Recent Legal Ethics Issue in Florida and the ABA’s Social Media Opinion

Three Florida lawyers have been accused of setting up opposing counsel for a DUI arrest. In a story that reads like a script for some variation of Law and Order:

The simmering legal scandal centers on a bitter defamation trial between warring radio shock jocks Todd Schnitt and Bubba the Love Sponge Clem.

In January 2013 after a day in court, attorney C. Philip Campbell, who represented Schnitt, sat in an upscale steakhouse bar downtown. A young paralegal from the Adams & Diaco firm [representing Clem] took the stool next to him, lied about where she worked, flirted and drank with him, according to witnesses. Campbell was later arrested for DUI while driving her in her car.

Then came the revelation of multiple cellphone calls and texts that flew that night between the paralegal in the bar, her bosses and a Tampa police DUI sergeant outside Malio’s Prime Steakhouse.

Read the entire sordid story: Florida Bar Files Complaints Against Lawyers in Tampa DUI Scandal, Tampa Bay Times, June 4, 2014.

In April, the ABA issued Formal Opinion 466, stating that it is acceptable for lawyers to look at a juror’s social media profile, but not acceptable to contact a juror via social media. This includes friending via Facebook and sending Twitter or LinkedIn requests to jurors who restrict access to their accounts. A lawyer must notify the court if, while viewing a juror’s publicly available social media information, she learns that the juror is engaging in conduct that appears to be “criminal or fraudulent, including conduct that is criminally contemptuous of court instructions.”

Mark A. Berman, Ignatius A. Grande and Ronald J. Hedges, writing for the New York Law Journal, are critical of the ABA opinion, believing that it does not go far enough in protecting jurors.

We suggest that the ABA opinion does not appropriately protect jurors and insulate them from outside influences such as contact by counsel. We believe that the appropriate way to proceed when seeking to investigate jurors is set forth in the “Social Media Ethics Guidelines” issued on March 18, 2014 by the Commercial and Federal Litigation Section of the New York State Bar Association. Guideline 5.B provides that: “[a] lawyer may view the social media … of a prospective juror or sitting juror provided that there is no communication (whether initiated by the lawyer, agent or automatically generated by the social media network) with the juror.”

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