Senior Partner Ken Raggio made a presentation on the Pleasures and Pitfalls of Social Media and Other ESI at the Advanced Family Law Course in San Antonio. The course was attended this year by 1750 Texas Judges and lawyers. It is the largest annually held CLE presentation in the USA.
Raggio and his copresenter Kristal Thompson made points to help clients avoid being "stupid" when it comes to social media, as well as giving detailed information in his paper to help the lawyers avoid missteps in cases involving social media. (And there is virtually no case now that doesn't have some social media component or involvement nowadays!) The Powerpoint is here.Advanced_Family_Law_2014.pdf
Raggio has also lectured in other states and to the national Academy of Matrimonial Lawyers on Social Media and other Electronically Stored Information (ESI).
A California who placed a bug in the vehicle of an estranged spouse has gone to jail for that act... and others according to the American Bar Association Journal. But she also had, as they say--"Other Entanglements..."
A former California divorce lawyer who admitted bugging a car was sentenced on Monday to two years in prison for illegal eavesdropping and tax evasion.
Mary Nolan, 62, of Oakland pleaded guilty to charges of evading more than $400,000 in federal taxes and causing her staff to plant a listening device in the vehicle of “N.F.,” identified as a client’s estranged spouse by the Contra Costa Times and as a client’s ex-husband by the San Francisco Chronicle. Nolan gave up her law license and agreed to repay $469,000 in back taxes, according to an FBI press release.
Nolan was among the defendants caught up in the so-called “dirty DUI” scandal in which a private investigator hired alluring women to drink with the husbands of divorce clients at bars. The women would then invite the men to follow them in their cars, and police would be called to investigate a DUI.
A doctor said in court documents that Nolan suffered from post-traumatic stress disorder as a result of the deaths of her grandparents at a young age and her parents while in college, according to the Contra Costa Times report.
Lesson: Don't wiretap, pay your taxes, and don't run a scam.
The ABA Journal story is here.
We always tell our clients to be careful with their social media posts. But we seldom think about what their child might post.
In a non family law case where the parent had won a settlement, the child's post on Facebook days later caused the parent's settlement to be voided.
You see, Patrick Snay, the former headmaster of a school in Florida, had sued the school (Gulliver) for discrimination, and had agreed to an $80,000 settlement. And one of the terms of the settlement was CONFIDENTIALITY or non disclosure.
Such non disclosure provisions are common in litigation; they are also common in Divorce and Custody cases. But that is for another day.
Snay's daughter posted the following to her 1200+ Facebook friends “Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.”
Through some of her 1200 friends, the post made its way back to Gulliver's officials and lawyers, who asserted that the post violated the confidentiality provisions of the agreement, and should void the agreement.
And the agreement was set aside by a court of appeals.
So be careful what you tell your child about your personal business--especially if the child is active in social media!
There are potential lessons for a family law case here. The Dallas Divorce Courts' Standing Orders and Temporary Injunctions issued in a divorce or other family law case have provisions that prevent either parent from involving the children in the divorce. The best parents in a divorce rehearse with a counselor how to tell the kids about the divorce, and tell them that the divorce is not about them, that both parents love them, and both parents are committed to make the transition to two households as smooth as possible. And give support to the kids during the process, but not much opinion.
In other cases, one or both parents flame the other parent repeatedly in front of the children because of their anger or other issues that the parent has. many times such bad acts are brought before the Court, and dealt with in ways that are not liked by the flamers. I have seen sanctions all the way to a change of custody. An example of a flame could be: "We can't go to the movie tomorrow because your Daddy spent all the child support money on his [girlfriend][drugs][gambling] [boyfriend] [you pick--you get the point].
The Miami Herald story is here.
You may think that the calls and texts you send and receive from your cell phone are yours and private.
While it is clear that the content of such communications is private–absent a court order--data about to whom, from whom, the duration of such calls, and the facts of the text message's transmission, are NOT private.
AT&T just disclosed that it had honored over 300,000 requests for cell phone information from law enforcement agencies in 2013. This does NOT include the number of requests from civil subpoenas, in cases like divorces or child custody cases.
The data that is clearly NOT private (in response to a subpoena) is the occurance (date, time, duration, and to/from what number) of a call, text, or email. Geotags--location information--may be in a different category. Click here to take read an older post, Think Before You Text, about the risks that text messages and e-mails can pose to clients.
So everyone leaves a digital trail of their cell phone usage that CAN show up in a divorce or custody case.
But there is one potential positive of getting the cell phone records: a case of call spoofing previously discussed in a previous News item here.
A story in PCMagazine about AT&T's responses to law enforcement requests is here
Attorney-client confidentiality is a bedrock principle of the American legal system. Candor and free expression between attorney and client is essential in the course of representation.
But lawyers are not immune from cyber security concerns, and despite prudent precautions, some attorneys can fall victims to cybercrime.
The ABA Journal reports a North Carolina attorney inadvertently downloaded a virus that shut him out of his computer system.
Like other businesses, the attorney was targeted via e-mail. He opened a fairly innocuous attachment, and that's when the Crypto Locker virus took over. The article reports that "Thousands of documents stored on his computer were made inaccessible," the attorney reports, "it was actually an email that looked like it was coming from our phone system because our system sends voice mail messages as an attachment.”
The makers of the virus essentially held his computer hostage, and offered him access to his computer if he paid a ransom.
My recommendation for lawyers: regularly back up your electronic files with external hard drives, and keep them in a secure, fireproof place--and consider having a backup copy located outside of your office in a secure and fireproof place. Also consider secure cloud services.
My recommendation for everyone: be careful what you download--schemes like this Crypto Locker extortion ring are pretty sophisticated.
The ABA Journal story is here.
My friend Mark Bentley, who works as a lawyer for the UT System in Austin, commented that their office is not immune from cyberattacks like this one. He adds that these malware can be masked and look like trusted websites and known e-mail senders.
At the national annual meeting of the American Academy of Matrimonial Lawyers held in Chicago this week, Ken Raggio co produced and moderated the Second Annual Technology Symposium, presented to several hundred other Fellows of the Academy. Academy membership is by invitation only, and is regarded nationally as the most prestigious family law organization.
As part of the program, Ken demonstrated the use of TranscriptPad, a high end iPad app that helps organize depositions and other transcripts in a family law case. The demo was very similar to the use of the tool in either Court or other proceeding: by having the iPad display on a big screen TV.
Ken Raggio spoke and presented TemporaryOrders -The First and Lasting (Perhaps Last) Impression? to the 1850+ registrants at the Texas Bar's 39th Advanced Family Law Course held this year in San Antonio. The paper is here.
Raggio also was a teacher in the Ipad workshops held throughout the day on August 6th. Ken served as faculty with other certifed family law specialist attorneys from around the state who are also renown techies.
Is someone--like your teenager--using Facebook too much? You want to have them quit Facebook? You could try reaching into your wallet.
A research consultant in Boston paid his 14-year-old daughter a $200 fee to quit the social network until summer, according to a post on his blog that has been further reported on tech websites. The consultant, Paul Baier, posted an inage of the "Facebook Deactivation Agreement" he made with his daughter on this Tuesday.
Per the agreement (signed by both parties) the teen promised to deactivate her account on the social network from this past Monday until June 26, 2013. In return, Baier will pay his daughter $50 in April and the remaining $150 in June, at the end of the five months.
The teaching point for parents of teenagers is clear. But for those in a divorce or family law case, deactivating or de-publicizing Facebook or other social media accounts may be a very wise move. Then the "other side" can't get easy access to potentially damaging materials.
This does not mean deleting or terminating the account. The general rule is to deactivate, not terminate. TERMINATION of an account could be viewed as SPOLIATION, or the destroying of evidence. A lawyer in Virginia was ordered to pay $520,000 for his role in his client's DELETIONS from the client's Facebook account. A link to the Virginia Supreme Court case is here.