Bench Bar Conference 2013

Transcription

1 Bench Bar Conference 2013 The Coming Storm: Social Media, Online Comments, Blogging and the Courts James A. Brown, Liskow & Lewis, Moderator The Hon. James J. Brady, United States District Court, Middle District of LA The Hon. Michael G. Bagneris, Orleans Civil District Court The Hon. Camille G. Buras, Orleans Criminal District Court Richard C. Stanley, Stanley, Reuter, Ross, Thornton and Alford, LLC Course Number: Hours of CLE Saturday, April 20, :00 am 10:30 am Beau Rivage Resort and Casino Biloxi, Mississippi

2 THE HON. MICHAEL G. BAGNERIS Judge Orleans Parish Civil District Court Judge Michael G. Bagneris is a proud native of New Orleans. He attended St. Augustine High School where he graduated 4th in his class. He went on to Yale University where he received two B.A. degrees, one in American History and the other in African-American History. In 1975, he received his J.D. from Tulane Law School. While in law school, Judge Bagneris clerked for the Law Firm of Fine & Waltzer, and became an associate upon graduation; in 1979, he became a partner and the firm was renamed Fine, Waltzer & Bagneris; in 1980 he became Executive Counsel to Mayor Ernest Dutch Morial; in 1986, he returned to his law practice at Waltzer & Bagneris; and in 1993, he was elected to his current post in the Orleans Parish Civil District Court. As a judicial educator, Judge Bagneris lectures extensively, primarily on evidence, personal injury, legal experts, ethics, and professionalism; he serves as a Bar Examiner for the Louisiana State Bar, a member of the Louisiana Judicial College, Supreme Court Ethics Committee, and Supreme Court Pro Se Litigation Committee. Judge Bagneris is a member of numerous professional and civic organizations, including the American Bar Association, American Judges Association, Jazz & Heritage Festival Foundation, Judicial Council-NBA, Louis A. Martinet Society, Louisiana District Judges Association, Louisiana Judicial Council-NBA, Louisiana State Bar Association, NAACP, National Bar Association, New Orleans Bar Association, New Orleans Museum of Art, and Pro Bono Project.

3 JAMES J. BRADY UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA 777 Florida Street, Suite 369 Baton Rouge, Louisiana Phone: Facsimile: Judge James J. Jim Brady received an undergraduate degree in history from Southeastern Louisiana University in Hammond, Louisiana in 1966 and a Juris Doctorate degree from the Louisiana State University Law School in Jim served as president of the student body for Southeastern Louisiana University and was president of the Louisiana State University Law School student body. He was a four year letterman in varsity track at Southeastern. He was named the outstanding senior in the Louisiana State University Law School class of 1969, and was a charter member of the Louisiana State University Law Center Hall of Fame in In 1995, he was named Alumnus of the Year by Southeastern Louisiana University and received an honorary Doctorate of Humanities Degree from that institution. Jim was associated or in partnership with Camille F. Gravel in the practice of law for twenty-three years, in the firm of Gravel, Brady & Berrigan or its predecessor firms with offices in Alexandria, Baton Rouge and New Orleans, Louisiana. On January 1, 1993, Jim became a partner in the Washington, D.C. firm of Dyer, Ellis, Joseph & Mills. In March of 1996, he became a Director in the New Orleans firm of Sullivan, Stolier and Daigle; Jim was the resident Director of the firm s Baton Rouge office. In August of 1997, Jim joined the firm of Gordon, Arata, McCollam, Duplantis & Eagan where he was the senior partner of the firm s Baton Rouge office. He was nominated to the federal bench by President William J. Clinton in July of 1999 and was confirmed by the U.S. Senate on May 24, In the past Jim has served as a member of the Louisiana State Board of Tax Appeals and was Counsel to the Louisiana Joint State Senate and House Committee on Reapportionment. He has, at various times, served as an adjunct instructor in political science at Louisiana State University in Alexandria, Louisiana. Jim was elected to the Democratic State Central Committee of Louisiana (Louisiana Democratic Party) in In 1975, he was elected vice chair and served in that position until 1985 when he was elected chairman. He was re-elected Chairman in 1987 and in 1991 for four year terms. He was a member of the Association of State Democratic Chairs which is composed of the chair and vice chair of the Democratic Party in each state and territory. In 1991, he was elected president of that association and by virtue thereof was designated as a Vice Chair of the Democratic National Committee. He was re-elected to a second two-year term as President of the Association in 1993 and a third two-year term in 1995, thus becoming the first person so honored in the Associations thirty-five year history. He was a delegate to the Democratic National Mid-term Conference in 1974 and has been a delegate to each Democratic National Convention from He is active in the Federal Judges Association of which he currently serves as a member of the Association s Board of Directors, and the Fifth Circuit District Judges Association of which he currently serves as Past President. Judge Brady is a frequent lecturer or panelist at legal seminars and functions. He and his wife Karen have been married since 1967 and they have two children, Sean and

4 Kathleen and two grandchildren.

5 James A. Brown Liskow & Lewis, PLC 50th Floor, One Shell Square New Orleans, LA ph: (504) Fax: (504) E mail: Jabrown@liskow.com Firm url: James A. Brown is a shareholder with the New Orleans law firm of Liskow & Lewis, P.L.C., and heads the firm s Commercial Litigation Section as well as its Professional Liability Practice Group. He also serves as the the firm s Loss Prevention Partner and formerly served on the Board of Directors. His practice focuses on complex commercial and professional liability litigation, including commercial disputes, class action litigation, director and officer liability litigation, legal and accountant malpractice defense, trustee liability, and similar matters. Mr. Brown is a Fellow of the American College of Trial Lawyers. He is ranked among America s leading commercial litigators by Chambers and Partners USA Client Guide. He is listed in The Best Lawyers in America in the fields of Bet-the-Company Litigation, Commercial Litigation, Legal Malpractice Defense, and Professional Malpractice Law. He also is included in New Orleans Magazine s listing of Top Lawyers. He has been designated one of New Orleans Leaders in Law by New Orleans City Business Magazine. He is listed in Louisiana Super Lawyers and in Benchmark Litigation. He is the former co-chair of the American Bar Association Professional Liability Litigation Committee. Mr. Brown is an adjunct professor of trial advocacy and torts at the Louisiana State University Law Center and is a member of the New Orleans, Louisiana, and American Bar Associations. He speaks and publishes regularly on issues of professional liability, ethics and fiduciary responsibility. He also is active in various professional, community and philanthropic affairs. Mr. Brown received his B.A. degree, summa cum laude and valedictorian, from Louisiana State University in He received his J.D. from the LSU Law Center in He is a member of various honorary societies, including Order of the Coif and Who s Who in American Law. He served as Editor-in-Chief of Volume 44 of the Louisiana Law Review and as law clerk to the Honorable Alvin B. Rubin, Circuit Judge, United States Fifth Circuit Court of Appeals, Mr. Brown and his wife of 30 years, Kelly, have three sons and one daughter-in-law. bio.brown.docx

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10 Richard C. Stanley concentrates his practice in commercial litigation at the trial and appellate levels, and also in the representation of lawyers and law firms in legal ethics, malpractice and disciplinary matters. Mr. Stanley established the law firm of Stanley, Reuter, Ross, Thornton & Alford, L.L.C. in Previously, Mr. Stanley was a partner in the New Orleans firm of Stone, Pigman, Walther, Wittmann, L.L.C. Mr. Stanley received his B.A. from Louisiana State University summa cum laude and his J.D. from Harvard Law School cum laude. Upon graduation from law school, he served as a law clerk to the late Hon. Albert Tate, Jr. on the United States Fifth Circuit Court of Appeals. Since 1985, he has taught on the adjunct faculty of Tulane Law School, including courses in Legal Ethics, Professional Responsibility Seminar, and Criminal Process and Practice. Since 1996, he has been a member of the faculty for Trial Advocacy for Tulane Law School. In addition, Mr. Stanley has published articles on topics in constitutional law and antitrust law, acted as a speaker on numerous occasions on ethics topics for continuing legal education programs, and has participated as an Instructor in Constitutional Law for BAR/BRI.

11 Social Media/Cyber Ethics Hypotheticals for the Audience The Above the Law website is monitoring a high profile jury trial. A law firm associate who is monitoring the trial, but is not enrolled in the case, posts anonymous comments on the website about the trial, merits issues, and the performances of the trial lawyers handling the case, including the associate s senior partner. On evening breaks during the trial, a juror googles the name of the trial, finds the website, and starts following the associate s anonymous comments on the website. The law firm s client wins the case. After the trial, the juror discloses these facts to the losing trial lawyer in a court-permitted post-verdict interview, and indicates that the website comments were well written. The losing trial lawyer moves for new trial based on this information. Upon review of the posted comments, the winning trial lawyer suspects that his associate was the source of the comments due to the content and style of the comments. Must the winning trial lawyer disclose what he knows to the court and opposing counsel? Is the associate subject to professional and/or court discipline if he remains silent on the matter? Is he subject to discipline even if he admits to the postings? Is this grounds for a new trial? Rules 3.3, 3.5, 3.6, 8.4(d). An attorney posts opinions about his opposing counsel and several judges on his private Facebook page, some of which are derogatory. The attorney has 300 friends who can review the comments. Is the lawyer subject to ethical sanction or court discipline? Rules 8.2, 8.4(d); Louisiana Code of Civ. P. Art Does the lawyer enjoy First Amendment protections for these posts? How does this differ from statements made at a cocktail party at the lawyer s house? Does it make a difference if the statements are made in connection with an ongoing trial? Rule 3.6. You are working with a jury consultant in preparation for a jury trial. Before trial, may the consultant review prospective jurors public Facebook pages or other public social network posts/comments/blogs? May the consultant do so during the trial? After the trial? Before trial, may the consultant seek to friend the prospective juror in order to obtain access to his private Facebook page? Rules 3.5, 4.4. A prospective juror s Facebook page has a privacy setting that enables the viewer to identify the prospective juror s friends. The prospective juror has about 500 friends. May your consultant contact one or more of the juror s friends and ask them to provide information from the juror s Facebook page? Before trial? During trial? Rules 3.5; 4.4, 8.4(d). Same hypothetical regarding an opposing party. May you, without informing opposing counsel, contact your opposing party s friends and ask them to feed you information from the party s private Facebook page, some of which information could be used for impeachment? Before trial? During trial? Rules 4.2, 4.4. What if one of the opponent s friends unilaterally transmits to you information from the opponent s private Facebook page during trial? Must you notify opposing counsel? Can you spring it on your opponent during cross? Cyberethics Hypotheticals.DOCX

12 To what extent are the above practices acceptable in order to develop impeachment evidence against an opposing expert? Rule 4.4. Could you use a document request to require the opposing party to permit inspection of his Facebook page or twitter account? Could you subpoena the opposing expert s Facebook page or twitter account? Could you successfully move the Court to order a litigation hold on the opposing party s or expert s Facebook page or twitter account, barring the party or expert from deleting information? Cyberethics Hypotheticals.DOCX -2-

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