Criminal

evidence from internet and social media in criminal cases part 5

Let me tell you my reaction of this, if I’m not real damn sure about the answer is, the answer is “NO”. Well that’s like my kind of approach to ethics because I simply don’t ever want to be in front of the ethics board explaining my conduct. I mean it’s the way of defense lawyers, is why I walk up to the line and stayed so clear of it, you don’t give a fight over it. I think there is a really strong case to be made, that if you start publishing thing to the internet, that’s not my fault. And the fact that you weren’t selective about who you handed them it to, also not my fault. You wrote a book and published it, what was I not allowed to read it? My staff not allowed to read it? My staff thought to read your book but I didn’t came in to showed it to me and it had relevant information that I cause that. I didn’t do any of these things. This all prohibits me to having a communication with your initiating one I didn’t.

You wrote things to the world, you handed it out to everyone, one of those people knew me, they handed it to me. I think that probably all perfectly permissible but if it feels wrong, I don’t want to have the fight and so I’m either going to disclose in all likely hood or tell them to unfriend for now. And that could of course cause different oddities in the work place.

Beyond that keep in mind when you are dealing with an organization, if you are dealing with the insurance company that’s one thing if you are suing a company that is arguably vicariously liable for an accident held before for example by its employees that you’re not just targeting insurance company but you are targeting the employer of the person that hit your client for example.

One thing to be cautious about that the organization extends because an organization is the people that deals through and so the rules actually go out of its way to define who is a client when you come to a company.

An organization or entity or government includes those persons presently having managerial responsibility that by the way always makes defense lawyers very uncomfortable, it’s only current manger, former managers that I cannot stop a plaintiff’s lawyer from talking to. It’s very surprising, I still own the privilege that so they can’t wave that but a plaintiff’s lawyers could in theory actually talk to them and not tell me about it as long as they are not currently a manger.

And to those persons presently employed by such organization and whose actor [inaudible] connection subject of representation. They make the organization vicariously liable, where does this come up? We had a plaintiff visit website known to be dedicated to the hatred of our client and I will say that again. You know you have arrived as a company when there is I hate your company name dot com. When that exists, you have succeeded in some form or fashion.

That website was frequented by both [inaudible] current and former employees. We are being sued by one the former employees and his lawyer got onto that website and put up a post that said “Hi I’m lawyer, disclose to it was”. I’m representing client did not name them had these things happened to them. If you know anything about this, or have had something similar happened to you, please contact me.

Now that second bit raises mild barratry concerns for me but that really wasn’t my focus. My focus was the first part, if you know anything about this, and I happened to know that the plaintiff that made up the post so I called him and said “hey I’m looking at your post, what you are talking about,” dude I troll the site, of course I troll this site and you just posted something that I want you to take it down. Why would I do that because you didn’t do anything in your post to make sure one of my managers doesn’t respond and if one of my manager responds to your post, I’m going to have forward you a copy of a rule 402 and we are going to have a really unpleasant conversation. Will you please take the post down?”

You know now that you mentioned it “yes” because what he had done is targeted an area known to be frequented by my people. Put out a direct solicitation for communications related to the subject matter of representation and had taken no step what so ever to make sure the person who responded wasn’t a manager or someone for whom I would be responsible if through vicarious liability. That means you are setting yourself up for a 402 violation, so if you go out and at a high level, passive review is one thing. You are just searching and reviewing what you find, that’s one thing, broadly speaking safe.

Francisco Hernandez

Author Francisco Hernandez

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