July 18, 2019

Archives for February 15, 2012

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.

e-Legislative Report: Week Five, February 13, 2012

At the Capitol – Week Five

The latest Legislative Video Update with Michael Valdez outlines the most straight-forward bill the CBA has ever sponsored.

HB 12-1233 – Concerning the ability of a court to enter a decree of legal separation in certain circumstances without the appearance of the parties.

Sponsored by Rep. Jeanne Labuda and Sen. Morgan Carroll, the Family Law Section of the CBA brings you a bill where the title of the bill is pretty much the bill.

In a dissolution of marriage action, if there are no children of the marriage and the parties have entered into a written agreement concerning the division of marital property, a court may enter a degree of dissolution by affidavit, without the appearance of the parties. The bill aligns the process for parties seeking a legal separation by permitting a court to enter a decree of legal separation, under the same conditions, without the appearance of the parties.

The bill is scheduled for review by the Judiciary Committee on Tuesday, February 14 at 1:30 p.m.

Bar Sponsored bill moves forward

The Senate Judiciary Committee approved SB 12-131 in a short committee hearing on Wednesday, February 8. CBA sponsored, SB 12-131 – Duty Search for Designated Beneficiary Agreements, clarifies a PR or a trustee’s liability when conducting a search for a valid, unrevoked Designated Beneficiary Agreement (“DBA). The bill moves to the Senate floor for consideration on 2nd Reading.

Bar supported legislation passes initial hurdle

HB 12-1074 – Judicial Oversight of Guardians and Conservators. On Thursday, February 9, the Judiciary Committee unanimously approved the bill. This will authorize the court with jurisdiction over a guardianship of an incapacitated person or over a conservatorship of a protected person to have access to data maintained by other state agencies in order to conduct an investigation when a guardian or conservator has failed to file required reports with the court, or has failed to respond to court orders. The Elder Law Section worked out amendments with the Judicial Branch to clarify the extent of the search that a court undertakes to find a missing guardian or conservator. The bill moves to the floor of the House for action on 2nd Reading.

CBA Legislative Policy Committee

For followers who are new to CBA legislative activity, the Legislative Policy Committee (LPC) is the CBA’s legislative policy making arm during the legislative session. The LPC meets weekly during the legislative session to determine CBA positions from requests from the various sections and committees of the Bar Association.

Friday, February 10 – “Juvenile Law Day” at the LPC

The Juvenile Law Section requested positions on several pieces of legislation.

HB 12-1139 – Pretrial Detention of Children Tried as Adults

The Juvenile Law Section requested and received authorization from the LPC to support HB 12-1139. The bill changes the process for place of pre-trial confinement for a juvenile who may be charged as an adult. The bill puts the decision for confinement back with the judge instead of the current process of allowing the prosecuting attorney and the defense counsel reach a stipulation. The bill is scheduled for consideration by the Judiciary Committee on Thursday, February 16 at 1:30 p.m.

SB 12-033 – Child Fatality Reviews

The Juvenile Law Section sought permission to support SB 12-033 – Child Fatality Reviews. The bill adds near fatalities and incidents of egregious abuse or neglect to the responsibilities of the department of human services child fatality review team. The LPC voted unanimously to support the request of the Juvenile Law Section and to support the bill.

SB 12-099 – Expand Access to Academic Model Juvenile Facility

The Juvenile Law Section has concerns with the direction that SB 12-099 – Expand Access to Academic Model Juvenile Facility. The Juvenile Law Section stated several concerns with this bill draft:

  • Mixing correctional and child welfare systems flies in the face of best practices;
  • The facility that is the subject to the legislation – Ridge View Youth Services Center – does not provide the treatment services for the foster care protection.

The LPC voted to oppose the legislation.

SB 12-056 – Court Appointments Domestic Relations Cases

The Juvenile Law Section teamed up with the Family Law Section to request CBA opposition to SB 12-056 – Court Appointments Domestic Relations Cases. The bill is being held on the Senate 2nd Reading calendar to give the Family and Juvenile Law Sections time to find a compromise. The primary objection to the latest iteration of the bill is the shift from making the order to conduct a Parental Rights Evaluation (“PRE”) an absolute right to a discretionary decision by the district court. The LPC agreed with the request from the Juvenile Law Section and voted to oppose the bill.

Coach’s Corner: Do Your Due Diligence on New Clients

Under Rule of Professional Conduct 1.16, a lawyer may withdraw from representing a client if “the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client.”

However, withdrawing from a representation already begun is extremely difficult, as much of the rest of Rule 1.16 attests. An attempt to withdraw without adequate communication about and careful records of the difficulty that the client has caused — whether for nonpayment of fees, lack of cooperation or some other failing — may bring a state bar disciplinary action requiring future work without pay to fulfill ethical obligations toward the client.

Withdrawal cannot be done without reasonable notice to the client, allowing time for employment of other counsel, surrendering the client’s papers and property and refunding any advance payment of fees that have not been earned.

The simple fact is that no lawyer needs to contend with such headaches. The antidote to withdrawal is to undertake full due diligence before entering into a formal engagement agreement with the client. At the time of engagement, a lawyer must determine whether the goals of the client are understood and can be met. This also requires determining whether the client will facilitate achieving those goals. And facilitation, as Rule 1.16 suggests, means paying the bill and cooperating with the lawyer.

Due diligence on the client’s willingness and ability to pay should be documented in the initial engagement agreement. This investigation is a step that too many lawyers neglect, though it can be as simple as requesting a credit report from one of the consumer credit agencies or from a business credit reporter such as Dun & Bradstreet.

Once it is clear that prospective clients can pay, a signed engagement stating the terms and responsibilities for payment attests that they will pay. Clients who cannot or will not sign a fee agreement or pay a retainer, or who want to start now and pay later, should be considered suspect.

Cooperation is a similar issue. Avoid a client with unrealistic expectations or demands. Discussing engagement terms will frequently uncover the client who will in the future express irritation with delay, chronically complain about everything, demand constant or instant attention or expect unrealistic or abnormal hand-holding. Telltale signs are when prospective clients:

  • insist that their matter is “life and death”; such clients will often be future sources of last minute emergencies that at best are irritating and at worst can result in errors under pressures;
  • use pressure tactics to urge that their matter be handled immediately.
  • demonstrate a bad attitude toward lawyers and the judicial system, or suggest that they know better than the lawyer what needs to be done; and/or
  • cannot articulate what they want their lawyer to achieve.

Due diligence is a business essential. When you determine that a client will perceive what you do as being worthwhile and valuable, you are more likely to have successful engagements and a financially successful firm. Conversely, rejecting potential problem clients before representation will enhance that success by eliminating fee-collection difficulties and possible malpractice claims.

Ed Poll is a nationally recognized coach, law firm management consultant, and author who has coached and consulted with lawyers and law firms in strategic planning, profitability analysis, and practice development for over twenty years. Ed has practiced law on all sides of the table and he now helps attorneys and law firms increase their profitability and peace of mind. He writes a syndicated legal column, Coach’s Corner, where this post originally appeared on January 23, 2012.

Life in the Gap (Part 3): Hell Hath No Fury Like an Ego Scorned

Editor’s Note: This is the third in a four-part series of job search and career transition articles. Parts one, two, and four are also online.

What we’re up against in the Gap is “ego.” By that, I mean what makes us who we are – the dynamic organizing principle that gives our lives psychic shape and physical expression, that creates and sustains who we are, what we do, and what we have.

Ego accounts for how we make decisions, our likes and dislikes, our areas of competence and ignorance. It draws reality into orbit around itself, defines what’s normal and what’s not, what’s safe and possible and predictable, and what isn’t.

Ego was formed when we were young, to make us feel safe in a scary world. It gives us our sense of self, creates boundaries that differentiate us from others. It’s the summation of the beliefs and behaviors that shapes our habitual experience of life.

Ego is why we resist change – even the change we want. Ego blocks new ideas not on their merits but as a matter of policy, because it has created – on a deep, subconscious level we’re probably not in touch with – beliefs that some things are possible for ourselves and some things aren’t. When we challenge those beliefs, they resist us, and until we root them out, they’re going to prevent us.

The Gap comes into existence when we dare to defy those beliefs by moving toward what we want. The Resistance we meet in the Gap is ego shuddering in the face of our passionate commitment to change. The bigger the change, the greater the threat, and the fiercer ego’s resistance. Ego began as a normal part of psychological and social development when we were kids. Now it turns on us. What was once our friend and teacher and bodyguard is now our Resistance.

Ego can’t create the new, but it can and will sabotage our efforts to do so. Either we break ego’s control over us or we go back where we came. The Gap is where we settle the issue.

And hell hath no fury like an ego scorned.

[to be continued]

Kevin Rhodes left a successful 20+ years career in private practice to pursue a creative dream. Now, he writes screenplays and nonfiction and leads workshops on change for a variety of groups, including the CBA’s Job Search and Career Transitions Support Group. His latest workshop, Work With Passion: Find Your Fire and Fuel It!, was held January 10, 2012. Watch for a follow-up program this spring.

Tenth Circuit: Defendant Distributed Drugs Within 1000 Feet of a Park Containing a Playground as Defined by Statute

The Tenth Circuit Court of Appeals published its opinion in United States v. West on Tuesday, February 14, 2012.

The Tenth Circuit affirmed the district court’s decision. A confidential informant purchased controlled substances from Petitioner. Some of these purchases occurred at Petitioner’s apartment, which is within 1000 feet of a park. A grand jury indicted Petitioner on four counts related to the sales near the park, charging Petitioner with possessing and distributing cocaine and marijuana within 1000 feet of a public playground. “At the close of the Government’s case, [Petitioner] moved for a judgment of acquittal, arguing the evidence failed to establish that [the park] is a ‘playground’ within the meaning of [the statute].” The district court denied Petitioner’s motion, and the jury found him guilty. The district court also denied Petitioner’s motion for a new trial and held that “the Government’s evidence ‘relating to the park was sufficient to satisfy the statutory definition of ‘playground’ and to support the jury’s verdicts.'”

The statute in question “defines ‘playground’ as an outdoor public facility ‘containing three or more separate apparatus intended for the recreation of children including, but not limited to, sliding boards, swingsets, and teeterboards.'” The district court held that “[e]ven if the jury found the [jungle gyms] constituted one apparatus, . . . the . . .baseball diamonds, volleyball courts, and [the park]’s other amenities are each apparatus intended for the recreation of children.” The Court agreed with the district court and found that “the Government introduced uncontroverted evidence at trial that [the park] contains ‘four baseball fields, two soccer fields, two tennis courts, . . . two handball courts, [and] a volleyball court’ in addition to the swingset and playground equipment.” The Court concluded that this evidence, at a minimum, would have allowed the jury to reasonably find that the baseball field with the backstop constituted an “apparatus,” and thus, the park constitutes a “playground” within the meaning of the statute.

Tenth Circuit: Unpublished Opinions, 2/14/12

On Tuesday, February 14, 2012, the Tenth Circuit Court of Appeals issued one published opinion and eight unpublished opinions.


Johnson v. Sedgwick County Sheriff’s Dep’t

Esquivel v. Warden of El Reno Corr. Facility

Stafford v. Stewart

United States v. Coulter

Park v. TD Ameritrade Trust Co.

Myers v. Koopman

United States v. Oyer

Najera v. Murphy

No case summaries are available for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.