The revised model jury instructions on the use of social media, released last week by the federal judiciary, have an interesting feature, Justia columnist Anita Ramasastry notes.

In addition to banning the use of social media to discuss the case or conduct research, the judge is supposed to admonish the panel, “I expect you will inform me as soon as you become aware of another juror’s violation of these instructions.”

Ramasastry writes:

Granted, jurors have always been expected to report misconduct by fellow jurors during deliberations. But are we, as citizens, going to be effective gatekeepers for our colleagues in the jury room? Is it our job to figure out who is going on Facebook? Will the instructions create a situation where we all cautiously try to spy on one another, and catch fellow jurors behaving badly? …

Even though fellow jurors have already played a key role, in some cases, in enforcing the social-media ban, do we really want to play the role of being of fellow jurors’ keepers?

To me, the admonition seems less a mandate than permission — letting jurors know it’s not just OK to tell, but expected. Is there really a downside to this?

When it comes to creating a potential attorney-client relationship, “Discussion” is out; “Consultation” is in.

That change, designed to put online communications on par with actual conversations, was adopted Monday by the American Bar Association’s House of Delegates as a result of the work of the Commission on Ethics 20/20.

The vote in favor of Resolution 105B amends several of the ABA’s Model Rules of Professional Conduct to provide more guidance on online marketing and lead-generation. As Debra Cassens Weiss writes for the ABA Journal, 105B addresses such questions as:

When do online discussions give rise to duties to prospective clients? May a lawyer generate leads through Groupon? What type of online communications are impermissible solicitations?

The changes include replacing “discussion” with “consultation” in Model Rule 1.18, which deals with duties to prospective clients. Lawyers with their own smartphone apps may want to pay close attention here: “According to new commentary,” Cassens Weiss writes, “duties may arise if a lawyer invites the prospective client to submit information about possible representation without sufficient warnings or cautionary statements.”

Resolution 105B also amends Model Rule 7.3 to deal with online client solicitations. And it adds a new comment to Model Rule 7.2 to address marketing methods like Total Attorneys, Martindale-Hubbell’s Lawyers.com and even, yes, Groupon. The new comment says it’s OK to pay for “lead generation” services, provided the generator doesn’t vouch for the lawyer’s credentials or abilities, or create the impression that it has chosen the lawyer by analyzing the potential client’s legal problems, or pretend that the recommendation is being made gratis.

Finally, if you’re the kind of lawyer who thinks none of this applies to you because your social network is more about your crowd than The Cloud, well, think again. The House of Delegates also approved Resolution 105A on Monday. Under a new comment, 105A adds to Model Rule 1.1, the duty to provide competent representation now requires not only that you keep up with changes in the law, but also with the risks and benefits associated with new technology.

Those were just two of the resolutions adopted at the ABA’s Annual Meeting in Chicago, which wraps up on Tuesday. For more information on the delegates’ votes and other reports from the meeting, click here.

Welcome to a new week and the return of double-digit temperatures. Here are a few news items to accompany your Monday.

– SCOTUSblog examines how cable networks got the Affordable Care Act decision wrong.

– Be careful when tweeting in Bahrain.

– Lawyers for the president’s campaign say “‘‘O’ no you don’t” to merchandise website.

– Supreme Court receives constitutional challenge to the federal Defense of Marriage Act’s benefits exclusion.

Lots of options during the first educational session at the Maryland State Bar Association’s Annual Meeting in Ocean City. But, this being a blog, I felt I would not have been doing my duty if I did not attend the session on technology.

There was lots of talk of gadgets (Livescribe smart pens), apps (FastCase, Clio) and social media at the session, sponsored by the Solo and Small Firm Practice Section.

The big takeaway from the speakers was to embrace the technology. One audience member asked Hughie Hunt, a presenter, how secure cloud-based case management is.

“That’s a very 1980s question,” Hunt replied to laughter. “How secure is anything?”

The audience skewed older, many taking notes with pen and paper (although there were a few iPads in the crowd). So there was a lot of Tech 101. Dropbox, for example, was a “bigger and dumber version – in a good way” of Evernote for storing and sharing files, said presenter Bruce Godfrey.

There were also plenty of reminders that new technology doesn’t mean you can forget old ethics.

“FindLaw made me do it is not a defense” before the Attorney Grievance Commission, Godfrey said. “If you delegate marketing, you delegate ethics.”

Godfrey was also skeptical of lawyers marketing themselves online.

“We’re not cans of soup,” he said. “Our brand is our name on our letterhead.”

But that doesn’t mean you can’t make a name for yourself in social media, according to presenter (and Generation J.D.’s own) Heather Pruger.

Setting up a Facebook page, Twitter account or LinkedIn profile is OK, she said, but being engaged is a better way to enhance and expand your professional network and reputation.

“Social media is very much a two-, three-, four- and five-way street,” Pruger said.

The standard warnings you’ve probably heard a million times already still apply — don’t mix professional and personal conduct in social media and don’t do advise your client to do anything online you wouldn’t advise them to do in the real world. Pruger told the story of one lawyer fined $700,000 for advising a client to delete her Facebook profile during litigation.

Pruger recommended lawyers advise clients to stay off social media during litigation “unless they have a really good reason not to.”

This week it is all about Facebook and Twitter, even for general counsels.

Asked: Our weekly question to the In-House community

National Labor Relations Board Acting General Counsel Lafe E. Solomon issued his latest report on employee social media use May 30, his third in less than a year. Solomon examined the practices of several companies’ social media policies but basically maintains that when companies create too many rules for social media use, they violate the National Labor Relations Act by limiting employee rights.

Solomon is also not the only one talking social media in the workplace lately. The Maryland General Assembly passed a bill in April banning employers from asking employees for their passwords to their social media accounts.

Here’s our question for you:

What are your companies’ policies on social media use and how do you deal with the issue as a general counsel?

Leave a comment below or email me.

Need to Know:

• Now as to what’s what in the in-house world. This week, we have general counsels coming, going, even taking pay cuts. We have the details on the biggest moves in the industry:
• Fannie Mae made its general counsel, Timothy J. Mayopoulos, its new CEO. Mayopoulos, however, will go from pulling in about $2.66 million a year to a $600,000 annual salary.
• Weather Channel Companies named George Callard its new general counsel. The catch? This guy could be in for a bumpy ride after a former anchor/reporter filed suit against the company alleging new management did not let her take time off to serve in the Air Force Reserves.
• Susan G. Komen for the Cure named Ellen D. Willmott  as its new general counsel, the group announced Wednesday. Willmott comes to the the breast cancer charity organization from Save the Children USA.
• To get more in-house counsel news, sign up for our FREE monthly email newsletter, In-House Counsel. The newsletter is a compilation of The Daily Record’s coverage of in-house counsel news as well as job listings, movements within the industry and other resources. Click here to sign up today.
• Follow us on Twitter for the In-House news and discussion: @TDRInHouse
• Want the latest on who’s been hired, fired or moving and shaking in between? Head to our Movers and Shakers page to find out.
• For networking events and other happenings this week in Maryland, check out our calendar of events.
• Get the very latest updates from our law reporters on Twitter: @TDRKristi, @BenMook, @Steve_Lash
• Check out The Daily Record on Facebook.

Welcome back to the roundup. Ease into the week with some of the latest law links:

• This should be obvious, but one local lawyer says when when handling a social media crisis, don’t act like Anthony Weiner.
• An American lawyer and a professor celebrated the first public lesbian wedding in Nepal.
• What’s the best way to cross-examine defense medical experts? Why, use their own ethics code against them, of course.
• Isolating race bias in the workplace is difficult.
• Mirriam Seddiq rants on the latest inaction on immigration reform and the FBI’s new guidelines.
• NFL’s Mr. Irrelevant wins a $5.4 million default judgement.
• Supreme Court Justice Clarence Thomas (above) is drawing more attention to himself with what the New York Times calls an “ethically sensitive” friendship with a Dallas real estate magnate.

The use of Twitter in courtrooms is a topic near and dear to my heart.

Our Danny Jacobs was able to use Twitter to break the news of verdicts against ExxonMobil in Baltimore County Circuit Court, but tweeting was banned in Baltimore during then-Mayor Sheila Dixon’s corruption trials. And our “Judge on the Jury” columnist, retired Judge Dennis M. Sweeney, has written on the topic several times.

So, imagine my joy on reading this bit of news from the Associated Press: A judge in Connecticut has rejected a defense motion to ban courtroom tweets during a fatal home-invasion trial.

The defense team raised an interesting point, though. They claimed that, in a co-defendant’s trial, “sudden typing of tweets by reporters and spectators signaled to the jury what evidence observers believed was significant.”

In that other trial, the co-defendant was convicted and got the death penalty. Not that they’re blaming the tweets for that; just sayin’ what happened.

Personally, I find it hard to believe that a sudden burst of tweets could affect justice more than the gasps, laughter or any other response of spectators in the courtroom. Litigators? What say you?

“A Maryland newspaper.”

Really, The Wall Street Journal? You write about news The Daily Record broke, and you credit “a Maryland newspaper”?

What, your story ran over by a line so you had to cut out our name? Or maybe all your fact-checkers had the day off?

Or were you trying to be cute, since today’s article — “Anonymous Ladies and Gentlemen of the jury” — is, after all, about withholding names?

In the article, reporters Ashby Jones and Nathan Koppel use the trial of former Illinois governor Rod Blagojevich as a news hook to discuss the practice of withholding the names and addresses of jurors.

Read the rest of this entry »

I highly recommend that anyone interested in lawyers and social media read this article about why most law firms are doing an awful job with Twitter and how they can improve. Jordan Furlong makes an apt comparison between the just-for-personal-use kind of tweeters who post things like, “OMG, look at this hairball my cat just coughed up” (my wording, not his) and law firms that post nothing but news about themselves. He writes that after reviewing tons of big-firm and small-firm Twitter accounts, he has found that:

The firm’s Twitter feed is essentially a 140-character encapsulation and rebroadcast of its Media Page — and as a former member of the journalistic cabal, I can tell you that the Media Page is generally the most useless page on a law firm website, even (especially) for the media. These Twitter feeds assume that you, the reader, care exclusively about what the law firm and its lawyers are doing or saying.

Furlong proposes that firms supplement the non-stop us, us, us tweets with links that might be helpful to their clients. I also wonder if firms may want to consider encouraging their tech-savvy, personable lawyers to set up individual accounts and tweet about things that may be of particular interest to their clients and to other practitioners in the field. I see a few, but not many of these accounts; I suspect most large firms are weird about their attorneys tweeting.

HT: Above the Law.

On Monday, I had a cover story in Maryland Lawyer about an innovative and mildly controversial new program in Baltimore that will bring a service dog into child abuse forensic interviews and courtrooms. If you haven’t checked it out, please do, and make sure to watch the amazing audio slideshow accompanying it, created by our photographer Max Franz.

I got the idea for the story via Twitter, proving once again that the micro-blogging service is not (just) a time-waster. Here’s how it worked: a few weeks ago, one of the fine people I follow (I wish I could remember who) tweeted a link about how best to use dogs in the courtroom. It sounded pretty odd to me, which is often the hallmark of a great story.  I clicked on the link and got to a fact sheet hosted by the main site of Courthouse Dogs, a Seattle organization that promotes the use of dogs in the judicial system.

I called the group to find out more and asked whether anyone in Maryland was using a courthouse dog. Happily for this journalist, Baltimore had just gotten a dog, Kelly, only a few weeks before. I set up a meeting with Kelly and his human colleagues, and the article came together quickly after that. The Daily Record was able to bring you the story of Kelly the Baltimore courthouse dog before any other news outlet.

So there you have it, folks: Twitter is, in fact, useful.