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one of his Facebook friends.3 While the benefits to the police are clear, others are concerned with the potential for abuse. When asked about the new policies, Christopher Dunn, associate legal director for the New York Civil Liberties Union, told the Daily News that “Electronic undercover work is fine. But we worry about the ease with [sic] the police can use deceit on the Internet to monitor private communication.”
By William R. Aronin, Esq.
New Policy Allows NYPD to Use Fake Accounts to ‘Friend’ Suspects Recently, Police Commissioner Raymond Kelly issued a five-page memo detailing departmental policies regarding the use of social media when conducting investigations. While the memorandum itself is not publically available, The New York Daily News first reported1 on two of the more controversial aspects of the new rules. Investigators are now permitted to use aliases, and create fake social media accounts that they can then use to “friend” potential suspects. Additionally, they will be provided department-issued laptops and Internet connections that, supposedly, cannot be linked or traced back to the NYPD.
Many in the police department believe that monitoring social media can provide important information needed to combat violent crime. In fact, Bloomberg Businessweek reports2, that just last week, the NYPD decided to “double the size of its gang unit ... to combat teen violence fueled by dares and insults traded on social media.”
Law enforcement has long used the Internet to catch and prosecute criminals. In a recent LexisNexis Risk Solutions survey of 1,200 Federal, State, and Local officials, 67 percent believed that social media helps solve crimes more quickly. Moreover, a recent Southern District case held that a defendant had no reasonable expectation of privacy in his Facebook posts, and that the Government did not violate the Fourth Amendment by accessing the page through
Although approved by the NYPD’s new guidelines, this policy violates Facebook’s own terms of service, which allows users to create a pseudonym, but only after providing the service with the user’s real name. Recently, in an interview with CNN, Joe Sullivan, Facebook’s chief security officer explained that “It just undermines the integrity of our whole service if we allow people to use fake accounts.”4 Facebook and Judges Last month, a Florida State appellate court ruled that a Facebook friendship between judge and prosecutor, created a reasonable fear that a criminal defendant would not receive a fair trial, and disqualified the judge from presiding over the matter.5 This decision to disqualify was based primarily on
(See Social Media News on Page 10)
Volume 7 / Number 17
I N S I D E
Annual Dinner.................9 LinkedIn for the Job Search ...........................13 Pinterest Copyright Angst ...............................2 Social Media and the 'Like' ................................3 T A B L E O F C O N T E N T S Annual Dinner..................................9 Circulating Legal Articles................5 CLE Institute....................................4 Digital Training Center CLEs........10 Ethics Hotline ................................15 Legal Hacking................................12
NYCLA Provides Hurricane Assistance to Legal and Greater Community To aid members of the community left devastated in the wake of Hurricane Sandy, NYCLA is providing assistance to lawyers and members of the greater community through a variety of efforts to help hurricane victims get back on their feet immediately and in the long term. Hurricane Relief Drive NYCLA’s Young Lawyers’ Section is collecting donations of water, non perishable foods, batteries, and other items for those affected in receptacles in the lobby of its 14 Vesey Street headquarters between Church and Broadway. The association is also accepting donations, from members and the public, of flashlights; candles; lighters and matches; warm clothing in all sizes for adults and children including coats, hats, and boots; blankets; hand sanitizers; baby clothes and food, and baby formula; wipes; pet food; tampons; non electric can openers; toilet paper; paper towels; trash bags; cleaning supplies; and propane grills or camping
stoves. Drop off a donation today and help someone left devastated by the hurricane. Legal Counseling Program Expanded NYCLA is expanding its Legal Counseling Project to include insurance law to help the victims of Hurricane Sandy with insurance claims or coverage issues. The Project currently provides limited legal advice in the areas of landlord/tenant, consumer bankruptcy, employment and family law. NYCLA members in good standing, with at least 3 years Insurance Law experience who are interested in counseling clients affected by Hurricane Sandy, are invited to e-mail Lois Davis at email@example.com for more information. Office Share Program NYCLA is matching up lawyers with extra office space with lawyers who have been displaced from their offices due to the hurricane. Lawyers who have office space to share are invited to help fellow
lawyers who have been impacted by Hurricane Sandy and lawyers who are looking for temporary offices space are invited to contact Diana Lamb at firstname.lastname@example.org or 212 267 6646 with office location available or requested; availability (number of seats/desks/conference room available) or need (number of seats/desks conference rooms needed); amenities (computers, Internet, power, or other) available or needed; and instructions for how to be contacted. Assistance to Displaced Members NYCLA’s facilities, which include the Library and conference rooms, are available to NYCLA members who have been temporarily displaced from their offices. All members are invited to utilize the NYCLA Library facilities during operating hours to assist with work and to access the Internet. To reserve a meeting space, contact Diana Lamb at email@example.com or 212-267-6646.
Library Notes .................................10 LinkedIn for the Job Search ..........13 Message from Barbara Moses, NYCLA Foundation President ........6 Message from Stewart D. Aaron, NYCLA President............................3 Modern Post Road .........................11 Pinterest Copyright Angst................2 Recent Event Photos ........................8 Service of Process............................7 Social Media and the 'Like' .............3 Social Media and You ......................6 Social Media Content ......................2 Social Media Image .......................12 Social Media News ..........................1 Upcoming Events.............................9 What's Tweeting...............................9
November 2012 / The New York County Lawyer
Social media content: Who really owns your post, pin, tweet, or share? By Jason Tuttle, Esq.
The advent of social media online has challenged the way we think about intellectual property ownership. Previously, the digital media revolution and the widespread availability of personal computers allowed the general public to begin making and redistributing exact copies of digital media, from books to movies to music. The advent of social media, such as Facebook, Twitter, and Pinterest, have only further exacerbated these challenges. Each new social media outlet that appears attempts to re-define the genre and provides a unique twist. This has caused no end of legal headaches for those who produce, market, and distribute original content. The playing field for digital content delivery is constantly changing, and yet, with the vast amount of digital commerce, no one wants to miss the game.
Now, the booming popularity of social media outlets have also provided a newer, and much faster-moving, outlet for copyright infringement. The big advance with social media is that it turns the tables on users and puts them in a place where they are now the content creators. Every time a user uploads a post, pins an image, sends a tweet, or shares something online, he/she is adding to the aggregate social content. Many users just link to content created by someone else, but there are an increasing number of users who are actively creating and posting their own original content. Provided that the content users’ post is something new that was created, what rights do they legally retain?
By Jane Chuang, Esq.
As always, the legal answer is ‘it depends.’ Because intellectual property law analysis is such a fact-specific process, the best anyone can hope to provide is a general framework of where to begin. But the first step (and perhaps the least useful step) is to look at the terms of service for whatever outlet you are using. For instance, Twitter, Facebook, and Pinterest’s terms of service all indicate that users retain their rights to any content they post, except that the act of tweeting/posting/pinning grants each respective company a license to reproduce that content and re-broadcast it to its users until it is either removed from the service or for a ‘commercially reasonable amount of time.’ Much commentary has been wrung from the various terms of service documents offered by many of these companies, often while noting that the rights retained by the companies seem to overwhelm any rights retained by the users. But generally, users retain rights to their original content, but does grant a pretty broad license to whatever company they are posting at. But the next question is, what rights does a user actually have to begin with? Well, the second step is an analysis of intellectual property law to see if there are existing protections for the user’s content. For most people this means assessing if the content they are generating falls into the protections of copyright law. Brock Shinen has a thorough analysis of the difficulty you would have in copyrighting a Tweet at canyoucopyrightatweet.com, so I will simply direct you there, but the short of it is, most Tweets probably aren’t copyrightable. Similarly, most Facebook posts likely also fail to reach a threshold that would be required for copyright.
However, Twitter is increasingly being used to deliver content that is almost certainly does reach the copyright threshold, such as Jennifer Egan’s delivery of her short story, Black Box. This Pulitzer Prize winning author serialized a story through The New Yorker’s Twitter account over the course of nine days beginning in May 2012. Other authors are writing stories and poetry 140 characters at a time as well to fall within the Twitter limit. It seems likely that for at least some of these authors, a court could find a copyrightable work exists. Facebook and Google+ are moderately similar to the ‘traditional’ blog, and are in a sense, somewhat analogous to the traditional newspaper column. There are even a number of businesses now that will take your blog and print a number of posts together in book format, both for purely personal use or for resale. Thousands of blogs generate new original content on a regular basis and there is generally no question that this content can be protected by copyright law. As new as these various services are, they are somewhat more understood by the courts at this point, especially since police jurisdictions around the country have begun using these sites in criminal investigations. Content created through these services in these formats will still have to meet threshold requirements to gain copyright protections, but at least it seems generally accepted that they are capable of meeting those thresholds. Pinterest is one of the newer kids on the block as far as social media goes. Pinterest encourages users to upload, or ‘pin’ images to personal or public boards, and group these images along themes. Users can then share these image boards and re-pin images they like from the boards of others. Many
have commented on what they see as a looming (but as yet unrealized) copyright problem for Pinterest, in that many users frequently pin photos they encounter from various other websites, without regard for copyright ownership of those original images. But what happens when you are posting your own original images? As noted in the terms of service, Pinterest does retain certain rights to user-generated content, and does encourage the community of users to re-pin various images as often as they desire. So once a user starts pinning original content, he/she should not be surprised to see it turn up in the pin boards created by other users.
Overall, it seems that those who create original content for social media online will generally retain rights to their content, but will also typically be granting, at least for a limited period of time, a broad license to use the content to whatever service the content is being posted on. If you are a content generator, social media seems like it could be a great way to potentially get your foot in the door and start building a name for yourself, since these services encourage that content be shared with the community as a whole. On the other hand, if a content generator desires to retain more firm control over its work, it might be best not to deliver that content through social media platforms. It is one thing to maintain a social media presence for marketing purposes, but something else to deliver actual content through social media. Jason Tuttle, a NYCLA and Entertainment, Intellectual Property and Sports Section member, is a 2007 graduate of Franklin Pierce Law Center and has worked in New York City as an agency attorney for the Department of Homeless Services since 2008.
Why All the Copyright Angst Over Pinterest?
Just a few years after its launch, Pinterest has skyrocketed its way to becoming the third most-visited social networking site in the United States, after Facebook and Twitter.1 Pinterest allows users to “pin” their favorite images on the web in a virtual collage and share them with others, offering another way to sift through the enormous amount of information available on the Internet. Pinned content often links back to the original source—this has led Pinterest to become the top referral site for lifestyle, home décor and cooking magazines and websites.2 As Pinterest becomes more popular, its intellectual property policies have come under fire. First, artists and other content owners have raised concerns that their work is being copied when “pinned” and is used without authorization or attribution.3 Interestingly enough, Pinterest previously discouraged users from pinning their own work as self-promotion—the result being that users were encouraged to pin the work of others.
However, in response to some of the concerns raised, Pinterest revamped and clarified its policies. For one, users are encouraged to use their own content.4 For another, Pinterest has also provided content owners with code that prevents their works from being pinned, as well as “Pin It” buttons for content owners who are willing to allow their works to be pinned.5 In addition,
content owners now have a clear mechanism to take down any infringing works under Pinterest’s Copyright Policy.6 This policy tracks the requirements of the Digital Millennium Copyright Act of 1998’s (“DMCA”) safe harbor provisions, as Pinterest is taking the position that it is a “service provider” to protect itself from liability for copyright infringement.7
Second, users have raised concerns with Pinterest’s Terms of Service (“Terms”) and their potential liability under those terms.8 As with other social networking sites, Pinterest’s Terms make the user responsible for obtaining the appropriate permissions before pinning any images. The user is also responsible for indemnifying Pinterest for liability from pinning infringing work. Many users have the misconception that images on the Internet can be used as a fair use. A fair use defense, however, only applies if the use is “for purposes such as criticism, comment, news reporting, teaching . . ., scholarship, or research.”9And fair use is still a defense without an assured outcome—it depends on the circumstances of the use, including the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion of the work used, and the effect of the use on the potential market value of the work.10 Pinterest’s former Terms contained additional language that gave some users pause. For example, users granted Pinterest rights to “sell” the content that
they uploaded, potentially increasing their liability if the content was infringing. In addition, although users were encouraged to “repin” materials, the Terms did not contain a license provision to allow users to “pin” content already uploaded to Pinterest by others. These concerns were addressed with a revision of the Terms in April 2012 by deleting the word “sell” from the list of licensed rights and providing other users with a license to use uploaded content.11
While these steps go a long way to allay artists’ and users’ concerns, both artists and users should exercise caution to protect themselves from copyright concerns that cannot be addressed by Pinterest’s policies (which are drafted to protect Pinterest itself). For example, artists who want the added publicity and web traffic can add the Pin It button to allow users to pin their work. Artists who do not want their work pinned can add code supplied by Pinterest to their images to prevent them from being pinned, or post low-resolution images that contain attributions in the image (or watermarks). Users, on the other hand, can make sure that they only post their own content, or content featuring the Pin It button. Jane Chuang is a NYCLA and Entertainment, Intellectual Property, and Sports Section member, and is a partner at Lee Anav Chung LLP. She practices general commercial litigation, and advises on trademark, copyright
and media law issues.
1. Todd Wasserman, Pinterest is Now the No. 3 Social Network in the U.S. [STUDY], April 6, 2012, athttp://mashable.com/2012/04/06/pinterestnumber-3-social-network/ (based on total visits). 2. Lauren Indvik, Pinterest Becomes Top Traffic Driver for Women’s Magazines, February 26, 2012, athttp://mashable.com/2012/02/26/pinterestwomens-magazines/. 3. Beth J. Hayden, How Artists Can Harness the Power of Pinterest, February 27, 2012, at http://www.artbizblog.com /2012/02/haydenpinterest.html. 4. Steve Eder, In Shift, Pinterest Say toyou’re your Own Stuff, March 26, 2012, at http://online.wsj.com/article/SB1000142405270 2304177104577305832731077746.html. 5. Rachel Tarko Hudson (Sheppard Mullin), Companies Using Pinterest, Be Careful Not to Get Pricked, April 26, 2012, at http://www.socialmedialawupdate.com/2012/04/articles/socialmedia/companies-using-pinterest-be-carefulnot-to-get-pricked/. 6. Pinterest’s Copyright Policy, athttp://pinterest.com/about/copyright/. 7. iPub. L. No. 105-304, 112 Stat. 2860 (Oct. 28, 1998); 17 U.S.C. §512. 8. Why I Tearfully Deleted My Pinterest Inspiration Boards, February 24, 2012 athttp://ddkportraits.com/2012/02/why-i-tearfullydeleted-my-pinterest-inspiration-boards/. 9 See 17 U.S.C. § 107. 10 Seeid. 11. Manatt Phelps and Phillips, To Pin or Not to Pin... That is the Question, April 2012, athttp://www.crmxchange.com/column/legal/pin _pin/manettphelpsapril2012.asp.
November 2012 / The New York County Lawyer
MESSAGE FROM STEWART J. A ARON PRESIDENT OF THE NEW YORK COUNT Y L AW YERS ASSOCIATION lawyers undoubtedly will learn how to maximize the use of Twitter in their legal practices.
Social media has grown exponentially over the last few years, with more and more members of the legal community actively engaging on social media not only for personal use, but also for professional use. Like LinkedIn, Twitter can be a very useful tool in imparting information to your target audience to help accomplish career and business goals.
I joined Twitter to communicate with NYCLA’s members and others about NYCLA business and interesting legal developments. I started tweeting the day I became NYCLA President last year, and now have over 200 followers. To help build my following, I made an effort to share my Twitter handle with lawyers and others I met at NYCLA and other legalindustry events, and included it in communications that were disseminated.
I send out messages about NYCLA programs, legal issues that NYCLA is moni-
Stewart D. Aaron President, New York County Lawyers’ Association
toring, and other items of interest, and share photos as they happen with Twitpics. I follow other lawyers, journalists, bar associations, law schools, courts, and nonprofit legal organizations, and sometimes retweet content of those who I follow.
Lawyers looking to get their feet wet could tweet about interesting legal developments about which your clients are interested. The next generation of
This issue of the New York County Lawyer focuses on social media and covers this ever-changing medium from different angles. Learn about who really owns your post, pin, tweet, or share in our articles covering copyright issues and social media on page 2; using LinkedIn for the job search on page 13; and several more articles related to this “hot” topic.
Tweet me @NYCLAPres and share how you are using social media to connect with and engage the legal industry, build your practice, and enhance your career.
Stewart D. Aaron President New York County Lawyers’ Association
To speak or not: social media and the “like” button By Matthew D. Asbell, Esq. & Mannu Harnal
Should “liking” Romney’s Facebook page get Obama’s employees fired? The answer may depend on whether clicking the “like” button is protected speech under the Constitution. On April 24, 2012, the Eastern District Court of Virginia ruled that clicking on the “Like” button on Facebook is insufficient speech to merit constitutional protection under the First Amendment. Bland v. Roberts, 857 F. Supp. 2d 599, 604 (E.D. Va. 2012). The Court found that a public employee “liking” the opposing candidate’s Facebook page, while working in the incumbent sheriff’s department was not protected under the First Amendment. This ruling was highly criticized and raises the question now whether the court found the “like” button as insufficient speech strictly in the context of a retaliatory action by a government employer against an individual user.
Online social media platforms push the boundaries of speech by providing new and innovative ways for people to communicate, such as the Twitter “retweet” or the Facebook “Like” button. In 1996, in the landmark case Am. Civil Liberties Union v. Reno, 929 F. Supp. 824 (E.D. Pa. 1996), a unanimous Supreme Court specifically extended the First Amendment to written, visual and spoken expression posted on the Internet.
The right to free speech means that you are allowed to express yourself without interference or constraint by the government. The level of protection granted to online communication is based on the type of speech being used. Some speech is protected from being restricted even by private organizations. Non-commercial, artistic, symbolic, political, and speech concerning race, gender, and reli-
gion have the highest level of protection. Even non-verbal gestures can be protected speech. Texas v. Johnson, 491 U.S. 397, 404 (1989) (burning of American flag is symbolic speech protected by First Amendment). Hate and speech encouraging illegal activities are generally not protected. In between the extremes lies commercial speech, where the speaker is more likely to be engaged in commerce, where the intended audience is commercial or actual or potential consumers, and where the content of the message is commercial in character is given limited protection.
Federal Courts have also supported limitations on commercial speech to be constitutional, such as the Lanham Act. Semco, Inc. v. Amcast, Inc., 52 F.3d 108, 111-12 (6th Cir.1995). The Lanham Act governs trademarks and their use in commercial speech. Essentially “any expression embodying the use of a mark not in connection with the sale ... or advertising of any goods or services, and not likely to cause confusion, is outside the jurisdiction of the Lanham Act and necessarily protected by the First Amendment.” Taubman Co. v. Webfeats, 319 F.3d 770, 775 (6th Cir. 2003).
The Facebook “Like” button is used both commercially and non-commercially. Recently Facebook has filed multiple trademark applications to support its use of the “Like” button. Many of the design applications have been opposed but the word mark applications have already been allowed. Facebook’s use of the “Like” button is commercial in nature because it has the authority to show a user’s “like” as an endorsement and a form of advertising. Companies and groups use the button to aggregate user “likes” in order to show support for their product, service, or purpose on Facebook and drive traffic to their pages. Individual
users consider “liking” as a medium of expression.
In Bland, Facebook and the ACLU argued that using the Facebook “Like” button to express support for a political candidate is no different than putting a bumper sticker on your car, making a verbal public statement, or putting out a yard sign showing support for the candidate. Maybe the key difference is the level of effort, cost, or permanence associated with the action. Clicking a button on your computer takes minimal effort, is free of charge, and can be temporary in contrast to more enduring statements arising from a bumper sticker on your car or the greater effort of putting out a sign showing support on your lawn. The Internet is making it increasingly difficult to determine what rises to the level of constitutionally protected speech. The focus of the law could be on who makes the speech and for what purpose rather than whether it is speech. For now, Obama can, without violating his constitutional rights, fire his employees for simply “liking” Romney’s page. Matthew D. Asbell is a NYCLA member and Associate of Ladas & Parry LLP where he practices intellectual property law often related to matters in the Web 2.0 space. He has a diverse background ranging from medicine to information technology and is certified as a Social Media Strategist.
Mannu Harnal is a third year student at University of New Hampshire School of Law and a current trademarks intern at Ladas & Parry LLP. He has experience in the entertainment industry, copyrights, trademarks, licensing, and marketing, and is proficient in several languages.
COUNTY LAWYER Stewart D. Aaron President
Sophia J Gianacoplos Executive Director
Toni Valenti Director of Marketing and Membership Development
Ariella Greenbaum Editor Senior Communications and Social Media Manager
New York County Lawyer is published by Long Islander Newspapers under the auspices of the New York County Lawyers’ Association. For advertising information, call 631-427-7000. Mailing address: 149 Main Street, Huntington, NY 11743. Copyright © 2012 New York County Lawyers’ Association. All rights reserved. New York County Lawyers’ Association grants permission for articles and other material herein or portions thereof to be reproduced and distributed for educational or professional use through direct contact with clients, prospective clients, professional colleagues and students provided that such use shall not involve any matter for which payment (other than legal fees or tuition) is made and provided further that all reproductions include the name of the author of the article, the copyright notice(s) included in the original publication, and a notice indicating the name and date of the Association publication from which the reprint is made. Subscription rate: $10.00 per year for non-members New York County Lawyer is published monthly (except January and August) for $10 per year by New York County Lawyers’ Association, 14 Vesey Street, New York, NY 10007. Periodicals postage paid is mailed at New York, NY and additional mailing offices. POSTMASTER: Send address changes to: New York County Lawyer, 14 Vesey Street, New York, NY 10007-2992. USPS #022-995 ISSN: 1558-5786 $10.00 of membership dues is deducted for a one-year subscription to the New York County Lawyer.
Photo Credits Ariella Greenbaum Rick Kopstein Christopher Warren
November 2012 / The New York County Lawyer
Art Litigation and Dispute Resolution Institute Returns to the CLE Institute This November Join a faculty of experts from the bench, bar, academia, art galleries, insurance agencies, art consultants, government and non-profit organizations on November 16 for the 5th Annual Art Litigation and Dispute Resolution Institute. Learn about the most relevant issues in today’s art world, including how to deal with the ethical issues that arise.
The program will cover the following topics: • The Law and Business of Sculpture and Fine Art Multiples • Stewardship of Art Collections: What Lawyers Need to Know • The Law of Antiquities • The Arts on Capitol Hill • Trusts, Estates and Art: What Lawyers Need to Know
• Legal Issues Surrounding Art Galleries and Art Dealing
SAVE THE DATE: 1031 Tax Free Exchanges, Monday, December 3, 2012, 6-9 p.m.
NYCLA to Feature e-Discovery CLE Attend NYCLA’s upcoming evening CLE event and learn about some of the recent developments in the e-Discovery realm. Over the past few years the landscape for litigation has become increasingly complicated by the issues presented with e-Discovery. The Federal Courts Committee recognizing the importance of these issues has teamed-up with the Young Lawyers’ Section and the InHouse/Outside Counsel Committee to offer a program to review these important issues. The significance of E-Discovery can no longer be understated, as Judge Shira Scheindlin, from the SDNY, has said: “We used to say there’s e-discovery as if it was a subset of all discovery. But now there’s no other discovery.”
Hot Topics in E-Discovery, will take place on November 28 from 7-8:40 p.m. and attendees receive 2 MCLE credits. There will be a pre-CLE reception from 6:30-7 p.m. and a post-program networking Q&A from 8:40-9 p.m. The program will explore some of the developments in the NY State Courts, including covering the use of a new electronic discovery order; highlighting some of the recent important federal decisions, including a discussion of litigation holds; and the recent cases involving the hottest eDiscovery topic, Predictive Coding/Technology Assisted Review, particularly on the importance of cooperation between litigating parties in the eDiscovery Process.
Attend and gain great insight from prominent members of the bench and from practitioners whose practice area focuses on E-Discovery including Magistrate Judge Marilyn D. Go, from the E.D.N.Y.; Judge Carolyn E. Demarest, from the New York State Supreme Court, Commercial Division; Yoav M. Griver, a Partner at ZeichnerEllman& Krause LLP; and Daniel B. Garrie, a Partner and General Counsel for Law and Forensics LLC. The Moderator for the event will be Yitzy Nissenbaum, Chair of the E-Discovery Subcommittee for the Federal Courts Committee.
NYCLA’s CLE Institute now an Accredited Provider in New Jersey New York County Lawyers’ Association’s CLE Institute is currently certified as an Accredited Provider of continuing legal education in the State New Jersey. Courses qualifying for CLE credit in New Jersey will be so designated on the NYCLA website. Be sure to consult www.nycla.org for program details and program locations. Please note that Tuition Assistance is available for qualified attorneys for live programs offered by the CLE Institute. Check our website at www.nycla.org for more information and how to apply for Tuition Assistance. Check our website for course details, faculty, complete program descriptions and pricing. Be sure to check our website for a complete listing of programs.
November 2012 / The New York County Lawyer
CLE INSTITUTE November Programs NYS Obligations for Businesses Conducting Commerce on the Internet Tuesday, November 13, 2012, 6-9 p.m. 3 MCLE Credits 5th Annual Art Litigation and Dispute Resolution Practice Institute Friday, November 16, 2012; 8:45 a.m.-5 p.m. 7.5 MCLE Credits: Transitional and Non-transitional (also NJ)
Hot Topics in E-Discovery Wednesday, November 28, 2012; 6:30 p.m.-8:40 p.m. 2 MCLE Credits: 2 PP; Transitional and Non-transitional (also NJ) When Allegations of Child Sex Abuse Are Made within Matrimonial and Family Law Cases... How to Defend and How to Prosecute Wednesday, November 29, 2012: 9 a.m.1 p.m. 4 MCLE Credits: 2 PP; 2 Skills; Transitional and Non-transitional
New Jersey Bridge the Gap: A Program for Newly Admitted Attorneys Consecutive Fridays, November 30 and December 7, 2012; 9 a.m.-5 p.m. 15 NJ MCLE Credits in 5 of 9 specified practice areas; (also NY; breakdown tbd); transitional and non-transitional
December Programs Certified Guardian, Court Evaluator and Counsel for AIP Training:
Certification Program Approved by Office of Court Administration, Tuesday, December 4, 2012; 9 a.m.-5 p.m. Persuasive Speech: Incorporating the Techniques of a Broadway Actor into the Way You Practice Law, Wednesday, December 5, 2012; 6-7:45 p.m. The LIBOR Scandal – What it Means for The Legal Community, Investors, Traders and Borrowers, Thursday, December 6, 2012; 6-8:05 p.m.
How to Circulate Your Legal Article on the Internet By Melvin Dubinsky, Esq.
Producing legal writing, whether intended for clients or legal professionals, is an essential part of every lawyer’s marketing strategy. It is now easier than ever to distribute your writing by using the Internet to reach your target audience and win a reputation as a knowledgeable and competent attorney. Three common methods are to build following on Twitter, obtain referrals from blog authors, and to post the article in relevant LinkedIn groups.
Let’s look at each of these with a realworld example, an article that I wrote. It first appeared in tried-and-true printed form in a legal journal, The Practical Lawyer, in its August 2012 issue.
Twitter Maintaining a Twitter account takes time and commitment, but the process can be rewarding. The goal is to build a following among your colleagues by regularly ‘tweeting’ breaking news, articles and tips related to your practice areas. A tweet is a message that you post on your own Twitter-account profile.
Regular tweets that share useful and substantive information will enable you to build a reputation as a reliable and well-informed lawyer in your specialty. You can gain followers to your tweets by becoming a follower of other tweeters in your practice area. Hopefully each of them will reciprocate by becoming your follower and then they will view all of your tweets. In addition they may expand the reach of your tweets. ‘Retweeting’ occurs when your follower chooses to pass a tweet on to his or her own followers. Then the secondary recipients may want to become your followers as well. Sort of a legal pyramid-scheme.
Another way to gain followers is to take advantage of hashtags, which are keywords preceded by the pound sign. Other lawyers often search for these keywords on Twitter when looking for new accounts to follow, or for messages that are good-enough to retweet. Examples of hashtags are #immigration,
#copyright or #murder. Look around and see what hashtags attorneys in your field are using and incorporate them into your tweets. But you need to exercise restraint – Twitter limits the number of characters per tweet to 140, including hashtags. Too many of them will make your tweet look cluttered.
Once you have built up a following of readers that trust your Twitter feed, tweeting your own articles can give you name-recognition and influence in your field. The more followers that you have, and the better your reputation on Twitter, the more readers there will be for your article, and more retweeters of it too.
Here’s an example of how to write a tweet that publicizes a legal article. Recently The Practical Lawyer published my article entitled “Making The Most Of Graphics For Trial.” If I was to tweetabout this article, it would say: Learn how to make the most of #trial #graphics, read my ‘TPL’ article online in COLOR: dubinskytrialatty.com/article.html #evidence
Blogs For a more direct route to getting your article read by your target audience, reach out to blogs that cover the topics that your article discusses. Leave your request open-ended: ask whether the blogger is willing to accept and post your article, so that the blogger can decide what course of action feels comfortable for him or her. Some bloggers may be willing to write a short statement endorsing your article and provide a link to it. Others may want to use a link to your article to support an argument in their own blog-posting or may be willing to post your article through their social media accounts, such as Twitter or Facebook. Be prepared for a little quid pro quo, however, as some blog owners may ask that you post an article that he or she wrote in return for posting yours. A couple of responses to me went beyond that. One blogger, on the staff of a West Coast law school, asked me to write two book reviews. Each was
for a textbook on the subject of evidence at trial. After estimating how much time I could spare for that, and putting the flattery aside, I agreed to do one review. Another response was less intellectual and more commercial. The blogger sold presentation software for use at trials. He asked me to rewrite my article so that it emphasized his brand of software instead of the software that I had used and wrote about. But I declined and thereby lost a blog posting for my article.
LinkedIn Effectively using LinkedIn is more than just filling out your profile and accumulating professional connections. Within LinkedIn are various “groups,” individual pages where members post articles relevant to the group’s interests and engage in cross-discussion. Many of these groups are dedicated to legal topics and are populated by lawyers, law students and other legal professionals, including NYCLA’s LinkedIn group. A good way to obtain name recognition within a specific legal community is to post your article on the page of a group that is part of it. Target the groups that can benefit from your article. Other group members will use the posting as an opportunity to display their knowledge; firstly by commenting on it and then by adding their thoughts on the subject. This also enables you to gain feedback about your ideas, contentions and writing style. Groups dedicated to trial practice and presentation of evidence were the right fit for me.
A number of groups seemed to qualify. A quick glance will tell you that my article was too long for publication on a group’s page. Instead I sent those groups a preface about the article and a link to the article on my website. Parenthetically I had to use the same approach for posting my article to blogs.
A good preface was vital for LinkedIn and the blogs. One is needed to spark the reader’s interest in the content of your article. You may be able to draw on an editor’s preface-or-preview that was published with the printed version of your article, as I did. That was used
for a start. Then I completed the preface and sent it around with the link to my article. Here’s the first part of that preface, as another real-world example that may be useful to you: A trial attorney in New York City, like myself, is part of an increasingly computer-dependent and imagesaturated world. One aspect of that is the use of graphics during a trial. This has never been easier or more beneficial for a lawyer who is trying to prevail in court. Therefore my article presents actual examples from my trials to show that the use of demonstrative evidence in tort cases can sway jurors to decide in favor of a client or spur opposing counsel to offer a much higher amount for settlement.
The posting of my preface and link in the Trial Technology group spawned a lively discussion. Lawyers and graphics experts argued about the best program for displaying graphics as evidence during a trial. In turn I pointed out how and why PowerPoint was right for the trial of my case, as reflected in a great result. One graphics expert posted a compliment about the way that I had used graphics for trials. With her approval, I put those remarks on my website. Overall seven different groups accepted my posting, and put my preface-and-link onto their respective pages. Conclusion By using the Internet, your legal article can reach a much larger collection of readers than it can in a conventional printed journal. Tweeting, contacting bloggers, and posting to LinkedIn groups are sure ways to maximize the impact of your article and to enhance your professional status.
Melvin Dubinksy is a NYCLA and Cyberspace Law Committee member. He has taught CLE courses at NYCLA on using graphic evidence at trials and also received mention in New York magazine’s 2011 annual survey of NYC litigators, named the trial lawyer who gained the second highest award in an intentional tort case.
November 2012 / The New York County Lawyer
MESSAGE FROM BARBARA MOSES PRESIDENT OF THE NYCL A FOUNDATION Dear Friends: In his 1901 Thanksgiving Proclamation, Theodore Roosevelt wrote, “Let us remember that, as much has been given us, much will be expected from us, and that true homage comes from the heart as well as from the lips, and shows itself in deeds.” This Thanksgiving, consider joining NYCLA in its continued commitment to public service and support for those in need. NYCLA provides pro bono services to low-income New Yorkers, civics education programs that many school districts can no longer afford, fellowships for young public interest attorneys, and stipended judicial internships for talented minority law students—not to mention no-cost or low-cost programs and benefits for NYCLA members struggling in a difficult legal economy. As you know, your dues do not cover all of NYCLA’s programs and services. We depend on your contributions (made to the NYCLA Foundation, which is recognized by the IRS as a 501(c)(3) organization) to carry
By Candice S. Cook
out the programs that make us proud to be members of NYCLA. Did you know that NYCLA provided 2550 hours of pro bono legal service last year? Although our tremendous pro bono volunteers donated their time, the program cost approximately $61 for each hour of direct client service provided. Perhaps you have been meaning to take a pro bono matter yourself but never quite got around to it? You could perform a comparable service by donating the cash equivalent! A gift of $500 would provide a day’s worth of pro bono legal services.
Were you aware of the tremendous resources of the NYCLA Library? NYCLA makes a broad array of primary and secondary research materials available to members — without charge — thus providing solo practitioners and small firms with resources they might otherwise be unable to afford. In addition, NYCLA’s professional librarians provide sophisticated research assistance to members on request, often identifying and locating materials that even the best-equipped law firm libraries cannot provide. A $1,000 gift would cover the cost of one of the new library computers that NYCLA members use to access our electronic databases. And while a paperless library may be in our future, the library of today still stocks essential texts — from Kurzban on Immigration Law to Loss on Securities Regulation — that are not easily obtainable online. A donation of $1500 would help ensure that these texts are there for you, or your colleagues, when you need them! You can make donations in these
amounts—or in any amount you choose—by going to www.nycla.org and clicking on “Giving to NYCLA.” You can also mail a check, payable to “NYCLA Foundation,” to NYCLA Foundation, 14 Vesey Street, New York, NY 10007. We are grateful for every contribution, and are pleased to say “thank you” with a selection of DVDs, books, prints, and other gifts described on our web site. Since the NYCLA Foundation is recognized by the IRS as a 501(c)(3) organization, gifts are deductible to the extent provided by law. NYCLA needs both your support and your ideas. Please do not hesitate to contact me with suggestions for fundraising or related topics. You can reach me at firstname.lastname@example.org. Sincerely,
Barbara Moses President of the NYCLA Foundation
Social Media and You: A Few Things Every Practitioner Should Know About The New Media Landscape
Let’s be honest. “New Media” is no longer new and the once popular belief that attorneys could avoid this “trendy” landscape has all but disappeared. Facebook is no longer reserved for college kids in dorm rooms and blogging is not just for wannabe authors seeking to gain attention. Facebook and blogs along with several other mediums like LinkedIn, Pinterest, Twitter, bitly, Instagram, Tumblr, and now QR are a part of the business lexicon. It remains important for attorneys to not only be proactive in their knowledge of these mediums, but also well-informed about how these mediums are used (by their employees and clients) and the effect that such uses can have on their practices and cases. More importantly, it is crucial for firms to be able to direct clients on the best practices for handling social media and to also make certain to have appropriate employee rules and procedures in house as well. We are all comfortable listening to cautionary tales about social media, but no one wants to become that cautionary tale. Social media is now a mainstay and the sooner your organization is prepared for its incorporation into the fabric of your business model the better off you and your clients will be.
If you are hesitant to get into the nuts and bolts of social media, I understand and you are not alone. Despite the prevalence of new media and social networks in the personal lives of their employees, many law firms — potentially to their detriment — have chosen to ignore the impact social networks will have on their firms, their branding, their clients, their business development, and their execution of deals and litigation on behalf of their clients. The reality is that the field of social media is ever-changing, has become a part of society’s daily life, and is not going anywhere. Take a closer look at commercials and you will likely see the small F, a small bird, and a red P somewhere in the corner of your television screen. The symbols are an invita-
tion for viewers to follow those products on Facebook, Twitter, and Pinterest.
The integration of social media into our lives does not stop there. Santa Clara University Law School has allowed students to post admissions questions to an avatar1; a few years ago an Australian court came down with a stunning decision to allow a party to a default judgment to be served on Facebook2; and some federal judges permit live blogging from the courtroom. In fact, the ABA Journal covered a Florida felony gun case where jurors were texting during deliberations and the prosecutor in the case posted information on Facebook about the trial.3 And if you represent business clients, most companies run contests where winners are invited to “like” them and engage with them via one (or in many cases all) of these social media tools. Indeed, “liking” an item on Facebook took on new meaning a few short months ago when a judge in Virginia ruled that “liking” something on Facebook was not protected speech. If law firms and practitioners were waiting for the day that new media and social networks would affect the practice of law—wait no more—the time has come.
Social Media Players: Facebook, Twitter, LinkedIn, Pinterest, QR, and Blogs To understand the fixation and interest in social media networks, one must first recognize the players. While an abundance of social networking options exist for the practitioner, this article intends to briefly introduce you to six: Facebook, Twitter, LinkedIn, Pinterest, QR& Blogging. Facebook Facebook, the brainchild of Mark Zuckerberg, remains the king of social networking — even with its recent less than stellar IPO. Boasting an excess of 955 million active users, it has attracted an almost cult following that has made it the topic of conversation and news leads around the world.4 Quite simply,
Facebook is a free social networking tool that allows its users to network based on a variety of parameters (city, work, educational background, and mutual friends) and is accessible to anyone 13 years of age or older. While Facebook may have begun as a social tool for individuals, the appeal of the concept and attraction for businesses has been widespread. AT&T, Whole Foods, Starbucks, Target, Burberry, Subway (to name a few) and over 2/3 of small business owners can all be found with official pages on Facebook.
Twitter Twitter can be described as the less verbose Facebook.5 Twitter, with 140 million active users, is a network that allows you to utilize 140 characters (per post) to post text messages, known as tweets, to the Internet. The community can then “follow” the poster similar to the way a community follows a blogger’s posts in a continuous or patterned methodology. Moreover, what Twitter lacks in mass, it may very well pick up in influence. Pop culture has embraced this social media tool and the results have been noteworthy. In 2008, American student James Karl Buck set in motion the wheels of justice that led to his release from an Egyptian jail with a one word tweet“arrested”-from his cell phone which resulted in a massive effort from his Twitter community to secure him legal representation, a translator, and ultimately his freedom. Twitter users trapped in the Oberoi Hotel after the 2008 Mumbai attacks chronicled the chaos to the outside world using tweets that were heavily relied upon by news outlets. And in 2009, before “traditional media” could upload stories to their respective web pages or even knew what had occurred, Twitter users were reporting on the US Airways plane that landed in New York’s Hudson River and posting images on the Twitpic6 feature of Twitter. Much like Facebook, Twitter has allowed its users to intervene in potentially deadly situations. In April 2009, actress Demi Moore’s Twitter followers helped avert a possible suicide by
a California woman when they traced the suicidal poster’s location to San Jose and contacted the police there warning them of her threats to commit suicide.7 ESPN allows viewers to tweet their sports questions and comments and People.com keeps celebrities’ Twitter feeds rolling live on its website. Today, those in the public spotlight recognize the power in 140 characters and everyone from President Barack Obama to Presidential Candidate Mitt Romney maintains a Twitter account.
Like Facebook, Twitter may have begun as a social tool for individuals, but now the appeal of the concept and attraction for businesses have become widespread. Southwest Airlines, Wachovia, GM, and JetBlue, among a plethora of others, can all be found on Twitter. In fact, Jet Blue utilizes a scanning tool that keeps tabs on what Twitter users say about it, illustrating corporations’ realization and acknowledgment of the power of social networking outlets and its potential influence on its brands.8 And though you may not feel that 140 character messages are worthy of consideration, the Library of Congress begs to differ. In April 2010, it was announced that the Library of Congress would archive the collected works of Twitter citing Twitter’s “immense impact on culture and history.”9 LinkedIn LinkedIn is a social media tool that aims to do exactly what the name describes— to link its users in to one another via the user’s professional peer group. Unlike Facebook and Twitter, the success of LinkedIn is not so much about status updates (though the platform does allow for them), rather LinkedIn focuses on who you are as a professional and who you know or are ‘linked to.’ Since its inception, LinkedIn has grown into a strong tool for recruiters and is a standard go-to for individuals seeking to expand their networking outside of the exchange of business cards.
(See New Media Landscape on page 14)
November 2012 / The New York County Lawyer
Service of Process in the Digital Age By Robert Silversmith, Esq.
New statutory and regulatory requirements relating to process servers in New York City have been enacted and are intended to regulate the increased prevalence of sewer service. In May 2012, the Civil Court Practice Section, chaired by Hon. David Cohen, held a CLE course at NYCLA to discuss and answer questions related to the new statute and regulations. In May 2012, the Civil Court Practice Section, Chaired by Hon. David Cohen held a CLE course at NYCLA to discuss and answer questions related to the new statute and regulations.
Department of Consumer Affairs Perspective Local Law 7 of 2010 was enacted by the City Council. A majority of the new statutory provisions took effect October 11, 2010. The Department of Consumer Affairs (DCA) issued new regulations which took effect as of November 12, 2011. The law now separates the current license category into two separate types of licenses: one for process servers and one for process serving agencies. Sanford Cohen and Marla Tepper, of DCA, discussed the new law. The law enhances the responsibility of the agencies in overseeing process servers, including enhanced record keeping, education and testing. Process servers must now pass a mandatory examination. An individual process server must post a bond of $10,000.00, or alternatively, upon being turned down twice by a bonding company, deposit not less than $1,000.00 into a trust fund established by DCA. A process server agency is required to post a surety bond of $100,000.00. The process server agency may not distrib-
ute cases to a process server who is not licensed, not bonded and who does not display appropriate integrity, or has been found to have not complied with the rules.
The agencies must provide DCA with written compliance regarding supervision of the individual process servers, and provide complete monthly reports as to accuracy of records. The agencies must report to the Department when their process servers are disciplined. These reports must be made available upon request. Each month, on a date randomly picked by the Department, the agencies must conduct a review of their process serving records, for that day. The intention is to encourage the agencies to follow the law every day.
A compliance plan must be filed with the Department stating the names of the individual process servers. The agencies must notify the Department within days of hiring or discharging process servers. Electronic records must be kept for seven years. These are less voluminous than paper for purposes of auditing. New rules require process servers to utilize a third party organization to maintain the records. All hearings scheduled in the courts of New York must be reported, as well as oral or written notices of a traverse scheduled, within ten days, and the result of the traverse. The individual process server must provide the name of the agency he or she is working for, as well as the name of agencies the process server has accepted assignments from over the last two years. The log must include the names and license of the agencies giving process. A new cause of action has been created relating to process servers who are not in compliance with the Administrative Code. This can lead to compensatory and punitive damages, and attorneys’ fees.
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A process server must maintain a logbook. The process server must also maintain a copy of every Affidavit of Service for at least seven years in either electronic or paper form. There are three ways to keep a log: (1) scan the logbook within one (1) business day of the last event in the logbook; (2) save to a portable media device one time per week; and (3) maintain two copies at different locations. In the alternative, maintain the log on a spreadsheet to be completed within two (2) business days. Once per week, this should be copied as to two separate write-once media devices. One of the media devices must be stored offsite, or alternatively, the process server should daily upload data to a provider and maintained on spreadsheets. The data must be secured so that it cannot be edited once it is uploaded.
The most technologically intriguing requirement is the provision that process servers carry and operate an electronic device that records GPS locations while serving process. The process server must carry and operate an electronic mobile device, such as a mobile telephone or a personal digital assistant that shows the global positioning system, and records the location of process, including date and time. The record must be automatically transmitted to an independent third party contractor, for electronic storage.
The process server must provide the name of the third party contractor at the time of renewal of the license or within two (2) days of any change in the contractor. DCA must be provided the data upon request and the data must be also available by subpoena.
The Process Server Perspective At the recent CLE course, Lawrence Yellon
and Robert Gillis spoke from the perspective of the process server. Process servers have had some difficulty in learning and adapting to the new technology. Some of the older process servers have left the business. Lawrence Yellon noted that, in New York City, there were 1,850 process servers as of February 2012, prior to DCA’s renewal period. As of May 15, 2012, there were 768 process servers, a 60-percent reduction. Many process servers did not renew because they could not pass the mandatory exam, or could not overcome the technological learning curve. Many are older or did part-time process serving. A few could not meet the bonding requirements, or chose not to pay into the Trust Fund. There has likewise been a 30-percent reduction in process serving agencies. Several agencies have sold their business. Some cannot qualify for the $100,000.00 bond. For agencies, the regulations do not provide for an alternative payment into Trust. Notably, process servers outside of New York City can use an agency in New York and some have moved out of the city. As time goes by, process servers are adapting. The Perspective of the Bar The Plaintiffs’/Petitioners’ attorney, Glenn Spiegel and the Defendants’/ Respondents’ attorney, David Rozenholc, agreed that the core analysis of traverses is unchanged as traverses are largely decided on the edges. The GPS system will substantiate whether the process server has been to the location. However, traverse hearings are determined by whether service was properly effectuated, the correct words spoken, the appropriate person served. Glenn Spiegel noted the legislation is intended as a shield to sewer service, but
(See Service of Process on Page 14)
November 2012 / The New York County Lawyer
RECENT EVENTS Young Lawyers Gather at Oktoberfest-Themed Networking Event On October 9, lawyers gathered to learn the do’s and don’ts of networking while mingling and enjoying Oktoberfestthemed drinks and hors d’oeuvres at this exclusive members-only event hosted by the Young Lawyers’ Section and sponsored by Emerge212 and Balls Vodka.
Family Court and Child Welfare Committee Hosts Annual Nanette Dembitz Lecture On October 4, NYCLA’s Family Court and Child Welfare Committee, chaired by W. Brad Jarman (left) and Jennifer L. Brillante-Weaver (right), welcomed a panel of experts who spoke about the Close to Home Initiative. Recently enacted to reserve secure detention facilities for youth who have committed the most serious offenses, the initiative allows for most youth involved in the juvenile justice system to receive services and/or limited secure and non-secure placements near their own community. Stephanie Gendell (second from left), Associate Executive Director for Policy and Public Affairs, Citizens Committee for Children, moderated the panel which included Vincent N. Schiraldi (third from left), Commissioner of the NYC Department of Probation; Hon. Monica Drinane (fourth from left), Supervising Judge of Bronx County Family Court; Tamara Steckler (fourth from right), Attorney-in-Charge, The Legal Aid Society Juvenile Rights Practice; Michael Corriero (third from right), Executive Director and Founder of the New York Center for Juvenile Justice; and Ronald Richter (second from right), Commissioner of the Administration for Children’s Services.
Follow NYCLA on Facebook for the latest event photos: facebook.com/NYCLAssoc
November 2012 / The New York County Lawyer
UPCOMING EVENTS All events, unless otherwise noted, will be held at NYCLA Home of Law, 14 Vesey Street. Visit the Association’s website, nycla.org for more details, schedule changes and additions, and to R.S.V.P. for events, which are subject to change.
Civil Court Pro Se Debtor Assistance and CLARO Program Training Wednesday, November 14 - 6-9 p.m. Queens County Bar Association, 90-35 148th Street, Jamaica, New York.
Hosted by the The Civil Legal Advice and Resource Office (CLARO) Program Partners, this training is free to those who volunteer for six total hours with CLARO— free, weekly walk-in clinic that provides limited legal advice to pro se litigants with consumer debt matters in the New York Civil Courts—by June 30, 2013. Contact Lois Davis at firstname.lastname@example.org or 212-2676646 x217 to register. In Chambers with Hon. Richard J. Sullivan Thursday, November 15 - 5:30 p.m.
Sponsored by NYCLA’s Young Lawyers’ Section “In Chambers” with Hon. Richard J. Sullivan, U.S. District Court, SDNY
Book Signing Monday, November 19 - 6 p.m. Meet Federal District Court Judge Frederic Block, author of the recently published book, Disrobed: An Inside Look at the Life and Work of a Federal Trial Judge. Gain a behind-the-scenes perspective on why he wrote the book, ethical considerations for judges writing books, hear excerpts from
Disrobed, and more at this special event. Bring your own copy of Disrobed and have it signed by Judge Block
98th Annual Dinner: Celebrating LGBT Equality Tuesday, December 11 - Reception-6:30 p.m.; Dinner-7:30 p.m.; Waldorf-Astoria Keynote speaker: Eric Schneiderman, New York State Attorney General. Welcome Remarks, Christine Quinn, New York City Council Speaker.
98th Annual Dinner Celebrating LGBT Equality and Honoring Corporations and Law Firms that Have Demonstrated a Commitment to LGBT Equality On Tuesday, December 11 in the Grand Ballroom of the Waldorf-Astoria, the New York County Lawyers’ Association’s black tie 98th Annual Dinner will celebrate LGBT equality and will honor corporations and law firms that have demonstrated a commitment to LGBT equality. A reception will take place at 6:30 p.m. and dinner at 7:30 p.m. NYCLA’s Annual Dinner is co-chaired by former NYCLA President Robert L. Haig, Esq. and Michele Coleman Mayes, Esq.
New York State Attorney General, Eric T. Schneiderman, will give keynote remarks. Elected the 65th Attorney General of New York State on November 2, 2010, as Attorney General, Schneiderman is the highest ranking law enforcement officer for the State, responsible for representing New York and its residents in legal matters. He has worked to restore the public’s faith in its public and private sector institutions by focusing on areas including public integrity, economic justice, social justice and environmental protection.
Christine C. Quinn, New York City Council Speaker, will be presenting Welcome Remarks at the Dinner. She has established herself as a fighter for policies and services that are critical to the lives of New Yorkers. She began her career in public service as a housing organizer, helping low-income tenants stay in their homes and protecting affordable housing. As the director of the Gay & Lesbian Anti-Violence Project, Quinn worked closely with the NYPD against hate crimes. Since 1999, she has served Manhattan’s lower west side in the City Council. Elected Speaker in 2006, Quinn has negotiated on-time, balanced City budgets, reducing government spending, and preventing firehouse closings, teacher layoffs, and cuts to key services.
The 2012 William Nelson Cromwell Award was established in 1964 under NYCLA President Leo Gottlieb, partner at Cleary Gottlieb Steen & Hamilton. This award is conferred in honor of William Nelson Cromwell, one of NYCLA’s earliest and most esteemed leaders, for “unselfish service to the profession and the community.” Mr. Cromwell’s dedication to public service
was renowned. This year’s Honoree is Roberta A. Kaplan, Partner, Paul, Weiss, Rifkind, Wharton & Garrison LLP. A partner in the Litigation Department, Kaplan has been described in a profile in Lawdragon as a “pressure junkie” who “thrives on looking at the big picture” whether “in the gay-marriage legal fight or high-profile corporate scandals.” Kaplan was chosen by The National Law Journal as one of the top “40 Under 40” lawyers in the United States, as a New York “Super Lawyer,” and as one of the 500 leading litigators in the United States.
The 2012 Boris Kostelanetz President’s Medal was established in honor of Boris Kostelanetz (1911-2006), the 33rd president of the New York County Lawyers’ Association and a founding partner of Kostelanetz & Fink, LLP. The Medal is conferred upon a NYCLA member whose record of dedication and service to the Association and legal profession comport with the highest standards. This year’s honoree is Sue C. Jacobs, Goodman & Jacobs LLP. Jacobs founded Goodman & Jacobs with Judith Goodman in 1992. The firm represents parties in all aspects of insurance disputes, including coverage, defense and procedural isues. Prior to starting the firm, Jacobs was a partner at what was then known as Stiff Rosen & Parker PC and its predecessor firms. An active member of NYCLA, Jacobs has been a member of the Board of Directors and Executive Committee, and has held the position of Treasurer. She has been a
Roberta A. Kaplan
NYCLA delegate to the NYSBA House of Delegates, has chaired the Insurance and Professional Liability Committees and speaks frequently at NYCLA CLE programs about professional liability and starting a firm. Jacobs holds a master’s
degree in Labor Economics from American University and a J.D. from Pace University School of Law. Reserve your space at this very special
10 November 2012 / The New York County Lawyer
LIBRARY NOTES To make suggestions about book, ebook or database purchases, please contact Dan Jordan, Director of Library Services, at email@example.com or at 212-267-6646, x201.
The last Library Notes column discussed Blawgs, legal blogs, their usefulness and how to find the blawgs that would be of interest to you and your practice. Other source of useful information to practitioners are the various centers, institutes and programs offered and supported by Law Schools throughout the United States.
As an example, Stanford Law School supports numerous “Programs and Centers” including the following: Stanford Constitutional Law Center; Stanford Criminal Justice Center (SCJC); Environmental and Natural Resources Law & Policy Program (ENRLP); Steyer Taylor Center for Energy Policy and
Finance, Afghanistan Legal Education Project; Bhutan Law and Policy Project; Iraq Legal Education Initiative; Securities Class Action Clearinghouse (SCAC); and many more including the Center for Internet and Society.
The Center for Internet and Society at Stanford Law School http://cyberlaw.stanford.edu/about/people Founded in 2000 by Lawrence Lessig, this is a public interest technology law and policy program. The Stanford Law School website states that “CIS brings together scholars, academics, legislators, students, programmers, security researchers and scientists to study the interaction of new technologies and the law and to examine how the synergy between the two can either promote or harm public goods like free speech, innovation, privacy, public commons, diversity, and scientific inquiry. CIS strives to improve both technology and
law, encouraging decision makers to design both as a means to further democratic values.
CIS provides law students and the general public with educational resources and analyses of policy issues arising at the intersection of law, technology and the public interest. Through the Fair Use Project and the Cyberlaw Clinic, CIS also provides legal representation to clients in matters that raise important issues of free expression, civil rights and technology. CIS also sponsors a range of public events including a speakers series, conferences and workshops.” The CIS has four focus areas: Architecture & Public Policy, Copyright and Fair Use, Privacy, and Robotics.
CIS Blog has had numerous entries concerning Robotics, most recently two concerning legal implications of domestic drone surveillance practice and a report on the Future of Road Vehicle Automation. The Robotics focus area has also supported three academic articles since 2010, all written by Ryan Calo; has been mentioned in the press repeatedly; stages events at Stanford and issues multimedia items in this area of interest.
Is there a Law School supported Center, Institute and Program in your area of interest? Please contact firstname.lastname@example.org for assistance in finding such an entity that would be of interest to you.
Davis, Mark. Solicitor General Bullitt: The life of William Marshall Bullitt. Crescent Hill Books: Louisville, KY, 2011.
Looking at the CIS Robotics focus area we see that it supports one Resident Fellow and three affiliate scholars. The
Digital Research Center CLE Programs
Unless otherwise noted, courses are free and open to the public. Register at nycla.org. Questions? Contact Irina Chopinova at email@example.com or 212-267-6646 x203.
Westlaw: Basic November 7 – 10-11 a.m. 1 MCLE Credit: 1 Skills; Transitional
Westlaw: Securities Law Research November 7 - 11:30 a.m.-12:30 p.m. 1 MCLE Credit: 1 Skills; Transitional Lexis: I November 9 – 10:30 – 11:30 a.m. 1 MCLE Credit: 1 Skills; Transitional
Lexis For Microsoft Office November 9 – 12-1 p.m. 1 MCLE Credit: 1 Skills; Transitional
Social Media News (Continued from page 1)
a 2009 opinion of the Florida State Judicial Ethics Advisory Committee6, which advised judges to avoid social media friendships with attorneys who have, or may, appear before them. The Committee’s rationale, which the Court cited, was that such friendships between judges and lawyers are public and “reasonably conveys to others the impression that these lawyer ‘friends’ are in a special position to influence the judge.”
Even in 2009, the Florida Advisory Opinion faced criticism from the legal community. Interviewed by The New York Times7, Stephen Gillers, professor of professional responsibility at NYU Law, was quoted as saying of the Florida opinion that “In my view, they are being hypersensitive.” Although not directly quoted, the Times also attributed Professor Gillers with the sentiment that the Opinion may have been the result of a generational gap on the panel. New York’s Advisory Committee on Judicial
Lexis: II November 9 - 1:30 - 2:30 p.m. 1 MCLE Credit: 1 Skills; Transitional
Westlaw: Intermediate November 14 - 1:30 - 2:30 p.m. 1 MCLE Credit: 1 Skills; Transitional
Westlaw: Insurance Law November 14 – 3 - 4 p.m. 1 MCLE Credit: 1 Skills; Transitional
Using Bloomberglaw.com for Litigation November 15 - 10-10:50 a.m. 1 MCLE Credit: 1 Skills; Transitional (Also NJ)
Using Bloomberglaw.com for a Corporate Transactional Practice November 15 - 11:05 - 11:55 a.m. 1 MCLE Credit: 1 Skills; Transitional (Also NJ) Ethics has also released an Opinion on the issue of judges and social media. In Opinion 08-176, the committee reasoned that judges may use social networking sites, so long as they are careful to not create an appearance of impropriety. Although not banning the practice, the committee did explicitly warn judges to be “mindful of the appearance created when he/she establishes a connection with an attorney.” It also left open the question of whether such connection rose to the “level of a close social relationship requiring disclosure and/or recusal.”
Mistrial Over Lawyer’s Facebook Post A mistrial was declared after a MiamiDade Public Defender snapped a photo of her client’s leopard-print underwear, and posted it to Facebook.
The Miami Herald first reported8 on the story of FerminRecalde, a defendant on trial for murder. “Recalde’s family brought him a bag of fresh clothes to wear during trial. When Miami-Dade corrections officers lifted up the pieces for a routine inspection, Recalde’s public defender Anya Cintron Stern snapped a photo of Recalde’s
U.S. Bankruptcy Court Electronic Case Filing System November 28 – 10 a.m.-12:30 p.m. 2.5 MCLE Credits: 2.5 Skills; Transitional (Also NJ) Member: $65 Non-member: $85 Non-legal Staff: $35
Westlaw: Advanced December 4 – 10-11 a.m. 1 MCLE Credit: 1 Skills; Transitional
Westlaw: Public Record Research December 4 - 11:30 a.m.-12:30 p.m. 1 MCLE Credit: 1 Skills; Transitional
Lexis: I December 5 – 10:30 a.m. – 11:30 p.m. 1 MCLE Credit: 1 Skills; Transitional
briefs with her cellphone, witnesses said.”
“While on break, the 31-year-old lawyer posted the photo on her personal Facebook page with a caption suggesting the client’s family believed the underwear was ‘proper attire for trial.’”
After the post was discovered, the presiding judge declared a mistrial, and the Public Defender’s office terminated Cintron Stern.
This story serves as a valuable reminder for all attorneys. Although most would never consider posting a disparaging comment about a client on a publicly-viewed social media site, it must be remembered that once something is put online, the poster has lost all control over it. In this case, the photo was actually posted to Cintron Stern’s private Facebook account, and her privacy settings made it viewable only to her friends. Once posted, however, one of those friends informed the presiding judge. Similarly, a “joke” sent via a private email, could easily find its way into the Law Journal.
Lexis: Litigation December 5 – 12:00 – 1:00 p.m. 1 MCLE Credit: 1 Skills; Transitional Lexis: Expert Witness December 5 - 1:30 - 2:30 p.m. 1 MCLE Credit: 1 Skills; Transitional
Westlaw: Basic December 18 - 1:30 - 2:30 p.m. 1 MCLE Credit: 1 Skills; Transitional
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U.S. Bankruptcy Court Electronic Case Filing System December 19 – 10 a.m.-12:30 p.m. 2.5 MCLE Credits: 2.5 Skills; Transitional (Also NJ) Member: $65 Non-member: $85 Non-legal Staff: $35 William R. Aronin, Esq., a NYCLA and Cyberspace Law Committee member, is an Associate with Schwartzapfel Lawyers, P.C. where he practices personal injury, disability and workers compensation law. He is a graduate of Brooklyn Law School. He can be reached at firstname.lastname@example.org.
1. Rocco Parascandola, New York Police Dept. issues first rules for use of social media during investigations., N.Y. Daily News, Sept. 11, 2012. 2. Tom Hays, NYPD to boost gang unit over social media violence., Bloomberg Businessweek, Oct. 2, 2012. 3. US v. Meregildo, 11 Cr. 576 (WHP) (S.D.N.Y. Aug 10. 2012). 4. Heather Kelly, Police embrace social media as a crime-fighting tool., CNN, Aug. 30, 2012. 5. Domville v. Florida, No. 4D12-556 (Fl. Ct. App., Sept. 5 2012). 6. Fla. JEAC Op. 2009-20 (Nov. 17, 2009). 7. John Schwartz, For Judges on Facebook, Friendship Has Limits., N.Y. Times (December 11, 2009). 8. David Ovalle, Lawyer’s Facebook photo causes mistrial in Miami-Dade murder case., The Miami Herald, Sept. 13, 2012.
November 2012 / The New York County Lawyer 11
The Internet as the Modern “Post Road”: The Regulation of Bandwidth Meets the First Amendment By Andrew L. Kalloch, Esq.
On October 8, 2000, then-Senate candidates Hillary Clinton and Rick Lazio were locked in a heated debate, when Moderator Marcia Kramer of WCBS-TV asked where the candidates stood on federal bill 602P. The bill, Kramer explained, would impose a tax of five cents per email, with the revenues dedicated to the Postal Service. Both candidates quickly denounced the bill, echoing the House of Representatives, which five months earlier had passed a bill barring such fees from ever being imposed.1 As it turned out, 602P never existed. It was an Internet hoax. A dozen years after P602 frightened Congress into creating, in the words of Representative John D. Dingell (D-MI), “a fabricated solution to an imaginary problem,” regulation of the Internet continues to be a controversial subject.
What principles should guide our regulation of the Internet and to what degree do First Amendment rights attach to ideas disseminated therein? The answers, as they so always do, lie in the past—in the debates concerning the Post Roads clause of the Constitution and the recognition of the mails as an essential tool for the dissemination of knowledge and ideas. The power to “establish Post Offices and post roads,” while considered an obscure clause today, was important enough at the Founding to be mentioned in George Washington’s first annual address to Congress. “I cannot forbear intimating to you the expediency… of facilitating the intercourse between the distant parts of our Country by a due attention to the Post-Office and Post Roads.”2
Indeed, from the time of the 1792 Post Office Act, Congress has supported the principle of universal access to mail. To that end, the Post Office has been at the forefront of using advancements in transportation and communications technology—from canals, railroads, and airplanes to the telegraph and electronic communication—to spread mail to every corner of the Republic.3 This commitment was motivated, to a
large degree, by the belief that the speedy and uniform dissemination of ideas was central to the preservation of the Republic. As Representative John Calhoun of South Carolina said in 1807, “The mail and the press are the nerves of the body politic.”4
One hundred fifty years later, the United States Supreme Court acknowledged that the mail remained a central pillar in the nation’s experiment with democracy. In Lamont v. Postmaster General, 381 U.S. 301 (1965), the Supreme Court struck down 39 U. S. C. 4008 (a), which required the Postmaster General, upon receiving mail from a foreign country that he deemed “communist political propaganda,” to notify the addressee of the mail and advise him that it would be destroyed unless the addressee affirmatively requested delivery.5
It was the first time in history that the Supreme Court struck down a federal statute under the First Amendment. Concurring, Justice William Brennan wrote that the “right to receive publications is…a fundamental right,” without which the marketplace of ideas would be left with “only sellers and no buyers.” Lamont, 381 U.S. at 308 (Brennan, J., concurring).
Because the Post Office was the principal means of long distance communication, its regulation was inextricably linked with the right to receive ideas. See also Pike v. Walker, 121 F.2d 37, 39 (D.C. Cir. 1941) (“the postal system…is now the main artery through which the business, social, and personal affairs of the people are conducted and upon which depends in a greater degree than upon any other activity of government the promotion of the general welfare.”).6
Today, it is difficult to argue that the principal means of long distance communica-
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tion is anything other than the Internet. While the US Postal Service delivered 168 billion pieces of mail in FY2011, there are nearly 145 billion emails sent per day, not to mention hundreds of millions of Facebook messages and Tweets.7
However, unlike the Postal Service, much of the Internet’s physical plant remains in the hands of private companies. While the Federal Communications Commission (FCC) recently transformed the Universal Service Fund—a 20th century program that supported phone service in rural areas—into the Connect America Fund to spread broadband to the 18 million Americans who lack connectivity, private corporations will continue to own the bulk of America’s fiberoptic infrastructure for the foreseeable future, and with it, a dangerous level of control over the dissemination of information.
Against the wishes of ISPs, the FCC recently adopted rules that ban ISPs from discriminating based on content.8 In a court filing, the FCC asserted that without such rules, ISPs could, “prevent an end user from accessing Netflix, or the New York Times, or even this Court’s own website, unless the website paid the provider to allow customer access.” 9 Verizon, which is challenging the rules on First and Fifth Amendment grounds, claims that the FCC is overreaching and that government control of the Internet is antithetical to free markets—an idea that became part of the 2012 Republic Party platform.10 See generally Rob Friedan, Invoking and Avoiding the First Amendment: How Internet Service Providers Leverage Their Status as Both Content Creators and Neutral Conduits, 12 U. Pa. J. Const. L. 1279 (2010).
In a telling passage from its recent filing with the D.C. Circuit, Verizon declared,
“Broadband networks are the modernday microphone by which their owners engage in First Amendment speech.” (emphasis added). Therein lies the fundamental disagreement—whether the network is a private asset that exists only for the benefit of its owners or a quasi-public “post road” that must remain open to carry the ideas of all Americans at equal speed, regardless of content? Regardless of how the D.C. Circuit rules, companies are already finding ways around complying with the FCC’s net neutrality requirements. Comcast recently announced data caps for its cable Internet subscribers. However, while the cap applies to consumption of Netflix, HBO GO, and Hulu, it does not apply to content consumed through Comcast’s Xfinity app on Xbox, as the company claims this deliver device is not on the “public Internet.”11 And AT&T recently announced that it was limiting use of Apple’s popular video conferencing platform FaceTime on its cellular network to subscribers with tiered data plans, which include its highest rates for data.
Here in New York, the Eastern District recently affirmed “bandwidth throttling” by Cablevision, finding that the company could impose “discretionary limitations of bandwidth and Internet access of customer accounts that consumed, what it deemed, too much bandwidth.” Serrano v. Cablevision Sys. Corp., 2012 U.S. Dist. LEXIS 42152, *18 (E.D.N.Y. 2012) (emphasis added).
Unfortunately, Serrano did not even mention the First Amendment and the implications of turning over the means of censorship to private actors. While private companies own much of the nation’s fiber optic cable, those assets are buried under public thoroughfares—the original post roads—and their maintenance relies on a close synergy between government and the private sector. Just as the airwaves are a public asset, so is the territory along which companies lay cable. As a result, the government has an obligation to ensure that the public asset is used in a manner consistent with the First Amendment. (See Internet Post Road on Page 14)
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12 November 2012 / The New York County Lawyer
Legal Hacking and Hackathons By Alexander Goldman Today, “hacking” is about getting things done with technology, not about breaking the law. This new meaning of the word makes legal hacking possible. I knew the word had gone mainstream when I first read about hacker marketers, who are called growth hackers. Growth hackers use their understanding of social media and code to help a company reach customers. Hackers use their knowledge of code to write software. In hackathons, software developers gather a large number of people to spend a day or two on a major project. Hackathons are also mainstream: Facebook credits some of its success to internal hackathons. Utilities now have clean technology hackathons too. Lawyers are already familiar with working long hours, with solving problems, and with working in teams. Legal hackathons make sense. In April of this year, I attended the BLIP Clinic Hackathon, the world’s first legal hackathon, held at Brooklyn Law School and led by Professor Jonathan Askin. He aims to inspire lawyers to innovate, to stop being “yeah, but” people and to become “why not” people. The legal hacks were posted to Docracy, a startup that is itself a form of legal hack. Docracy is a website that facilitates the collaborative creation of legal documents as well as their sharing and signing (the business model focuses on signing, that would permanently eradicate the mailbox rule). Docracy was started at a TechCrunch hackathon and is venture
funded. Unlike LegalZoom, which was rightfully criticized in a recent issue of the New York County Lawyer, Docracy does not try to eliminate lawyers. Instead, it uses the Internet to facilitate communication, revisions, and signing. One of the legal hacks from the BLIP Hackathon proposes changing the law in order to frustrate patent trolls. Noting that a patent is a contract between a company and the government, and is therefore not standard property, it proposes examining closely any assignment of patents, and taxing any patents that are assigned but not used. It is an attempt to fight companies that invent nothing but make money by suing companies that have infringed patents that the plaintiffs have purchased. Such companies are known as patent trolls. A recent study claims that patent trolls cost the economy $29 billion per year. Several recent Brooklyn Law School graduates and I co-founded a meetup to discuss a topical legal issue once a month. Mobile privacy was the topic of the first Legal Hackers meeting. There are several intriguing projects that aim to build privacy icons that would be as useful as Creative Commons icons. One of the most interesting is a set of icons creating by AzaRaskin. Raskin admits, however, that companies may not want to post icons that admit that they do things customers don’t want them to do, such as sell personal information, retain personal information indefinitely, or use personal information for purposes not explicitly described on the website.
Although the technology industry views the word “hacker” in a positive light, law reviews and journals still mostly use the word to describe computer programmers who break the law. Nevertheless, a few educators besides Professor Askin are trying to change lawyers from naysayers into entrepreneurs. Professor Anthony Luppino of the University of MissouriKansas City School of Law writes that interdisciplinary legal education can create entrepreneur lawyers and that “fruitful law school-business school collaborations have been implemented in both clinical and regular classroom settings at several universities and can be replicated and expanded at many others.” Anthony J. Luppino, Minding More Than Our Own Business: Educating Entrepreneurial Lawyers Through Law School-Business School Collaborations, 30 W. New Eng. L. Rev. 151, 219 (2007). “Clients recognize and appreciate these ‘can do’ business lawyers and come to view them as valuable members of the team that drives the success of their ventures.”Id. at 152. Whether you call them “can do business lawyers” or “legal hackers,” a new kind of lawyer is being trained in response to a perceived need. Do you see a need for a new kind of lawyer? Let the New York County Lawyer know. Alexander Goldman, a NYCLA and Cyberspace Law Committee member, is a 2L at Brooklyn Law School. A former Internet trade journalist, he is studying the law of contracts, corporations, telecommunications, and government regulation.
Resources • Getting Things Done: http://tinyurl.com/NYCLAgtd • Growth Hackers:http://tinyurl.com/ growthhackers5 • Facebook Hackathons:http://tiny url.com/facebookhackathon • Brooklyn Law School’s BLIP Hackathon:http://legalhackathon.b lipclinic.org/ • Huffington Post article on Brooklyn Law School Hackathon: http://www.huffingtonpost.com/2012/04/17/legalhackathon-lawyers-hackers-brooklyn-law-school_n_1431038.htmlhttp://tinyurl.com/blshackathon • Legal Hackers Meetup: http://www.meetup.com/legalhackers/ • Docracy:http://www.docracy.com/ • Patent Troll Legal Hack: https://www.docracy.com/4738/killthe-trolls • Patent Trolls Cost the Economy $29 Billion Per Year: http://arstechnica.com/tech-policy/2012/07/new-study-sameauthors-patent-trolls-cost-economy29-billionyearly/http://tinyurl.com/29billion • Creative Commons: http://tinyurl.com/creativecommonsicons • AzaRaskin Icons: http://tinyurl.com/azaprivacy
Creating a Social Media Image That is Professional Without Removing Your Identity By Monica Trombley, Esq. It seems every day you see advice on social media presentations for lawyers. Never post pictures of being in costume, drinking, or “political” posts or otherwise doing anything that distinguishes you from Candidate #6012. Even sharing a petition on Facebook concerning an issue you care about is deemed career suicide. Oh, and don’t you dare have typos in your Twitter posts lest the Grammar Police arrest you and sentence you to a lifetime of unemployment! I’m sure some of you will read this article and say to yourselves, “That’s not possible.” That’s how I felt when I started out. By nature, I’m more of a recluse than a joiner. I felt I would never get along with attorneys outside my field since it seemed having an opinion on anything was as bad as drinking milk straight from the carton. For me, it felt like I was persona non grata before even entering a room. At the same time, I had my dream job and found my passion. Emboldened by this and at the suggestion of a PR rep I met, I created my own rant blog. People in my industry kept telling me it was funny. It started as my personal project but then others started reading it and that led to me gaining fans. I realize that when you are new to the field, you feel like you must impress everyone and never be yourself but I’m here to say that you can make the legal field fit you instead of forcing yourself to fit into other people’s images. Not all employers (and not even all legal employers) want to hire robots.
Some of us like attorneys who have a sense of humor or look at the world differently. Part of being personable is having a life outside the law and not being a bland caricature of what you think an attorney should be. This is not to say all the common tropes are bad since some are useful but in my experience, a few things work well: 1. Have a social media friending strategy: LinkedIn is a social media site set up specifically to be more professional and businesslike while Facebook by definition is more social. Twitter is also a more social, “human” space. If you want a personalized Facebook page and freedom of expression, you do not want to friend your boss, coworkers or others who may try to forbid you from having a viewpoint on anything or speaking your mind. I personally always warn non-creatives who want to be my Facebook friend that I do say things on my page they may not agree with and that if they are easily offended, they should stick to LinkedIn. Privacy controls are also a wonderful thing since on Facebook, you can customize who gets to see status updates and the like. 2. Have a disclaimer on your blog that says your blog only represents YOUR opinion and no one else’s: The same goes for the giving of legal advice and how you aren’t forming an attorney/client relationship with anyone by posting in your blog. It will be much harder for anyone to debate you on those points if you have a well-placed disclaimer stating these things.
3. Do not post confidential information about your workplace or what you do at work: Ethics rules are certainly a consideration here but at the same time, unless you really hate your job and want to be fired why would you do it? The public does not need to know that stuff and it’s probably boring. You do not need to use people’s names or other personal details. That just makes you look untrustworthy and like an aspiring gossip columnist. Note that this does not include protecting criminal employers or standing back while something illegal or distasteful is going on. That’s one of those “make your own judgment” calls but you do have to remember that most employers are not going to have your best interests at heart. You might have to make uncomfortable, financially painful or socially awkward decisions to protect your license, reputation, and overall well being. 4. Know your audience: My own blog is written for both lawyers and non-lawyers, in particular creative people. I talk a lot about my observations and opinions, many of which are shaped by my experiences in the entertainment industry. A stuffy, legalistic format would not work for my audience. If you want your audience to read your musings, you have to know what will get their attention and how to keep it. This also includes perception. Would you want your dream potential client to see some particular image? If you would not, save it for your anonymous blog or your private photo album.
5. Never post anything on social media you would not say to someone’s face: If someone is bothering you that much, you probably should have a face to face conversation if you can manage to keep your cool. 6. Own your words: Whatever you decide to talk about or share, own it. If you have a controversial or non-PC point of view on something that you want to share, do not back down. Do not apologize for it or say you “made a mistake.” A friend of mine decided to share his conservative views on his Facebook page and acknowledged that he might lose friends from it. He never apologized for it and he owned it. As I told him, there are all kinds of people in the world. You may alienate some but you could end up opening new markets and demographics of clients and potential clients who might never have thought of you if you didn’t write about that topic. Now your career may not allow you to be as outspoken and opinionated but if you can show that you have some non-legal interests and care about something, you will get your own reputation and credibility with others. Monica Trombley, Esq., a NYCLA and Entertainment Intellectiual Property and Sports Section member, is the Production Executive/In-House Counsel of One Way or Another Productions LLC. A graduate of Quinnipac University School of Law, she also writes a humorous rant blog called “The Angry Redheaded Lawyer” (www.theangryredheadedlawyer.com).
November 2012 / The New York County Lawyer 13
Using LinkedIn for The Job Search By Marina Moraru, Esq.
The way we professionally interact and conduct job searches on social networking websites has substantially changed over the last decade. LinkedIn is at the forefront of this change. Founded in December 2002 and launched in May 2003, LinkedIn has (as of June 2012) more than 175 million registered users worldwide. It has become the common online career tool for executives and professionals, as well as headhunters and recruiters.
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In a modern society, especially in a distressed economy, it is not sufficient to search and apply for jobs on traditional job posting websites. Networking plays a significant role in “getting” the career opportunities. To maximize success, it is important to make use of the benefits LinkedIn and other social networking websites have to offer. Here are some recommendations on how to make the most of LinkedIn in your job search:
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Reevaluate your attitude toward networking. Some of us still think of networking as an unpleasant or even somehow uncomfortable activity. However, there is nothing uncomfortable about networking and it can be enjoyable if you approach it as a means of communication and meaningful interaction with interesting people. This way everyone benefits, and networking stops being something you have to do and becomes an activity you want to engage in.
Create a professional profile. Make use of the many options LinkedIn has to offer for creating a professional profile. To accomplish this, when you think of your profile think of how you would like prospective employers and professional contacts to see you. First, it is important to include a photo on your profile, since it is known that users who include a photo have better chances to be contacted regarding job opportunities. However, the caveat is that the picture depict a professional you (as opposed to a romantic or party picture).
Be as thorough as possible in the description of your job experience, skills, interests, and other information about yourself. Consider including a professional summary, which could be short or in-depth, but well written. Also, if you know one (or more) foreign languages, make sure you highlight this on your profile, since it could enhance your marketability.
Include one or more recommendations, since they also increase your chances to be considered for a career opportunity.
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The recommendations could be job related, from law school/college professors or colleagues, or personal. Ask former and current supervisors and colleagues who will likely write strong recommendations, to post one on your profile.
Connect. There are many ways to grow your network: you could search for childhood friends, schoolmates, coworkers, and professional or personal acquaintances. It is important to know that you are not limited to people you personally know. You could connect to your contacts’ connections (the so-called “second-degree connections”), and also to the connections of your contacts’ connections (“third-degree connections”). Having more contacts could improve your prospects of finding a desirable position, but it is generally not advisable to connect with people you do not know at all. Write a personal note when inviting a person to become a contact (instead of sending the standard message), especially if you personally know the prospective contact. He or she will notice and appreciate this. Make your profile public. Make sure your profile is public so that anyone can find you. Also, customize your URL so that it is easy to share. This is especially important since it is quite common nowadays for LinkedIn URL to be included on business cards and other professional communications. Make known your availability. Use the contact settings to let others know your availability. You could choose “career opportunities,” “reference requests,” “expertise requests,” or
(See Using LinkedIn on Page 14)
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14 November 2012 / The New York County Lawyer
Internet as Post Road (Continued From Page 11)
To that end, Congress should designate (and the courts should recognize) the Internet and the cable that carries it as the post roads of the modern age. A First Amendment that allows Comcast and Verizon to out-speak millions of citizens with limitless campaign expenditures, but empowers those same companies to silence average Americans from using the Internet as a bullhorn for their ideas does not create a neutral marketplace. Rather, it stacks the deck against the chorus of the polity, undermines the Internet’s promise as a medium of democratic discourse, and betrays our commitment to one of our most cherished positive rights and an essential bulwark against tyranny: the free
Service of Process traverses are often a sword for delay or dismissal on hyper-technical grounds. If the records are uploaded daily to a third party contractor, is the record that of the process server or of the independent contractor? Whose business record is it? Will it be necessary to subpoena the third party contractor to appear in court?
(Continued From Page 7)
David Rozenholc, for the Defendant/ Respondent, surmised that the GPS proves little. Service of process must meet statutory requirements. Has a proper inquiry been made, or the proper mailings been performed? If documents are sent to a third party contractor, can they be altered? If there is a certification that they have not been altered, must someone appear in court to introduce the records? Mr. Rozenholc performed a simple test with one of his assistants, who sat by a window. The GPS showed that he was across the street. An
Using LinkedIn (Continued From Page 13)
“getting back in touch,” among others. Join professional groups. LinkedIn has numerous legal professional groups, including the New York County Lawyers’ Association group, that you can become a member of. Tap into these groups to engage in discussion with others in the legal community, access job postings, and improve your visibility. Finally, network. (Even if you do not need a job.)Whether you are very happy
Social Disclosure (Continued From Page 3)
ing the strength of the evidence as it is presented.
More than any other issue, a wrongful conviction represents a catastrophic failure that all sides of our justice system can rally behind. State police chiefs, district attorneys, defense bars, and the judiciary have all proposed reforms. However, New York has taken little action. This failure most obviously impacts the individuals spending years incarcerated for crimes they did not commit. Additionally, a wrongful conviction destroys families, leaves witnesses to grapple with the tremendous guilt of sending an innocent person to prison, and keeps the actual perpetrators at-large. According to law enforcement data gathered by the Innocence Project, seven rapes, five murders, two assaults, and one robbery were
and unimpeded exchange of ideas.
Andrew L. Kalloch, a NYCLA member, is a former Staff Attorney for the New York Civil Liberties Union and current Policy Adviser to Manhattan Borough President Scott M. Stringer. (The opinions expressed in the article are his own and do not reflect that of his employer)
1 http://www.nytimes.com/library/ tech/00/05/cyber/articles/17tax.html. 2 George Washington, 1st Annual Address to Congress (8 Jan. 1790), Available: http://gwpapers.virginia.edu/documents/uni on/state1.html. 3 The powers thus granted are not confined to the instrumentalities of commerce, or the postal service known or in use when the Constitution was adopted, but they keep pace with the progress of the country, and adapt themselves to the new developments
accurate GPS reading is one within ten meters, which requires the GPS to connect to four satellites. This requires a clear view of the sky. If it is cloudy, or one enters a building, a number of the four connections can be lost. A connection to three rather than four satellites can be the difference of 3,000 feet. Cell phones do not show the number of satellites to which the GPS is connected. Many third party contractors are located out of state and cannot be served with a state court subpoena. A process server is required to bring all records related to the service to court. Should the attorney be allowed to test the cell phone? The third party provider is required to keep records to ensure integrity, so as to be admissible. Traverses are won by obtaining information that the process server does not expect to be asked, for which the process server has not been prepped.
The View from the Bench Hon. Gerald Lebovits, Judge of the Civil Court of the City of New York, opined there are issues of authentication and evidentiary concerns. Judge
with where you are in your career or not, it is important to be in touch with professional contacts. First, it is good to be aware that no one has 100 percent job security and that there is a chance you will need a job at some point in your career. Also, you cannot know when a truly great opportunity appears, but one way to make sure it does is to nurture your professional relationships. Marina Moraru, Esq., a NYCLA member and a graduate of Cardozo School of Law, is a volunteer with NYCLA’s Legal Counseling Project. You can reach Marina at email@example.com or on linkedin.com/in/mmoraru.
committed in New York by the actual perpetrators of crimes while these 24 people were wrongfully incarcerated.
It is time for New York to become a leader in protecting the innocent from wrongful convictions. Some say wrongful convictions are inevitable. While this may be true, we must at least be able to inform Michael Mercer, and the many others who have felt the worst of injustice, that our system has done everything reasonably possible to ensure the accuracy of convictions.
Micahel C. Pope, Esq. is a NYCLA member and Equal Justice Works Fellow at Youth Represent. His above essay was selected by NYCLA’s Criminal Justice Section as a winning essay in its 2012 Public Service Fellowship Essay Contest, open to newly admitted public sector attorneys working in the fields of criminal justice carrying more than $30,000 in educational debt.
of time and circumstances. They extend from the horse with its rider to the stagecoach, from the sailing-vessel to the steamboat, from the coach and the steamboat to the railroad, and from the railroad to the telegraph, as these new agencies are successively brought into use to meet the demands of increasing population and wealth…As they were intrusted to the general government for the good of the nation, it is not only the right, but the duty, of Congress to see to it that intercourse among the States and the transmission of intelligence are not obstructed or unnecessarily encumbered by State legislation. Pensacola Tel. Co. v. W. Union Tel. Co., 96 U.S. 1, 9-10 (1878) (internal citations omitted). 4 Kendric Babcock, Rise of American Nationality, New York: Harper and Bros, 1906, 252. 5 The section was passed as § 305 (a) of the Postal Service and Federal Employees
Salary Act of 1962, 76 Stat. 840. 6 http://www.volokh.com/posts/1213805011.shtml; see generally Anuj Desai, “The Transformation of Statutes into Constitutional Law: How Early Post Office Policy Shaped Modern First Amendment Doctrine,” 58 Hastings L.J. 671, 691 (Mar. 2007). 7 http://about.usps.com/publications/annual-report-comprehensive-statement2011/html/ar2011_report_3_001.htm; http://www.huffingtonpost.com/2012/09/06/ email-will-never-die_n_1860881.html. 8 http://www.pcmag.com/article2/0,2817,2406672,00.asp. 9 http://thehill.com/blogs/hilliconvalley/technology/248619-fcc-urges-courtto-uphold-net-neutrality-rules. 10 http://www.washingtonpost.com/blogs/ posttech/post/gop-adopts-internet-freedom-plankthecircuit/2012/08/29/2aebc568-f1d2-11e1892d-bc92fee603a7_blog.html?wprss=rss_posttech. 11 http://xbox.comcast.net/faqs.html.
Lebovits discussed his previous assignment to Staten Island where a high percentage of Section 8 and New York City Housing Authority respondents appeared after a judgment had been entered by default. In many instances, Judge Lebovits felt that service had been improper. Does the GPS cover all apartments in an apartment project? There are fewer process servers in the business and this is good. Who has the burden of proof on a GPS? What if there is no evidence presented on the GPS, but the court believes service was proper? The intention of the Legislature was to establish whether sewer service took
place. Who is the custodian of the records? There must be a third party contractor to keep the records available. If the GPS is not made available, is there an adverse inference? Cannot the Defendant call the independent contractor as a witness? Upon the conclusion of an interesting and educational evening, one can look forward to a follow up CLE, once the new technology is put to the test and decisions flow.
New Media Landscape (Continued from page 6)
LinkedIn allows its users to showcase their professional backgrounds, achievements, affiliations, and publications by providing a platform that encourages building one’s individual brand. The LinkedIn profile page invites its users to complete the profile using material typically found in a resume, but it takes the resume a few steps further. This extension of the resume is achieved by: allowing users to upload photographs on their profiles; offering an integration with Twitter accounts; and the ability for users to stay up-to-date on their professional connections by sending profile updates of their LinkedIn network detailing new jobs, new responsibilities, levels of exposure and experience, and of course new LinkedIn connections. LinkedIn also provides: a messaging system to communicate with other LinkedIn users via its own e-mail system; an opportunity to connect with peers via shared group affiliations; a methodology for firms to find talent and platforms to aid professionals in finding new jobs; an opportunity to search companies via a company’s LinkedIn profile; the capability to identify friends/peers who work at those companies; general news; and the identification of how many degrees of separation exist between a user and a person they are seeking to meet. LinkedIn can serve as an excellent way to locate strong candidates for your organization, but can also be an equally strong tool in marketing your organization and attorneys within your organization. It is important to remember that just as lawyers utilize LinkedIn, clients do as well. Firm websites are not the last stop in the assessment of locating great representation and it is critical that a firm and its attorneys’ images remain consistent on-line as well as offline. Pinterest Pinterest is one of the newest on the social
Robert Silversmith is the Managing Member of Silversmith & Associates Law Firm, PLLC, a firm with an emphasis on real estate litigation. Bob is the former Chair of the Civil Court Practice Section.
media scene and is still being adopted by the masses. However, if the trends of other social media outlets hold true, this new social media tool will have staying power. Pinterest is building dedicated followers, attracting new ideas surrounding monetization models, and is changing the way clients, and therefore lawyers, are doing business. So what is it?
Pinterest is a content sharing platform that allows its users to share information found on the Internet by “pinning” images, videos, and other visual tools. Pinterest is “social” because as a virtual pinboard it allows users to follow other members of the community’s boards, repin topics, pictures, or websites, and thus create new communities based on the pinning and repinning phenomenon. Sound like too much? Don’t fear, it’s not. In a nutshell, Pinterest users tend to create theme-based photo sharing experiences. In fact, as the user base continues to expand so has the methodology by which Pinterest’s users have integrated this system into their social media landscape. The Pinterest mission, according to its website, is to “connect everyone in the world through the ‘things’ they find interesting. [They] think that a favorite book, toy, or recipe can reveal a common link between two people. With millions of new pins added every week, Pinterest is connecting people all over the world based on shared tastes and interests.”10 What does that mean for attorneys? It means that articles, websites, LinkedIn profiles, and company blogs can be placed in one place on Pinterest and when executed properly can create a very compelling visual marketing package using the material your organization has already created. Like every social media site referenced in this article, there are a plethora of howto’s to direct even the most social media challenged practitioners in ways that they can use Pinterest to aid in the marketing of their firms, creating business development models for clients, and as a new
(See New Media Landscape on page 15)
November 2012 / The New York County Lawyer 15
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New Media Landscape publishing model. However, lawyers, like Pinterest users, must remain vigilant about the legal landmines that are scattered throughout the Pinterest landscape. Fair use can only go so far and there are potential problems that can and may arise from the unauthorized use of images on Pinterest pages. With that said, as this article is being drafted, many businesses have decided to not make the mistakes of the music industry from the Napster era, but rather have aimed to get ahead and involved with the technology that is driving brand and customer interest. Accordingly, television shows, magazines, publishing companies, authors, and a plethora of other content providers are creating their own Pinterest pages and with that are driving traffic back to their websites, blogs, and amazon pages to increase sales and customer interaction. (Continued from page 14)
Quick Response (QR) If you haven’t noticed those two-dimensional box barcodes on your magazines, junk mail, websites, and in information packets, you will now. Those barcodes represent the new wave of information exchange in advertising and are taking off like hotcakes as developers recognize the steady increase of consumers utilizing mobile devices to access information. The bar codes are called Quick Response or QR codes and they are readable by smart phones. These codes can contain a variety of information and essentially provide the user with an easy way of sending the audience links to information like a website— without having to provide a URL. If your smartphone is equipped with the correct reader software (which can be downloaded for free in most app stores), it can then have the ability to read a variety of QR data ranging from websites to WIFI configuration data in a hotel, to business card information, or full event information including addresses, time, telephone numbers, and contacts. Practitioners may find that by placing QR codes on business cards they are able to provide readers with additional data outside of the normal four lines used on most business cards. For instance, practitioners can direct potential clients to websites, practice areas, recently published articles, or other data that may assist them in better understanding who you are as an attorney and your experience.
Blogs Arguably, the piece de resistance of the social networking world is the now cus-
tomary concept of blogging. A Google search for the term “blogs” resulted in 3,600,000,000 hits. Blogs are a type of text commentary that allows the creator to post articles and then accept comments based on those articles. Many blogs are akin to on-line diaries while others serve as a modern form of news conduit. Most entities known today as “traditional print media” have adapted the concept of blogging with USA Today, Wall Street Journal, New York Times, LA Times, Washington Post, and the NY Daily News all having links on their webpages to blogs affiliated with their journalists. Interestingly, while legal practitioners may have been slow to jump on other social media outlets, they are all too familiar with the concept of blogging. So accepted is the concept of blogging within the legal community that the ABA Journal even ranks the 100 best blogs for lawyers and publishes them on its website.11 An example of one of the most popular (and controversial) legal blogs is Above the Law, a witty website/blog that is responsible for covering the details of the legal community in an exposé fashion that is a hybrid of Entertainment Tonight and CNN. Easily able to update its followers with new content via RSS feeds,12 Above the Law has garnered a loyal following in the legal community based on its ability to provide detailed information on various firms—information many times submitted anonymously by law firms’ employees. With no more needed than a computer, the Internet, and a little time, blogs can be potent, informative, and as the 3,600,000,000 number suggests, extraordinarily popular.
The Effects of Social Media On Lawyers It’s a fact: the Internet has become an integral part of our practice as lawyers. It affects how we research, how we publicize our cases, and, in turn, what people learn about our firms, clients, and cases through their own research. Just 12 short years ago, the extent of the data available on the Internet may have been limited to what could be found in a LEXIS, WESTLAW, Martindale-Hubble, or general news archive search. Times have changed. In addition to the information that can be ascertained by public data bases like zaba search (a website designed to search for and collate information regarding US residents) or spokeo (a website that aggregates data from various online and offline news sources), attorneys today now have access to the archives of major news networks, Google, and social media platforms.
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It is evident, based on their participation in social media platforms, that corporations have realized that increased revenue may correlate with increased RSS feeds. Law firms, similar to Jet Blue, Southwest Airlines, and Wachovia, are businesses and are affected by the bottom line. There are too many valid arguments to count to support the position that firms should enhance their on-line presence to mold their image, distribute firm news, monitor the opinions circulating regarding their firm and their clients, or their clients’ product, and as a way to develop new business.
Moreover, revered law news forums from Law.com to ABAJournal.com feature articles on joining social media networks and promote everything from inviting the reader to“like” them on Facebook to posting sponsored links to help practitioners design their own lawyer blog. At this juncture, the reality is that social media has become ingrained in society’s culture and it is up to law firms to familiarize themselves with the platforms available, the pros and cons of the usage, and to craft policies that provide protection for firms, employees, and clients.
Candice S. Cook is the Managing Member of The Cook Law Group, PLLC. The firm addresses the legal needs of the business/corporate/technology/startup/entertainment sectors to provide traditional legal services with cutting edge and innovative strategic and business solutions. Candice also works with clients (including law firms) to aid in the cultivation of their social and new media strategies and aids in the development of internal policy and procedures. Her written work can be found on People.com, TheLostGirlsWorld, The Virginia Magazine, and Women 2.0. She has appeared in the American Bar Association Law Journal, O Magazine, on The Today Show, and Elle Magazine. She can be followed on Twitter @CandiceSC1.
1. A computer user’s representation of himself/herself in the form of a 3 dimensional model used in computer games. 2. The Supreme Court of the Australian Capital Territory ruled that Facebook is a valid protocol to serve court notices to defendants. Also, in March 2009, an associate justice of the New Zealand High Court, David Glendall, allowed legal papers to be served on a defendant via Facebook. 3. See http://www.abajournal.com/news/article/trial_ from_hell_prosecutor_posts_on_facebook_jurors_tex t_bailiff_chats_in_d/ (last visited May 12, 2010). 4. On April 6, 2009, Facebook was heraldedfor being the reason a 16 year-old Maryland girl in America was able to save a young British teenager
from committing suicide. After reading his disturbing Facebook post, the young lady’s parents contacted the British embassy who investigated the incident, passed the details on to police, and were able to intervene in the young man’s drug overdose. 5. Facebook reportedly offered to acquire Twitter for $.5 billion dollars-Twitter declined. 6. Twitpic is a tool allowing twitter users to post photographs. 7. See http://www.cnn.com/2009/SHOWBIZ/Movies/04/03 /moore.twitter.threat/ index.html. 8. See http://www.businessweek.com/technology/content/s ep2008/ tc2008095_320491 .htm. 9. See http://www.nytimes/com/2010/ 04/15/technology/15twitter.html. 10. Seehttp://pinterest.com/about/. 11. See http://www.abajournal.com/blawgs/ blawg100_2008/news. 12. An abbreviation for Really Simple Syndication, RSS is a format for distributing news and other web content to a blog’s followers.
The Committee on Professional Ethics accepts both written and telephone inquiries on ethics matters and provides advisory opinions. For additional information, call the members listed below. November 1-15 Gordon Eng 203-769-8812 November 16-30 Wally Larson 212-225-2359 December 1-15 Sarah D. McShea 212-679-9090 December 16-31 Jim Kobak 212-837-6757 Please Note: Assignments are subject to change. Questions to the Hotline are limited to an inquiring attorney’s prospective conduct. The Hotline does not answer questions regarding past conduct, the conduct of other attorneys, questions that are being litigated or before a disciplinary committee or ethics committee, or questions of law. This notation shall not be construed to contain all Hotline guidelines. For a full discussion of Ethics Hotline guidelines, please see the article below, “Guidelines on NYCLA’s Ethics Hotline,” published in the September 2006 issue of New York County Lawyer.
16 November 2012 / The New York County Lawyer
Published on Nov 13, 2012
This issue of the New York County Lawyer focuses on social media and covers this ever-changing medium from different angles. Learn about who...