State Bar of Texas Annual Meeting 2018: Social Media and Ethics

Episode Notes

Transcript

State Bar of Texas Podcast

State Bar of Texas Annual Meeting 2018: Social Media and Ethics

06/21/2018

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Intro: Welcome to the State Bar of Texas Podcast, your monthly source for conversations and curated content to improve your law practice with your host Rocky Dhir.

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Rocky Dhir: Hello and welcome to the State Bar of Texas Podcast, I am Rocky Dhir, your host, I’m here in Houston. Why am I in Houston, because there’s something big going on in Houston. It’s the 2018 State Bar of Texas Annual Meeting and I’ve got a very, very good friend of mine sitting across from me.

For some reason I can never get him to stop writing books, this guy, his name is John Browning.

John, how are you?

John Browning: Doing great, Rocky.

Rocky Dhir: Many of you may have heard of John or you may have heard him speak or you may have read his books. You have been writing about almost everything under the Sun. Do you have like a murder mystery thriller yet?

John Browning: Not yet, because my wife would like me to write a John Grisham like courtroom thriller, only unfortunately, I don’t think I’m that creative. I think I’m going to have to do something that makes more money one of these days.

Rocky Dhir: You could take a Grisham book and maybe just put like some duct tape over his name and put yours in with like a sharpie.

John Browning: Or do like a color by numbers thing and just change some names.

Rocky Dhir: You could be a children’s author, how about that?

John Browning: Well, my first children’s book didn’t do very well, Rocky, for reasons that may be obvious by the title, it’s called ‘Daddy Drinks Because You Cry’, and just didn’t really succeed.

I also tried a —

Rocky Dhir: The truth hurts sometimes, the truth hurts to kids.

John Browning: And I tried a children’s book on Federal Jurisdiction called — it was really kind of a Dr. Seuss style called ‘There’s a Pennoyer in My Foyer’, but apparently Federal Jurisdiction is not a big issue with the pre-K set.

Rocky Dhir: They should make a Christmas movie out of that though, Pennoyer in the Foyer.

John Browning: Well, I still have the movie rights, and unfortunately all the rights.

Rocky Dhir: Nobody has asked you for them yet?

John Browning: No.

Rocky Dhir: No?

John Browning: No.

Rocky Dhir: Well, maybe somebody will hear this.

John Browning: Ah, that could be my ticket to stardom.

Rocky Dhir: Yes. Steven Spielberg, are you listening to this? Hey Spielberg, listen, you got to get this guy, make Pennoyer in the Foyer into an actual movie. You can change it around entirely and make it more like Star Wars-esque, but just keep the title.

John Browning: Exactly.

Rocky Dhir: That’s all we care about.

John Browning: Yeah.

Rocky Dhir: Substance doesn’t matter anymore.

John Browning: You don’t need much CGI with Federal Jurisdiction.

Rocky Dhir: No, you don’t. No, you don’t. You might need a few thoughts and prayers, but that’s about all.

So John, you’re speaking here at our Annual Meeting, you’ve got a couple of topics, but the one I thought was really interesting, is about Social Media and Ethics.

John Browning: Yes.

Rocky Dhir: So is this the — I think we’ve heard the talks before about how to use social media to try to cross-examine a witness, is it that kind of thing?

John Browning: Well, actually it’s a little bit more of some cautionary tales for lawyers and it’s an outgrowth of my most recent book, ‘Legal Ethics and Social Media: A Practitioner’s Handbook’, which came out last June from the ABA Press, and really what it is, is a guide for lawyers on avoiding the kind of pitfalls from an ethical standpoint that they can get into when using social media.

Rocky Dhir: It sounds like a movie on the lifetime network.

John Browning: Yeah, it probably could be.

Rocky Dhir: Yeah.

John Browning: Like Unfriended or something like that.

Rocky Dhir: There we go, yes, and it could be about three people in the unfriending, and we’re just all kinds of creativity today, isn’t it?

John Browning: Yeah, exactly.

Rocky Dhir: So, what in your research have lawyers kind of been tripping up on when it comes to social media and their use of that?

John Browning: Well, pretty much every single way lawyers can use social media in their practice provides an avenue for misuse.

Rocky Dhir: That’s comforting.

John Browning: Yeah, unfortunately. And lawyers just need to be aware of the fact that the same ethical rules are going to apply to these somewhat less traditional modes of communication.

In other words, if it’s something that you wouldn’t say in a Bar Association speech, or publishing a pleading, you should probably not tweet it or post it on Facebook. And lawyers have run into ethical issues even when they’re not using it in kind of a more direct way, like investigating a case or a witness in just publicizing an ongoing case, for example.

There was a lawyer — two lawyers actually, trying a big pharmaceutical case against the makers of Xarelto.

Rocky Dhir: Okay.

John Browning: Xarelto is made by a German-based company Bayer and these lawyers were on Instagram during the trial using the #killinnazis. Now, this was a reference to both the Quentin Tarantino movie, ‘Inglourious Basterds’.

Rocky Dhir: Right, sure.

John Browning: But they were deliberately showing pictures of the courtroom Instagramming photos of the courtroom with that hashtag supposedly in an effort to, as the defense claimed, link the Nazi atrocities with the German manufacturer, and it was assailed by the defense attorneys as a xenophobic strategy, and among other reasons this was one of several things cited when the judge later threw out a $27.08 million trial verdict.

(00:05:11)

And he later disciplined the two attorneys in the case of, one, find her and also sentenced her to do a pro bono and CLE, and with another attorney, he revoked the pro hac vice admission of that out of state attorney to practice in that court, and that was in Philadelphia.

Rocky Dhir: So, I guess the first thing goes through my head, I’ll be honest with you is, it’s not so much the ethical issues and what the ethical violations were, it’s more — this is something I wouldn’t write even if there was no ethical rule.

John Browning: It’s poor judgment.

Rocky Dhir: Absolutely.

John Browning: Yeah.

Rocky Dhir: It’s like somehow in their heads they thought it’s okay to take their German base and equate that to Nazism. I mean, have you gotten any insight into what’s going through people’s minds when they’re posting these social media —

John Browning: Well, the law firm of one of the attorneys involved was actually actively using that hashtag and those Instagram posts in promoting their firm. They were using it as part of their firm’s promotional strategy, which the judge called a terrible reflection on our profession.

Rocky Dhir: Another statement.

John Browning: Yeah, and lawyers struggle just to keep with the whole Instagram as an example. Lawyers struggle with other aspects, other ethical duties such as candor — the duty of candor to the tribunal.

One lawyer in New York was involved with a case and this was a labor and employment case, had missed a deadline on filing a particular pleading and later sought an extension and his grounds for seeking the extension had said, hey, I’ve been out of the country caring for a sick mother.

Well, unfortunately, for this lawyer —

Rocky Dhir: I think we see where this is going.

John Browning: Yep. Opposing counsel both owned a calendar and was social media-savvy and he looked at the Instagram post of that lawyer and at the same time that she supposedly was away caring for the sick mother, her Instagram account showed her having fun visiting art galleries, going to bars and Miami, having Thanksgiving dinner in another city, anywhere but where she claimed that she was supposed to be.

The lawyers, the defense attorneys confronted the court with this revelation. Judge was not amused sanctioned that attorney, not only denied the request for the extension, but sanctioned that attorney $10,000.

So, a pretty expensive lesson to learn about using Instagram and duty of candor to the court.

Rocky Dhir: You think lawyers would know better though, right? I mean, you think they would figure that you’ve got an opposing counsel who chances are will notice this?

John Browning: You would think, but I think that for a lot of lawyers there seems to be this sense of — misplaced sense of security and anonymity in using the Internet and it really should be anything but — it’s a little like a two-year-old throwing a blanket over his head and saying, I’m invisible. Well, you can’t see us, but we can see you.

Rocky Dhir: I still do that, John; I mean, there’s no need to cast aspersions, I mean, I’m the host of the show and here we are, you’re telling me that doesn’t work; I mean, come on.

John Browning: Yeah.

Rocky Dhir: A little sensitivity.

John Browning: And there’s no Santa Claus.

Rocky Dhir: For all you kids listening, don’t listen to this man. He is the Pennoyer in the Foyer.

John Browning: I am, I am.

Rocky Dhir: So, let’s talk for a second then about this dichotomy, because on the one hand we hear that social media can be a great tool, lawyers need to embrace it when they are branding themselves and telling their stories, but then on the other hand we see lawyers telling their stories and then getting slapped on the wrist or thumped on the head. How do you sort of traverse those two worlds?

John Browning: Yeah, it is kind of a dichotomy there and lawyers tell me, particularly after seeing a CLE that I’ve given or after reading an article I’ve written, so you know what, I’m just going to stay away from social media, but there’s a problem with that because we have a duty, and in fact, the State of Texas recently, the Board approved a resolution that was promulgated by among other groups, the computer and technology section of the State Bar, about adopting what 31 other states already had and that is a revised version of the one of the rules of professional conduct involving a duty of competency that includes a duty to be conversant in both the benefits and risks of technology.

So, no more Caveman lawyer, no more Luddite lawyer, and so for lawyers to just stick their head in the sand and say, you know what, a best way to avoid this sort of ethical quandary is just to not use or be involved with social media.

I think that’s throwing the baby out with the bathwater. You really do have a responsibility from a competence standpoint to be conversant in this, but we also part of that competence involves being aware of the fact that there are ethical risks posed by certain types of misuse.

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Rocky Dhir: But then, if I’m a lawyer and I decide, I don’t want to have a LinkedIn profile or a Twitter handle, I don’t want to be on Facebook or on Instagram, I want to issue all of that, maybe have email because that seems to be all the rage these days, right?

John Browning: All the cool kids are doing it.

Rocky Dhir: Yeah. It’s a newest thing, and there’s even these phones that fit in your pocket. It’s crazy, all these doohickeys. But, if I’m a lawyer and I decide I don’t want to have a social media presence, are you saying that now the State Bar rules are effectively saying I have to have a social media presence?

John Browning: Well, they’re not requiring a social media presence per se, but they will be requiring as 31 other states and the ABA has required to have some sense of being conversant in the benefits and risk of technology.

Now, this can encompass a whole host of things besides being aware of the fact that, hey, there’s a lot of valuable information that can benefit your client or pose certain risks for your client when it comes to social media.

In a number of states where they already have addressed in the form of ethics opinions, attorneys’ use of social media they’ve said that this really is a part of being competent in one’s representation of one’s clients being aware so that you can advise your client, hey, if you post this that’s going to hurt our case or being aware of the fact that the other side may have some things that are damaging to their case that they’ve posted.

So being aware of it and the use of it is really something attorneys should be aware of, whether or not they have their own social media presence, that’s up to them, that’s their choice.

Personally, I think they’re missing out because, obviously, I’ve seen the benefits of being on Facebook, being on Twitter, from an attorney promotional standpoint as well as from a professional use standpoint.

Rocky Dhir: So then because you are on Facebook, Twitter and LinkedIn and so on and so forth, how do you make that determination as to what’s okay to post what is safe to post versus where are you carrying some risk? Because, look, theoretically anything you post could boomerang on you even if you’re being completely good-faith about it, right?

John Browning: Sure. I’ll tell you, Rocky, I’ve walked into a mediation one time and had something that I had posted, it was sharing an article I had written that the other lawyer felt helped his case, helped certain — certain underscore certain legal points that he was trying to make. Of course, in that instance he probably didn’t read my whole article because I actually think it helped my case, but these things are going to happen. So, you have to be aware of it, but I think that’s just part of the price you pay. That’s part and partial of having a social media presence and being social media savvy.

Rocky Dhir: Well, the example you gave would be probably akin to giving a CLE talk and providing materials in that CLE talk and somebody says, well, I heard your talk and you said X and now you’re saying Y. So, you actually support my case, Mr. Browning, right?

John Browning: I’ve actually had — I’ve walked into a hearing where in an employment dispute, a non-compete, the opposing attorney was trying to cite a certain resource in support of his argument, what he didn’t realize was he didn’t take a look at who the author was and I happened to write the chapter on non-competes for that particular legal treatise on Texas employment law. The judge knew this, I knew this, opposing counsel didn’t know this even while he was attempting to cite it and the judge himself chuckled and said, you might want to read the rest of what Mr. Browning wrote, and then he ruled for me, so.

Rocky Dhir: That sounds like you just made that story up, I get the feeling.

John Browning: I wish.

Rocky Dhir: Yeah.

John Browning: Stranger than fiction.

Rocky Dhir: I don’t think you could have written that, but maybe you could write that in your upcoming thriller novel for the kids.

John Browning: There you go.

Rocky Dhir: Your upcoming children’s thriller novel. So, now let’s talk for a second, you’ve been writing for a number of years now about social media?

John Browning: Sure. Yeah, book number four and —

Rocky Dhir: You’re just out to make the —

John Browning: — about 35 law review articles, hundreds of others, yeah.

Rocky Dhir: Okay, keep going, keep going. Anything else? Did you win the Pulitzer?

John Browning: I got nominated.

Rocky Dhir: Did you really?

John Browning: Yeah.

Rocky Dhir: Oh wow. For which article?

John Browning: Actually, I wrote a syndicated newspaper column called “Legally Speaking” for a number of years, ran in papers throughout Texas and I wrote —

Rocky Dhir: I remember that. Yes.

John Browning: I wrote a series of articles about the enduring legacy of racial violence, past racial violence like lynching’s on small Texas communities.

Rocky Dhir: Wow.

John Browning: And that series of articles which talked about various ones, some not very well-known, but which had lingering effects was selected or the series was nominated back in I think it was 2007 for the Pulitzer in local reporting. I didn’t win. I think I was one of about a 148 people nominated, who did not win and was not a finalist, but —

Rocky Dhir: Are you little bitter?

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John Browning: No, no, believe me, for that, it was kind of like the honor is getting the nomination.

Rocky Dhir: Did you get to walk on a red carpet?

John Browning: Not for that but for other ones. I mean, I’ve won a number of writing awards, so that’s very nice.

Rocky Dhir: When you walk on the red carpet, do you like wear a certain designer, do you say like, I’m wearing Oscar de la Renta?

John Browning: Who you are wearing.

Rocky Dhir: Exactly.

John Browning: Yeah, no, although when I won the Burton Award, one of the years that I won that in Washington DC, they presented the Library of Congress, usually US Supreme Court justice presents the award. I attended and got to walk on the red carpet. It’s a black tie event and the actress Jane Krakowski from ‘30 Rock’ and —

Rocky Dhir: Oh yeah, sure.

John Browning: Yeah, she was there because the guy behind Ally McBeal and Boston Legal and those shows was being honored as well for legal writing in for television. And she was there and she needed someone to escort her on the red carpet. I happened to walk out there, all by my lonesome, wearing my Texas flag motif tie and cummerbund set and my full quill ostrich boots and I guess I looked very Texasee. So, Jane Krakowski said, give me your arm. So that was kind of nice.

Rocky Dhir: Wow. You got to escort an actress on the red carpet.

John Browning: I did, I did. Of course as soon as that was done, I think she distanced herself from me as far as possible, which is entirely understandable.

Rocky Dhir: You still understand though how all of these events it kind of makes your life sound a little Forrest Gump-ish, it’s like everything just kind of cool happens to you.

John Browning: It was at that ceremony that Chief Justice Roberts paid me what I’m pretty sure was a compliment. He knew what I apparently won the award for and he said, I guess you don’t write like a lawyer and —

Rocky Dhir: That’s a compliment.

John Browning: — I said, no, Mr. Chief Justice, I guess I don’t and he said, I mean that as a compliment, and I said, I take it that way.

Rocky Dhir: That is a very good compliment.

John Browning: Yeah.

Rocky Dhir: Are you the owner of the Bubba Gump Shrimp & Company?

John Browning: No.

Rocky Dhir: Because that will be the only thing you need to complete the story to make this a truly, truly epic for us.

John Browning: I guess, I have to say that in my Forrest Gump voice like I’m not a broadband.

Rocky Dhir: We can have all kinds of shrimp. I can be Bubba, you can be Forrest.

John Browning: There we go.

Rocky Dhir: That could be a future podcast.

John Browning: Shrimp and rice, boiled shrimps.

Rocky Dhir: That’s right.

John Browning: Yeah.

Rocky Dhir: All we need is a third person to be Lieutenant Dan who need a Jenny.

John Browning: That’s right. There you go.

Rocky Dhir: We can recruit and bring some people in.

John Browning: We’d be like peas and carrots.

Rocky Dhir: So, here’s something I want to maybe talk about on a future podcast, maybe we can talk about this someday and maybe you can — I don’t know if you’ve looked into this at all. Artificial Intelligence, everybody is talking about that in the law these days, is there —

John Browning: Are the robots coming to steal our jobs?

Rocky Dhir: Right, that’s part of it and then can the robots enhance our jobs, have you thought anything about that?

John Browning: I have, as a matter of fact, two things. Today, I’ll be speaking as part of a panel on Artificial Intelligence and how it’s impacting the legal profession.

Rocky Dhir: Okay.

John Browning: How it’s impacting things like legal research, contract, analytics things like that.

Rocky Dhir: Sure, sure.

John Browning: Last year I was part of a symposium at Texas A&M Law School, one of the first symposia in the country about AI and its impact on the law and I’ve got a forthcoming Law Review article on that. And I’ve actually started working on an article for a journal on robotics, artificial intelligence and the law, on the civil and criminal liability issues and questions, posed by what happens when things go wrong,

Like, when a robot in an auto factory, for example, kills someone. What happens when a driverless car runs someone over? These are issues that the law is going to have to grapple with and what sort of theories are pursued? Is it a product liability theory? Is it a vicarious liability theory against the employer?

These are all things that are very much part of a still evolving landscape in the law.

Rocky Dhir: Would you be willing to come back and talk to us about that?

John Browning: I’d love to Rocky.

Rocky Dhir: Those sound like some interesting topics.

John Browning: Anytime I can in my 50s, channel my inner nine-year-old and write about killer robots, I’m happy to do that.

Rocky Dhir: I think you’ve been working your whole life for this moment.

John Browning: Pretty much.

Rocky Dhir: Yeah, yeah, it’s all been leading up to this.

John Browning: Exactly.

Rocky Dhir: Well, John, it’s always a pleasure to have you. We always have a lot of fun together and our follow up on AI is going to be epic.

John Browning: I hope so. I look forward to it.

Rocky Dhir: And we do need to give some serious thought to this Forrest Gump-themed session. We need to see how it can just work?

John Browning: I’ve had some pretty amazing things happen and I’m still a little mystified by some of it.

Rocky Dhir: All kidding aside, you’ve earned it. You’re a fantastic lawyer and it’s been a pleasure having you here. Thank you for listening by the way. John is a great guy.

If you want to reach out to John you want to learn a little bit more about what he does.

John, what’s the best way for people to get a hold of you?

John Browning: Well, my law firm website, Passman & Jones, so www.passmanjones.com and my email address browningj@passmanjones.com.

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Rocky Dhir: And you’d welcome people reaching out with questions —

John Browning: Absolutely, I get questions all the time from lawyers all over the country.

Rocky Dhir: And you’re traveling all the time.

John Browning: And judges.

Rocky Dhir: You’re traveling all the time, you can probably go meet people if you’re in their city or something, they probably want to — there is a celebrity factor.

John Browning: Yeah, I don’t think that’s going to happen too much, but I already travel too much.

Rocky Dhir: Paparazzi, do they follow you around?

John Browning: No.

Rocky Dhir: Maybe they will after this.

John Browning: I look in a mirror every day, Rocky, so.

Rocky Dhir: I’ve got a face for podcasting, let’s just say. So, again, John, thank you for being with us.

John Browning: It’s been a pleasure.

Rocky Dhir: Pleasure to have you here, and thank you for listening to the State Bar of Texas Podcast in partnership with Legal Talk Network.

If you liked what you heard today, please find us and rate us on Apple Podcasts, on Google Play or on your favorite podcast app; and guys, thank you for joining us; after all, life’s a journey, tune in.

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Outro: If you’d like more information about today’s show, please visit legaltalknetwork.com. Go to texasbar.com/podcast. Subscribe via Apple Podcasts and RSS. Find both, the State Bar of Texas and Legal Talk Network on Twitter, Facebook, and LinkedIn or download the free app from Legal Talk Network in Google Play and iTunes.

The views expressed by the participants of this program are their own and do not represent the views of nor are they endorsed by the State Bar of Texas, Legal Talk Network, or their respective officers, directors, employees, agents, representatives, shareholders, or subsidiaries. None of the content should be considered legal advice. As always, consult a lawyer.

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