Social Media Reputation, Employee Complaints, the NLRB, and Chipotle

The National Labor Relations Board recently upheld a decision by an administrative law judge against Chipotle that ruled the company violated an employee's right to complain about his job when it required him delete tweets that were critical of the company and then subsequently fired him.  

The employee deleted some personal tweets after Chipotle's national social-media strategist saw them in January 2015. According to The New York Daily News, one of the offending posts stated: 

@ChipotleTweets, nothing is free, only cheap #labor.  Crew members make only $8.50hr how much is that steak bowl really?

How did Chipotle's national social media strategist identify that the Twitter account that had the offending Tweets came from one of its employees?  Did the employee identify himself as such? Why would the social media strategist think this tweet or group of tweets was so offending that it needed to ensure that the Tweets were deleted?  Did the social media strategist realize that his/her actions had the potential to create a social media crisis? 

Chipotle's social media strategist's actions led to tremendous legal bills for the company and numerous negative articles about the company's social media policy. One take away is that too many "social media experts" do not understand how to properly draft, implement or follow corporate social media policies.  

Many "social media experts" have never had the proper training on how to handle this type of situation and how to avoid a social media crisis.  In this case, the best path forward after seeing one or more negative tweets would have been to ignore it/them.  It would have saved the company tens if not hundreds of thousands of dollars in legal and other related costs.

Copyright 2016 by Bradley S. Shear, Esq. All rights reserved.   

Email Privacy Act: Much Needed Reform

In general, the government should be required to obtain a warrant in order to access the private password protected digital accounts of its citizens.  Unfortunately, due to an outdated law, the Electronic Communications Privacy Act of 1986 (ECPA) this is not the case.

The ubiquitous nature of online communications has made updating the law to account for how technology has changed over the past 30 years a necessity to ensure that our 4th amendment rights in the virtual world equal our 4th amendment rights in the physical world.  A Congressional hearing on the Email Privacy Act will be held this week to try to update the woefully out of date ECPA statute.  Multiple efforts over the years have failed so I am cautiously optimistic that this effort and others such as the LEADS Act which complement this bill will be passed this term.

The Email Privacy Act has more than 300 cosponsors in the House of Representatives and it would close a glaring loophole in ECPA which enables the government to utilize a subpoena instead of a warrant to require digital service providers to provide their customer's digital communications if they are greater than 180 days old.  When ECPA was enacted in 1986, this loophole wasn't concerning because our technology wasn't such that we could hold years of personal communications in an email account stored in the cloud around the world.

According to a recent poll by Vox Populi, 77% of 1000 registered voters said "a warrant should be required to access emails, photos and other private communications stored online." This super majority demonstrates the importance of this issue and that Congress should listen to the voters to rectify this glaring hole in our 4th amendment protections.

In order for the Email Privacy Act to became law, it is imperative to contact your local members of Congress to tell them about the importance of this issue.  Absent public support, Congress doesn't act. Therefore, if you believe that our 4th amendment protections should extend to our digital activities please take a stand and urge your representatives and senators to support the much needed Email Privacy Act.

Copyright 2015 by The Law Office of Bradley S. Shear, LLC All rights reserved.

Did Volkswagen Violate the Computer Fraud and Abuse Act?

I was very troubled to learn that Volkswagen has been intentionally misleading consumers, governments, and other industry members about its cars' emissions.  This was obviously an attempt engineered to steal market share away from its competitors, harm consumers, and mislead governments about its practices.  As a former Volkswagen owner, I am outraged by this behavior.

When I recently took my car to have its bi-annual emissions inspection in Maryland, I wondered if the inspection was still really needed because I was under the impression that all cars today adhere to the EPA's emissions standards.  Obviously, Volkswagen's intentionally reckless and illegal behavior will ensure that state emissions testing programs will continue on for years to come.
    
There are potential FTC Article 5 unfair and deceptive trade practice and state consumer protection violations here.  In addition, it wouldn't surprise me if there are multi-billion dollar class action lawsuits filed.  However, one legal issue that has been largely overlooked is that it appears Volkswagen hacked its own car software for monetary gain.

Investigative Journalist Bob Sullivan was the first reporter to discuss the hacking issue in the proper context.  In a recent article he stated, the "Volkswagen story should be the beginning of some really serious soul searching, perhaps even a turning point for the Internet of Things.  It’s inevitable: our light bulbs, toasters, door bells, and our cars will all communicate some day soon.  We need a rock-solid ethic — not just laws, but a social morality — that machines should never do things unless people know all about them."

Did Volkswagen violate the Computer Fraud and Abuse Act by intentionally accessing software without car owners' knowledge or consent?  Did it also violate multiple state computer access/hacking laws?

While its too soon to speculate on all of the fallout that will occur, I believe this matter will bring more attention to computer/digital crimes, the Internet of Things, and the privacy and cyber security issues inherent.  My hope is that federal and state authorities make an example out of Volkswagen so other companies are less inclined to follow the same path.

Copyright 2015 by The Law Office of Bradley S. Shear, LLC All rights reserved.  

French Police Told To Erase Social Media Profiles

According to CNN, "French law enforcement officers have been told to erase their social media presence and to carry their weapons at all times because terror sleeper cells have been activated over the last 24 hours in the country".  The Charlie Hebdo terrorist attack and subsequent terrorist attacks on civilian targets in France have led the police to rethink cyber safety and security in the country.

The order to erase social media profiles in France is not unique.  Last November, UK police officers were told not to discuss their jobs on social media.  In 2009, the Pentagon mulled banning soldiers using social media and in 2011 China banned its soldiers from using social media.  

I believe it is time for the U.S. military, federal and state government agencies, and law enforcement officials re-evaluate their social media policies.  Privacy is not just cool but a necessity for personal safety and national security. 

Too many self-described social media experts/consultants/ninjas/gurus/etc....are telling people how important it is to create detailed public LinkedIn profiles, share your most personal information on Facebook, Google+, Instagram, Twitter, etc...  Some of the phrases these "experts" utilize when providing their advice include, "social media is about a conversation", "be authentic", "sharing is caring", etc...  Don't trust any social media consultant who shares too much personal information online and/or uses Twitter or other digital platforms to have regular public conversations.

It is time for Internet users to re-evaluate their relationship with social media and digital platforms that are not created with a privacy first mentality.  Privacy is hip and in because sharing too much may destroy your reputation, get you fired, or get you killed.  Therefore, you need to ask yourself if its time to limit or erase any of your social media profiles.   

Copyright 2015 by Shear Law, LLC All rights reserved.

Facebook's Expanded Behavioral Advertising Further Erodes User Privacy

According to the Wall Street Journal, "Facebook will soon begin using data it collects about users’ activities around the Web to better target ads on its service.....[f]or years Facebook has dropped small pieces of code on websites and in mobile apps, through which it records users’ browsing habits and online interests. Now it’s going to start using that information to help it deliver personalized ads on Facebook."

The term "personalized ads" means behavioral advertising.  In layman's term, Facebook acts like a private NSA; however, instead of using the digital information it collects about you to protect against terrorist attacks, Facebook uses the data you post and gleaned from your digital activity (posts, messages, and now websites visited, etc...) to make money.  The information Facebook collects about you may also assist foreign hostile governments who legally or illegally acquire access to Facebook's systems.   

About a year ago, Advertising Age reported that Facebook inked agreements with multiple data brokers to mine the personal digital information of users.  These agreements convinced me that posting personal information on Facebook may contribute to consumer discrimination.  The World Privacy Forum and The White House published recent reports that discussed how some populations may be vulnerable to discriminatory practices based upon large amounts of personal information being bought and sold by data brokers and data sources such as Facebook. 

I don't advise anyone who values their privacy to post personal information to Facebook because it has an abysmal record when it comes to protecting user privacy.  For example, in 2012 Facebook settled charges with the FTC that it deceived consumers by telling them they could keep their information on Facebook private, and then repeatedly allowing it to be shared and made public.

The bottom line is that if you value your privacy be careful what and where you post online. 

Copyright 2014 by Shear Law, LLC.  All rights reserved.

#SocialMediaFail: PayPal director Rakesh Agrawal Departs After Troubling Tweets

Social Media may be utilized to fund raise for philanthropic causes, to crowd source to help catch criminals, and to help unite family members.  Unfortunately, too many people have lost their jobs because of the content they have posted online.   

The latest person who appears to have joined the #SocialMediaFail club is now former PayPal Director Rakesh Agrawal.  According to The Daily Mail, Mr. Agrawal went on a late night Twitter tirade while in New Orleans.  Mr. Agrawal appears to have made some derogatory comments about his co-workers online that became newsworthy very quickly.  While there appears to be some dispute as to the timing of Mr. Agrawal's departure from PayPal; there is no denying that soon after his Tweets appeared he stopped being employed by PayPal. 

New Orleans is one of the most interesting and exciting cities in the world.  I have had the pleasure of visiting the city on many occasions and experiencing some of the fun festivals and events that the city hosts.  However, not everything one does in New Orleans is meant for the entire world to see.  Unfortunately, what goes on in "Vegas (or in New Orleans or anywhere else) stays in Vegas" may no long apply in the Digital Age.

The bottom line is that everyone, including self described "tech/social media experts", "social media consultants", and the "digerati" need to better understand the ramifications of publicly posting personal thoughts and/or images online.  My hope is that those who read about this incident will realize that just because you may have a Twitter account it does not mean you should actively Tweet.

Copyright 2014 by Shear Law, LLC.  All rights reserved.

Digital Miranada Warning: IAC Executive Learns The Hard Way That You Have the Right To Remain Silent Online

Too many people don't understand the power of social media.  Fortune 500 executives, professional athletes, student-athletes, students, entertainers, politicians, etc... have all gotten into hot water because of their digital usage.  I regularly counsel members of these groups about the legal, business, and reputational challengers inherent with social media and other digital communication tools and it pains me whenever I hear about someone posting something online that may destroy their professional career. 

The latest Tweet that has gone viral and may be a career killer was posted on an account allegedly utilized by pr executive Justine Sacco of IAC.  She allegedly wrote while en route to Africa, "Going to Africa. Hope I don't get AIDS.  Just Kidding.  I'm white!"  By the time Ms. Sacco's plane landed, this message on her account went viral and caused a pr nightmare for herself and her employer IAC.

Too many self styled "branding experts", "social media consultants", etc.. advise people to share too many personal opinions online.  I disagree with this advice and generally agree with Mark Twain's adage, " [i]t is better to remain silent and be thought a fool than to open one's mouth and remove all doubt."

It is better to remain silent and be thought a fool than to open one's mouth and remove all doubt.
Read more at http://www.brainyquote.com/quotes/quotes/m/marktwain103535.html#STC0rGBGPI5OUGP7.99

It is better to remain silent and be thought a fool than to open one's mouth and remove all doubt.
Read more at http://www.brainyquote.com/quotes/quotes/m/marktwain103535.html#qG8bQHKbUMwqmy7s.99

It is better to remain silent and be thought a fool than to open one's mouth and remove all doubt.
Read more at http://www.brainyquote.com/quotes/quotes/m/marktwain103535.html#qG8bQHKbUMwqmy7s.99

Internet users may want to learn about my Digital Miranda Warning that is a take off of the criminal law Miranda Warning that suspects are provided. The Miranda Warning states, "You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak with me?"

My Digital Miranda Warning sates, "You have the right to post online.  Anything you post online can and will be used against you by employers, schools, the media, etc....  You have the right not to post online.  If you feel compelled to post, don't upload anything that may make you look unprofessional.  With these rights in mind, do you still wish to post online?"

While my Digital Miranda Warning has saved some of my clients from digital career destruction, my hope is that more people become educated about the risks associated with utilizing social media before their online behavior destroys their reputation.

Copyright 2013 by the Law Office of Bradley S. Shear, LLC All rights reserved.

New California Law Protects Minors From Digital Mistakes

A new California law is leading the way to protect our children's digital privacy.  Earlier today, Gov. Brown signed into SB-568 Privacy: Internet: Minors that will protect the online privacy of those under 18 years of age who reside in the State of California.  According to CA Senate President Pro Tem Darrell Steinberg, the bill's sponsor, the legislation "requires all web sites, social media sites and apps to allow anyone under 18 to remove content they posted earlier."

The new law will become effective as of January 1, 2015.  It has two main provisions. It seeks to protect minors by generally prohibiting operators of digital platforms (such as web sites, online services, online applications, mobile apps, etc...) from knowingly marketing and advertising to a minor a broad range of products specified in the law.  Some of these products may include alcoholic beverages, firearms, ammunition, tobacco products, fireworks, lottery tickets, tattoos, drug paraphernalia.  In addition, the new law requires operators of digital platforms to notify minors of their rights to remove content or information they posted and honor their requests to remove such data, subject to specified conditions and exceptions.

California has become the first state to offer greater digital protections to minors than the recently revised Children's Online Privacy Protection Act.  While SB-568 is a win for the digital privacy of minors, those under 18 should not use this as an excuse to be reckless about their digital lives.  For example, the law does not enable a minor to require a digital platform remove content that another person posts about that minor.  In addition, Internet companies are only required to remove publicly available content a minor posts and not data that is not publicly viewable.

While SB-568 may help protect California minors from some digital mistakes that may harm their ability to gain acceptance into the college of their dreams, it should not replace educating our children about these issues.

Copyright 2013 by the Law Office of Bradley S. Shear, LLC All rights reserved.  

Klout's Algorithm Appears To Be Compromised By Social Media Credential Fraud

Is Klout's algorithm compromised by Social Media Credential Fraud? At this point, it appears that Klout's algorithm is unable to accurately measure influence because it is not able to accurately determine who has real online and/or real world influence due to Social Media Credential Fraud.

According to Klout's website, the factors in its algorithm include: "List inclusions, Follower/Follow Ratio, Followed Back %, Unique Senders, Unique Retweeters, Unique Commenters, Unique Likers, Influence of Followers, Influence of Retweeters and Mentioners, Influence of Friends, Influence of Likers and Commenters.

Follower/Follow Ratio which appears to be a major component of the algorithm is being manipulated by those practicing Social Media Credential Fraud. If the Follower/Follow Ratio can be manipulated, it appears that the Followed Back % is also compromised. On April 26, 2011, Klout's Public Relations Agency (Best Public Relations) informed me that Klout's website was recently relaunched. When I reviewed the relaunched website I noticed that the Follower/Follow Ratio and the Followed Back % were major components of their algorithm. Therefore, I immediately contacted Best Public Relations to let them know that Social Media Credential Fraud is affecting its client's ability to accurately claim that its service is able to measure one's online social influence.

Klout's PR firm responded back to me with a link to Klout's website that did not answer my question so I contacted them again to let them know that this is a very serious issue that has the ability to destroy Klout's credibility. I have not heard back from either Klout's PR firm or from Klout. Therefore, either Klout's PR firm did not relay my message to Klout's senior executives or they decided to look the other way about my concerns.

As Klout and other websites vie to become the modern day Nielsen Ratings for the Social Media Age they will have to find a way to factor Social Media Credential Fraud into their algorithms. Klout needs to follow Google's lead to penalize those who try to game their algorithm. Last year, a company called DecorMyEyes gamed Google's search rankings by intentionally encouraging bad publicity so that the company could obtain a high organic ranking on Google. After a New York Times article on this practice, Google updated its algorithm. Earlier this year, JC Penney was accused of gaming Google's search rankings before last year's Christmas Season and Google subsequently penalized JC Penney for its behavior.

Since Google has the clout to punish those who it deems are acting in an unethical manner to increase their search engine ranking, Klout should do the same for those who are intentionally gaming its algorithm by participating in Social Media Credential Fraud and other forms of misleading and unethical social media behavior to increase their Klout score. I challenge Klout along with the other services who claim to be able to measure online influence to follow Google's lead in penalizing those who to try to game their system.

To learn more about this issue you may contact me at http://shearlaw.com/attorney_profile.

Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Casey Anthony trial demonstrates that U.S. Constitution still matters in the Social Media Age

The Casey Anthony trial demonstrates that the U.S. Constitution still matters in the Social Media Age. Casey Anthony was accused of killing her daughter Caylee Anthony who died under mysterious circumstances in 2008. On July 5, 2011, Casey Anthony was found not guilty of killing Caylee by a jury of her peers since the prosecution did not prove its case beyond a reasonable doubt.

Even though Ms. Anthony was found not guilty she still has lost in the overall scheme of things. Her daughter is dead, she has spent more than 2 years of her life in prison, and she is seen as a monster by some people. Ms. Anthony may ultimately end up earning millions of dollars for her life story but no amount of money can make her whole after the ordeal she has been through.

The State of Florida lost not because of the not guilty verdict but because they most likely spent several million dollars on a case that did not answer who killed Caylee Anthony. It is doubtful that we will ever know who killed Caylee Anthony.

The Sixth Amendment of the U.S. Constitution came out of this trial unscathed. The Bill of Rights states, "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."

Some may argue that the media won while others may argue that the media lost. The media won in that it got what it wanted: RATINGS. Great ratings equals more advertising dollars. However, others may argue that television personalities such as Nancy Grace acted so inappropriate that this case is a black eye for how the media covers the courts and strengthens the argument against more cameras and other technologies in the courtroom.

Sheppard v. Maxwell, 384 U.S. 333 (1966), is the seminal case that discusses how the media may unfairly influence pending legal proceedings. It is the case that inspired the television series and movie The Fugitive. Sam Sheppard was a doctor who was wrongly convicted of murdering his wife. The media coverage of Sheppard's case did not allow him to obtain a fair trial. Sheppard was first tried and convicted in the court of public opinion and then in a court of law. Even though Sheppard was ultimately found not guilty the ordeal destroyed his life.

In the Social Media Age, it is easier than in the Television Age to be tried to convicted in the court of public opinion. The Casey Anthony jurors were sequestered and this cost the State of Florida a considerable amount of money and was extremely difficult on the jurors during the sequestration. As I have previously stated, sequestering a jury is not practical in the overwhelming majority of cases. Therefore, a national conversation is needed to find a solution regarding how the courts should respond to the Social Media Age.

To learn more about this topic you may contact me at http://www.shearlaw.com/.

Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Ethics, Social Media, and Live Television...You Can Run But You Can't Hide

Social Media has blurred the lines of so many things in our society. Once something is posted on the Internet it is nearly impossible to remove. To paraphrase what former heavyweight champion Joe Louis once said about an opponent, "You can run but you can't hide."

In the Social Media Age, keeping secrets and client confidentiality has become even more difficult due to the rapid pace of technology and constant innovation. In today's "look at me" world everyone seems to want their 15 minutes of fame. Lawyers are no different than anyone else due to the nature of the profession. However, lawyers must be very aware of the ethical issues inherent in the Social Media Age.

During the past year, members of the media have requested my insight on multiple occasions. Due to my schedule, reporter deadlines, etc... I have had to turn down some requests. However, I have also turned down some very high profile media opportunities due to some of the ethical issues.

At the height of Congressman Anthony Weiner's social media crisis on June 1, 2011, I was asked to speak about the matter on MSNBC television. Since Weiner had not contacted me regarding his situation, I was able to accept the the opportunity to discuss his situation on national television. I was called at 10:30am for a noon appearance and had to quickly reschedule several meetings.

It was the first time I had done a live national television segment so I did not know what to expect. I arrived at my local NBC affiliate just in time to go into makeup before the segment. Right after makeup, I was led into a small studio with a bookshelf backdrop and given a sound check. I was not provided any direction on what part of the camera to focus on and I was not able to see how I would look on camera to ensure that I was looking directly into the camera. I was in a different location than the interviewer and I could not see him or the background information that were part of the segment. The room was pitch dark except for some bright lights shinning on me.

Before the segment started, I only knew that the general topic would be the legal issues that may be involved with Weiner's social media matter. During the appearance, I correctly pointed out that it was troubling that Weiner had not asked for an investigation. In the middle of the segment, I looked down for a split second because I felt something brush against my leg. After the segment, I realized that the thing I most likely felt brush against my leg was a wire that moved because my briefcase fell over it during the segment. In addition, I kept blinking throughout the segment because my eyes felt very dry. Afterward, I felt like Homer Simpson and said to myself D'oh. As Murphy's Law states, "anything that can go wrong will go wrong."

It was several weeks before I was able to view my appearance and obtain a copy of it. After seeing my performance, I was inclined not to post the appearance online but I decided that I should follow the advice I usually give clients so I decided to post it so I can provide proper context to it. My performance could have been worse. At least I didn't call the President an inappropriate name on national television.

I am very appreciate that NBC provided me this opportunity and when I am contacted again I will look to improve upon my performance.

If you are interested in viewing the segment here it is:

To learn more about social media law and ethics you may contact me at http://www.shearlaw.com/.

Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

NOTE: I would have uploaded the video in a more timely fashion but I was having technical difficulties uploading the video from my computer to Blogger so I finally uploaded the video to YouTube and then uploaded the segment from YouTube to Blogger. I have no idea why I was not able to upload the video directly to Blogger.

Academic Research Regarding How Social Media May Affect Access To Legal Information

I was recently contacted by Marcela Monroy, a fellow lawyer who is furthering her legal education by studying for a Master in Legal Sociology. As part of her studies, she has a created an "academic survey to explore the impact of social networks (forums, blogs, chats, message boards, etc) and the way people access legal information regarding any issue or injurious experience."

I encourage everyone who reads this blog to take the survey. It takes a few minutes of your time and it will assist a fellow lawyer out with her research. In addition, the survey may help answer some questions about how social media has affected access to legal information.

Here is a link to Ms. Monroy's survey in English, Spanish, and French.

If anyone is interested in assisting Ms. Monroy further with her research please contact me via email and I will forward your information over to Ms. Monroy.

Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

How to Respond to Criticism in the Social Media Age

Properly responding to Social Media Criticism is an important skill to learn. In the Social Media Age, those who learn this skill will be successful. Those who are unable to master this ability will suffer. There are several methods that may be utilized when dealing with Social Media Criticism. Some of the ways to deal with Social Media Criticism include:

1) Ignoring the criticism and hope it subsides and is soon forgotten.
2) Responding to the criticism in the same medium to demonstrate that the criticism is unfounded.
3) Taking legal action against those who have criticized you.

Ignoring the criticism may work in some instances. However, do not hide under a rock. Monitor the criticism to understand if and how it may harm your reputation and brand.

If one decides to respond to social media criticism it may be done in the same medium that the original criticism occurred. For example, when legal marketer Larry Bodine called me a crank and appeared to defend an unethical and misleading marketing practice when I outed a fellow legal marketer who was practicing Social Media Credential Fraud I responded to Bodine by stating the facts and the law to rebut his position. Since I was correct about the law and facts he has not responded.

Another way to respond to social media criticism is to file a lawsuit against those who have directed criticism towards you. On April 1, 2011, The Washington Post wrote a story about lawyer Joseph Rakofsky's handling of his first trial. Rakofsky's first trial did not go as planned. It ended in a mistrial and according to the Washington Post the judge in the case indicated among other things, that Rakofsky did not have good grasp of legal procedures. Subsequently, the American Bar Association, Thomson Reuters, and other well-respected media outlets and lawyers discussed this case in traditional media outlets, on blogs, Twitter, Facebook, and other social media platforms.

It appears that Rakofsky was not pleased that he was criticized so he decided to sue everyone he believed had criticized him and he has alleged that the criticism rose to defamation. Scott Greenfield has nicknamed the case Rakofsky v. Internet.

Some of the alleged facts of this matter include:
1) This was Rakofsky's first trial which was also a felony murder case.
2) Rakofsky was not licensed to practice law in the jurisdiction upon which the case originated and needed to be admitted pro hac vice in order to handle his first trial.
3) In paragraph 102 (p23) of Rakofsky's complaint he states "as a result of the blatant alliance between Judge Jackson and the AUSA"....
4) In paragraph 111 (p28) of Rakofsky's complaint it appears he is accusing a judge of intentionally publishing on the record slanderous and defamatory statements against him.
5) In paragraph 122 (p33) of Rakofsky's complaint he tries to explain that he used an unfortunate shorthand word ("trick") while stating in an email to his investigator "Please trick...(old lady) into admitting:"

Rakofsky should have learned to walk before he ran with a murder case. One's first trial should not be defending an alleged murderer. The above points and the rest of the complaint demonstrates that Rakofsky may not understand the legal definition of defamation. Rakofsky makes unfounded allegations against a judge, a prosecutor, reporters, members of the media and fellow attorneys. Does Rakofsky believe that the New Jersey Rules of Professional Conduct for the Lawyers (and NY and DC; even though he is only barred in NJ) and the FTC Advertising Regulations do not apply to him?

According to the District of Columbia Rules of Professional Conduct, it appears that Rakofsky may be engaging in the unauthorized practice of law in Washington, DC. In an advertisement that appears to list Rakofsky's Washington, DC address (a Regus virtual office address) it may provide the impression that Rakofsky is a Washington, DC barred lawyer. Rakofsky may want to review In re Banks, 561 A.2d 158 (DC 1987) and Brookens v. Committee on Unauthorized Practice of Law, 538 A.2d 1120 (DC 1988). Rakofsky's actions (ex: obtaining a DC virtual office address without a DC license) may demonstrate an intent to circumvent the DC Bar rules.

Taking legal action against those who have criticized you via social media should only be done after all other options have failed and only when one has the law and facts on his side. Filing a lawsuit against The Washington Post, The American Bar Association, Thomson Reuters, and numerous other entities and attorneys will not restore one's reputation. The best way for an attorney to build his reputation is through ethical conduct, hard work, and successful client representation. Unethical conduct, misleading advertising, and unsuccessful client outcomes are not the building blocks for a successful legal career.

The only reason I did not address "the Rakofsky Affair" earlier is that I was busy discussing Social Media Credential Fraud and I felt all of those who Rakofsky sued said everything that needed to be said about the matter. The moral of the story is in the Social Media Age young lawyers should not follow Joseph Rakofsky's playbook.

Rakofsky should drop his lawsuit before it further destroys his life. This situation should serve as a final exam hypothetical in every law school throughout the country.

If Rakofsky takes legal action against me and/or my law firm for this post or any past or future posts I will file a complaint against him with the New York, New Jersey, and Washington, DC Attorney Grievance Committees, the Federal Trade Commission, and I will file a counter suit. To paraphrase Clint Eastwood, Rakofsky... go ahead MAKE MY DAY!

To learn how to respond to social media criticism you may contact me at http://shearlaw.com/attorney_profile.

Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Maryland's Social Media Evidence Authentication Decision Provides Much Needed Guidance

Maryland's highest court, the Court of Appeals recently decided a case regarding authentication of social media accounts and the content contained therein. In Antoine Levar Griffin v. State of Maryland (No. 74, September Term 2010; filed April 28, 2011), the Court of Appeals held that"[t]the potential for abuse and manipulation of a social networking site by someone other than its purported creator and/or user leads to our conclusion that a printout of an image for such a site requires a greater degree of authentication than merely identifying the date of birth of the creator and her visage in a photograph on the site in order to reflect that [defendant] Ms. Barber was its creator and the author of the "snitches get stitches" language." (Griffin v. State, page 14 of the decision and page 16 of the linked pdf)

In the Maryland Daily Record, Maryland's main legal newspaper, there was a post on their Generation J.D. blog disagreeing with the Court of Appeals decision. The blog post states," Lawyers attempting to get social networking into evidence must contend with a group of judges who probably have never used a social networking site between the seven of them", and "The likelihood of fake pages and tampering is remote..." and "[g]iven the prevalence of social networking and the unlikelihood of false pages or fraudulent access..." and "[i]f any of them (Members of the Maryland Court of Appeals) have ever tried it (Facebook) out, or are active users, they are to be commended."

The above statements by John Cord demonstrate a lack of understanding of social media. Mr. Cord's post also states, " I'd love to be proven wrong." A less than 1 second Google search of "fake facebook profiles" shows that fake social media pages occur more often than than Mr. Cord states. It is very easy to create fake social media pages and have your social media account hacked. Fraudulent access to social media pages occurs more often then some may think.

In the Griffin case, the Maryland Court of Appeals spread their social media wings and demonstrated they understand some of the inherent dangers with unauthenticated social media pages. The Court was correct in determining that the prosecution should have utilized a different method to authenticate statements that appear on social media accounts and the Court offered several possible methods that may be acceptable.

A simple Google search and a thorough reading of the decision should have been done before criticizing Maryland's Court of Appeals and its judges. Before publicly criticizing a court and/or its judges, let alone the highest court in one's home state a lawyer should perform the utmost due diligence. #29 of Judge Dennis M. Sweeney's Rules For Courtroom Conduct states, "Remember that nastiness and rudeness rarely impresses the court or help your client. Courtesy is never inappropriate."

To learn how social media intersects with the law you may contact me at http://shearlaw.com/attorney_profile.

Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.