American Inns of Court – March Program

Inspired by the Broadway hit Hamilton, Judge Clare Maier’s pupilage group rapped its way through recent developments in family and internet law.  The tone was set by Judge Maier’s limerick-styled introductions of her group. Scott Lantry (for example) was introduced:

If family law makes you irate
Call Scott Lantry, your troubles he’ll mitigate.
He emphasizes settlement
‘Cause that’s for your betterment
But disputes he is not afraid to litigate.

Are debts community or separate?

The first skit of the evening, set in dystopian “Blunderland,” considered whether its First Lady–Oceana Rump–is liable for loans her husband took from the Russian dictator Sadimir Brutin, as she considers divorce.  Relying on In re Marriage of Bonvino (2015) 241 Cal. App. 45th 1411, 1423, Mrs. Rump’s lawyer informed her that in determining liability for assets acquired on credit during the marriage, the court determines whether the lender intended to rely on separate or community property for repayment.  In general, loan proceeds acquired during marriage are presumed to be community property.  This presumption can be rebutted by showing the lender intended to rely on the spouse’s separate property alone. Loan proceeds secured by separate property are also separate property.

Can we review the venire’s social media postings?

The next skit moved to Blunderland’s courthouse where Oceana Rump’s attorney, in a civil matter, was asking for three days to review the venire’s social media postings prior to jury selection.  Should the judge grant the request?  Within limits, it is ethical to conduct internet searches on prospective jurors (ABA Formal Opinion No. 466).  Moreover, “passive review” of a juror’s website or social media that is available without making an “access request” and of which the juror is unaware is permissible within ABA Model Rule 3.5(b).  It is, within limits, ethical to conduct internet searches on prospective jurors (ABA Formal Opinion No. 466).  There is no hard and fast rule; however, the court could look for guidance to Oracle Am., Inc. v. Google Inc. (N.D. Cal. 2016) 172 F. Supp. 3d 1100.

In that high-profile case, Judge William Alsup denied a similar request and crafted a workaround to, in part, ensure the venire’s privacy concerns were addressed.  Judge Alsup informed the parties that they could either consent to a ban on such internet searches or abide by his proposed rule.  He proposed that at the outset of jury selection, each side was to inform the venire of the specific extent to which it would use internet searches to investigate and monitor jurors, including specifically searches on Facebook, Linkedin, Twitter, and so on.  The venire persons were then given a few minutes to use their mobile devices to adjust their privacy settings, if they wished, to limit the parties’ access to their postings.

The case also summarized alternative accommodations to venire persons’ privacy concerns, such as empaneling an anonymous jury (United States v. Norwood, No. 12-CR-20287, 2014 WL 1796644 (E.D. Mich. May 6, 2014), preventing any internet searches because one side failed to notify the other of such searches (Carino v. Muenzen, No. A-5491-08T1, 2010 WL 3448071, at *10 (N.J. Super. App.Div. Aug. 30, 2010).

What are the rules for internet advertising?

The skit then followed unhappy Oceana Rump as she wrote glowing reviews on her attorney’s website.  Unfortunately, the review is loaded with “alternative facts” and several outright lies, which come to the lawyer’s attention when she is swamped with potential clients.  What rules and statutes govern this situation?

Rules of Professional Conduct, Rule 1-400(D) requires truth in advertising, especially whether the attorney is a certified specialist, and in the Standards Adopted by the Board of Governs, the attorney may not guarantee an outcome, and testimonials must include a disclaimer that the attorney does not guarantee similar outcomes.  Bus. & Prof. Code § 6157 & 6158 similarly prohibit false or misleading statements.

Lawyers should also keep in mind that the source of reviews should be real clients.  The Federal Trade Commission recently prosecuted the public relations firm Reverb Communications Inc. with violating the Fair Trade Commission Act and deceptive advertising for having its employees pose online as happy consumers of an application bought from Apple’s ITunes Store.  Similar prosecution of an attorney is certainly possible for such “AstroTurfing.”

Swapping a legal opinion for advertising?

The last (and funniest) skit of the evening harkened back to President Nixon’s Checkers speech, in which Nixon recited a section of Gibson Dunn and Crutcher’s opinion letter absolving Nixon of wrong-doing.  In this case, President “Rump,”having been exposed as the recipient of a foreign loan, and potentially violating the Constitution’s emoluments clause.  President Rump offers to speak glowingly of a law firm in exchange for an opinion letter absolving Rump of wrong-doing.  It smells bad, because it is bad.

Rule 1-320(B) of the California Rules of Professional Conduct states ““[A lawyer] …shall not compensate, give, or promise anything of value … for the purpose of recommending or securing employment …  by a client, or as a reward for [such employment]. A member’s offering of or giving a gift or gratuity to any person or entity having made [such] a recommendation … not of itself violate this rule, provided that the gift or gratuity was not offered or given in consideration of any promise, agreement, or understanding that such a gift or gratuity would be forthcoming or that referrals would be made or encouraged in the future.” Rump’s quid pro quo is unethical.

The Hon. Clare Maier Players were: Hon. Clare Maier, Delia Isvoranu, Jamie Retmier, Patricia Kelly, John Warnlof, Scott Lantry, Mukesh Advani, Jonathan Babione, Angelica Lopez and yours truly, Joseph Nykodym.


Joe Nykodym

Joseph Nykodym is a family and general civil litigator, and teacher, in Moraga. 

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