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).
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.
This picture is taken with two of my law school classmates - Mark Bentley and Jim Phillips - who work in the General Counsel’s office of the University of Texas system in Austin. I met them for a visit this week, and also with the knowledge that the picture below would end up on the appropriate Facebook walls. Indeed, Mark had it up while we were just beginning our visit in Jim’s office downtown after taking the picture at the Capitol.
There may be bills about Facebook pending before the legislature now; I do not know. But I do know a whole lot about the bills that have been filed that affect Family Law.
I spent the week in Austin as a volunteer lobbyist for the Texas Family Law Foundation to help good legislation to be promulgated by the legislature. Experienced family law attorneys volunteer to spend a week in Austin to aid with that effort. Sometimes bills will be heard before the Judiciary & Civil Jurisprudence Committee of the House or before the Jurisprudence Committee of the Senate. During the 2011 session, I testified before both the House and the Senate committees. I refer to the week that I, along with Heather King and Charla Bradshaw, testified as the “Superbowl” week of the 2011 session for Family Law, as the Fraud on the Community bill, the Alimony bill, and the Paternity Fraud bill all had hearings that week. Those three bills, all of which became law, were a main part of the Family Law Section’s - and Foundation’s - 2011 legislative package.
This week in February 2013 found the committees of the Senate and House just getting organized and not yet conducting hearings on bills. So my job this week was to assist the Foundation’s lobbyists, Steve Bresnan and Glenn DeShields, in reviewing bills and explaining some bills to either the staff of the committees, to the legislative aides of senators or representatives, or, in fact, to legislators themselves.
Steve would talk to the appropriate party, and would arrange a meeting . We would explain our request for refinement, clarification or express our concerns about a bill. I believe that the Texas Family Law Foundation and its lobbyists are well respected in Austin, due in part to the fact that the Family Law Bar speaks with one voice. Not to mention skilled and knowledgeable lobbyists.
An example is that a certain legislator’s bill would have caused an impermissible retroactive modification of a family law judgment. Steve notified the legislator’s staff of our concerns and arranged a meeting with the legislator and we were accompanied by a member of the Attorney General’s staff to the meeting. After our visit and by the end of the day, we were able to suggest insertions and deletions into the bill with which the legislator, the AG’s represenative and the Foundation were all very comfortable.
So not only did I get to see how “sausage is made” but I got to participate just a little bit in that process. And hopefully made for a little bit better sausage.
Mark Bentley, Jim Phillips, Ken Raggio, UT School of Law class of 1974
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.
Ken Raggio presented a paper and spoke to the Texas Bar CLE conference: Family Law Technology Couse: From No Tech to High Tech in Two Days held in Austin, TX.
Raggio's presentation was: Being the "Lincoln Lawyer"-Law Practice Management on the Road. The title was inspired the movie Lincoln Lawyer where Matthew McConaughey played a lawyer who practiced out of his car as he was driven from courthouse to courthouse.
Raggio infused the live presentation with clips from the movie to highlight points made in the paper. A major takeaway for the audience was that certain law practices may not be required to be physically located, and that all information and other necessaries could travel with--or be available to-- the lawyer, wherever the lawyer may be.