talk with each other for the goal of improving pay, benefits, and working conditions. As such, social media policies should be revisited to determine whether they are too restrictive. Courts will look to company policies, procedures, and conduct so it is essential that Colorado attorneys help draft guidelines tailored to accomplish a specific, lawful end.

Employers will continue to turn to lawyers for guidance in this developing area of law. To this end, Colorado lawyers should know that employers must not access employee, online information by deceitful means. Also, common law privacy claims can be addressed with a written policy that defeats an employee’s reasonable expectation of privacy. Finally, a savings clause in a social media policy can explicitly state that the policy is not meant to prevent employees from engaging in protected, concerted activity.

Joel Jacobson is a Contracts and Operations Associate with H.B. Stubbs Company, LCC – a national design and fabrication firm headquartered near Detroit, MI for exhibits displayed by technology and automotive companies. He focuses on contracts, employment law, and a variety of non-legal business issues. Joel serves on the Executive Council of the Denver Bar Association Young Lawyers Division and has an interest in topics impacting start-up companies in the Denver entrepreneurial community. He can be reached by email at jmjacobson1@gmail.com or on Twitter @J_m_Jacobson.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

The Top Ten Mistakes Companies Make in Online Advertising: How to Comply with the FTC Act

Have you ever done an internet search and clicked on what appeared to be a likely answer, only to find yourself staring at a fake news site advertising some product? Or conversely, have you ever thought that you might get more search hits if you made your firm’s web page look like a news website? Learn about the pitfalls to this approach on Wednesday, May 16, 2012, as Scott R. Bialecki and Claude C. Wild, III, discuss the FTC’s advertising laws at CLE’s lunchtime program, “The Top Ten Mistakes Companies Make in Online Advertising.”

In addition to fake news sites, Mr. Bialecki and Mr. Wild will address such topics as website testimonials, endorsements in social media, online disclaimers, use of competitors’ names on websites, and related enforcement considerations. They will also examine common advertising and trademark infringement missteps associated with online advertising.

This program is a must-see for all attorneys with an internet presence. Don’t miss it!

CLE Program: The Top Ten Mistakes Companies Make in Online Advertising

This CLE presentation will take place on Wednesday, May 16. Participants may attend live in our classroom or watch the live webcast.

If you can’t make the live program or webcast, the program will also be available as a homestudy in two formats: video on-demand and mp3 download.

Tom Matte: A Twitter Chat Can Bring New Exposure to Your Law Firm

By scheduling regular tweet chats on topics of interest to your followers, your firm will be viewed as a go-to resource for the latest information

So, you’ve been on Twitter for a while now. You are building a nice number of followers and are conversing with them on a regular basis. Your posts are informative and interesting, and you are even retweeted on a fairly regular basis.

So what’s next? Why not hold a Twitter Chat? For the uninitiated, a Twitter Chat is when a group of people participates in a real time, online conversation around a particular topic, identified by a hashtag. Think about it as a conference call with people all over the world, where each participant can share their thoughts by typing 140-character tweets rather than talking over each other. It’s an easy way to get people who are interested in your topic to discuss concerns and share new ideas.

Sounds fun, right? While it is easy, there are some things to consider first. When setting one up, make sure you:

  • Choose a topic, time and a hashtag that makes sense
  • Choose a format and share that with your followers. It may be on a single topic (typically best), a forum for followers to ask you questions, or any number of other formats, but define it up front and stick to it.
  • Promote it in advance. Otherwise, you’ll be chatting by yourself.

So those are the basics. Scheduling and conducting a Twitter Chat is one thing, but doing it in such a way that followers will participate and want to come back for future ones is another. Here are some suggestions for doing it well.

  • Choose a topic people are interested in. What are your clients consistently asking you about? What do you see trending on Twitter lately? Put a bit of thought into your topic to ensure it’s one that will draw participants.
  • Be real. One of the beauties of social media is that it tends to break down barriers between people and allows them to show a bit of personality along with their expertise. So be authentic in your approach and don’t be afraid to show a bit of your fun side too.
  • Be consistent. If you plan to hold regular Twitter Chats, find a time that works for most of your followers and stick to it. That way people will add it to their schedule and be more likely to attend future ones.
  • Invite others to host. Just like in-person events, it’s good to mix it up a bit. Bring in other thought leaders and have them “guest host” by leading the conversation or answering questions. It will keep it more interesting and bring in entirely new participants since the guest host will promote it for you as well.

For example, Colorado Supreme Court initiated the new Civil Access Pilot Project this year, which makes significant changes to the Colorado Rules of Civil Procedure for certain types of business cases in specified judicial districts. The new procedures dramatically affect the way certain civil cases are litigated, and attorneys are beginning to wade through the new restrictions right now. Here’s a great opportunity for a Colorado firm to hold a Twitter Chat to hear what others are thinking, share their own views, and even discuss what their experiences have been with the rule changes so far. Who’s first?

Hosting a Tweet Chat can be a great way for you to add followers and increase exposure for your firm and practice area. Attend a few first to see how it’s done and take notes on what works well and what doesn’t. You can find them directly in Twitter, or TweetChat is designed to help with the process.

To read more, check out Mashable articles, 7 Tips for Better Twitter Chats and How to Start and Run a Successful Twitter Chat.

Tom Matte is CEO of Max Advertising, and focuses his endless enthusiasm on crafting creative and lasting marketing and advertising for law firms, helping them to ultimately grow their practices. Whether a 10-person firm or one of the Am Law 100, he works with firms of all sizes. Tom blogs at the The Matte Pad, where this post originally appeared on June 30, 2011.

Employment Law and Social Media: Rights, Obligations, and Disputes in the Workplace

The intersection of social media and the workplace has become a given. Use of social media is rapidly expanding while societal norms regarding exposure of employment-related information continue to erode. The result is an increasingly complex social media environment for employees, employers, and attorneys.

Added to the complicated mix are various cases and National Labor Review Board opinions that attempt to define what recourse an employer has against an employee over social media content. When can an employer fire an employee over what the employee said on their personal social media accounts? When is the employee’s speech protected? The questions can sometimes be hard to answer, especially if the company has an underdeveloped, or no, social media policy.

Once an employment decision is made, a host of new issues arise regarding the discovery of social media. Different rules apply to the discovery process in the context of litigation and mediation, and the distinction of what may or may not be discovered in either situation could make all the difference in a case.

On February 22, 2012, join us at CBA-CLE to learn about employment law and social media trends and how they affect you, your clients, and your practice.

This interactive program, Employment Law and Social Media: Rights, Obligations, and Disputes in the Workplace, will use hypotheticals and audience inquiries to approach numerous issues important for practitioners, including:

  • Recent Court decisions and NLRB opinions and their impact on workplace social media policies;
  • Discovery and use of social media in litigation; and
  • Discovery and use of social media in mediation.

As a primer for the discussion, Magistrate Judge Kristen L. Mix, a faculty member for the program, has provided us with a number of Practice Tips that attorneys should be mindful of when engaging in discovery of social media in litigation:

  1. Seek discovery of social networking information from the opposing party before subpoenaing Facebook or other social networking websites.
  2. Perform a public search for information usually available on a social networking website.
  3. Be mindful of your ethical responsibilities. Hiring a private investigator to “friend” the opposing party may be “inherently deceitful and unethical, even if the investigator uses his own name.”(1) Contacting the opponent yourself would likely be impermissible direct contact, and may also violate the rule providing that a lawyer may not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.(2)
  4. In complex cases, explore the possibility of “unbundling,” or development of a litigation management team to handle electronic data.(3)
  5. This is not your father’s discovery. Successful discovery of social networking information may require significant efforts to educate the judiciary about the fallacy underlying electronic discovery (just because something is electronic, it can be searched and produced instantly) and the actual cost and burden of production.
  6. Advise your clients to be prudent and avoid spoliation sanctions. “The courts have a right to expect that litigants and counsel will take the necessary steps to ensure that relevant records are preserved when litigation is reasonably anticipated, and that such records are collected, reviewed and produced to the opposing party.”(4)
  • (1) Phil. Bar Ass’n Prof’l Guidance Comm. Op. 2009-02 (Mar. 2009), available at http://www.philadelphiabar.org/WebObjects/PBAReadOnly.woa/Contents/WebServerResources/CMSResources/Opinion_2009-2.pdf.
  • (2) See, e.g., Robert S. Kelner & Gail S. Kelner, Social Networks and Personal Injury Suits, N.Y.L.J., Sept. 24, 2009, available at www.law.com/jsp/nylj/PubArticleFriendlyNY.jsp?hubtype=&id=1202434026615.
  • (3) Howard B. Iwrey et al., A Multidimensional Solution to the Problems of Runaway Discovery, 29 No. 6 OF COUNSEL 12 (June 2010) pp. 2-3.
  • (4) Pension Comm. of the Univ. of Montreal Pension Plan v. Bank of Am. Sec. LLC, 685 F. Supp. 2d 456, 472 (S.D.N.Y. 2010).

CLE Program: Employment Law and Social Media – Rights, Obligations, and Disputes in the Workplace [RESCHEDULED]

This CLE presentation has been rescheduled. Check back soon for program information or call (303) 860-0608.

Understanding Your Avvo Rating: How It’s Calculated and Why You Should Care

Avvo is a free online directory of lawyers that the public can use to search by state and practice area. You may be asking yourself, isn’t that basically the business White Pages, or the bar association’s Find-A-Lawyer directory, or Martindale-Hubbell revisited? Pretty much. A lawyer’s Avvo profile is essentially an online résumé or portfolio that lists achievements, publications, biographical information, and, if the lawyer is so inclined, photographs and videos of his or her choosing.

Unlike those more, ahem, venerable (or stodgy, depending on your perspective), ways to find a lawyer, lawyers seem to absolutely hate Avvo. It raises the ire of lawyers, in part, because Avvo represents a visible credibility check. A lawyer’s Avvo profile frequently will show up in the top 10 Google results, and Avvo crawls state ethical records and posts any run-ins with the Office of Attorney Regulation. This has resulted in several lawsuits from lawyers with a rap sheet.

That’s not the greatest criticism though—most of our fellow professionals keep their noses clean. The greater complaint is that, along with your fluffy profile, Avvo posts a rating out of 10.

According to the site: The rating is calculated using a mathematical model that considers the information shown in a lawyer’s profile, including a lawyer’s years in practice, disciplinary history, professional achievements, and industry recognition.

The term “mathematical model” is something I tend to associate with being what I would be unable to calculate. Avvo also claims their model is proprietary, which leads me to believe that it is a formula for some amazingly strong, light, and beautiful polymer—or something. With those considerations in mind, I set about cracking their formula by adding and subtracting credentials from my profile.

Essentially, every lawyer starts at 5.6. The “formula” is this: for every credential added in a different category, an attorney gets three tenths of a point. Peer reviews are worth the same. Publications in the same periodical are discounted a bit. That’s basically it. Add three publications and a presentation, and, by their formula, you are now a 6.9-rated lawyer.

There is a caveat to the site: The Avvo rating is not intended to be the only thing you use in choosing a lawyer.

Yeah. Right. Just like how Ebert’s thumb or Pitchfork’s numerical rating is only a small consideration in figuring out what movies to watch or music to buy. It’s absurd to think that legal services can and should be rated this way, but the Avvo profile is there, whether or not you claim it.

The best solution is just to spend a few minutes filling out the profile. We already have LinkedIn, Facebook, Justia—what’s one more? It really is nothing more than a summary résumé. In the event that a lawyer doesn’t choose to claim and fill out the profile, his or her information still appears on the website, along with any ethical concerns. However, an ethically clean but otherwise unknown (at least, to Avvo) attorney is not assigned a rating and is tagged as “no concern.”

Although building your Avvo profile is the practical solution—and it is a bit silly to get worked up about some website—something still rankles about the idea that the quality of a lawyer’s services can be determined by adding and subtracting résumé lines. To the extent that consumers are buying what Avvo is selling, complaining about it isn’t going to help. It’s up to us to manage the public perception of our profession relationships and public service.

Chris Mommsen is a criminal defense attorney in Denver.

The Docket eFile brings features from your favorite Denver Bar Association publication to you digitally. When you see the logo, you’re reading an article from The Docket. You’ll also still be able to read the full issue online at denbar.org/docket.