2012 — H 7139 SUBSTITUTE A

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S T A T E  O F  R H O D E  I S L A N D

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2012

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A N  A C T

RELATING TO ANIMALS AND ANIMAL HUSBANDRY – ANIMAL ADVOCATE

— client wins rights to keep dog after defendants abandoned dog for two (2) years —

here is the protective order obtained protecting clients from defendants’ efforts to obtain custody:

Supreme Court, County of Queens – Emergent Order to Show Cause

here is the appellate memorandum of law in support of the order to show cause for a stay on trial court’s visitation order granting defendants “visitation” of the dog Lucy:

Appellate Division: Second Judicial Department – Plaintiff-Appellant’s Memo of Law in Support of Order to Show Cause

here is the stay granted by the Appellate Division preventing visitation as ordered by Court Below:

Appellate Division: Second Judicial Department – Order to Show Cause

NYCLA COMMITTEE ON PROFESSIONAL ETHICS

FORMAL OPINION

No.: 743

Date Issued: May 18, 2011

TOPIC:  Lawyer investigation of juror internet and social networking postings during conduct of trial.

DIGEST:  It is proper and ethical under RPC 3.5 for a lawyer to undertake a pretrial search of a prospective juror’s social networking site, provided that there is no contact or communication with the prospective juror and the lawyer does not seek to “friend” jurors, subscribe to their Twitter accounts, send tweets to jurors or otherwise contact them. During the evidentiary or deliberation phases of a trial, a lawyer may visit the publicly available Twitter, Facebook or other social networking site of a juror, but must not “friend,” email, send tweets to jurors or otherwise communicate in any way with the juror, or act in any way by which the juror becomes aware of the monitoring. Moreover, the lawyer may not make any misrepresentations or engage in deceit, directly or indirectly, in reviewing juror social networking sites. In the event the lawyer learns of juror misconduct, including deliberations that violate the court’s instructions, the lawyer may not unilaterally act upon such knowledge to benefit the lawyer’s client, but must promptly comply with Rule 3.5(d) and bring such misconduct to the attention of the court before engaging in any further significant activity in the case.

RULES:  RPC 3.5, 4.1, 8.4

QUESTION:  After voir dire is completed and the trial commences, may a lawyer routinely conduct ongoing research on a juror on Twitter, Facebook and other social networking sites?  If so, what are the lawyer’s duties to the court under Rule of Professional Conduct 3.5?

OPINION:  This opinion considers lawyer investigations of jurors during an ongoing trial. With the advent of internet-based social networking services, additional complexities are introduced to the traditional rules barring contact between lawyers and jurors during trials.

New York RPC 3.5(a)(4) and (a)(5) provide that a lawyer shall not:

4.       communicate or cause another to communicate with a member of the jury venire from which the jury will be selected for the trial of a case, or, during the trial of a case with any member of the jury unless authorized to do so by law or court order;

5.       communicate with a juror or prospective juror after discharge of the jury if (i) the communication is prohibited by law or court order; (ii) the juror has made known to the lawyer a desire not to communicate; (iii) the communication involves misrepresentation, coercion, duress or harassment; or (iv) the communication is an attempt to influence the juror’s actions in future jury service . . . .

Thus, the rules proscribe any direct or indirect communication with a juror or potential juror during trial, and prohibit certain categories of communication after the jury service is complete. It should also be noted that the RPC prevent a lawyer from doing indirectly, such as through a proxy, that which is directly proscribed for the lawyer. (RPC 8.4(a); 3.5).

A.               Impermissible Communication

The RPC explicitly draw a distinction between conduct during trial, which is governed by RPC 3.5(a)(4), and conduct after discharge of the jury, which is regulated less strictly under RPC 3.5(a)(5). In fact, a lawyer’s contact with jurors is divided, at least in practice, into three distinct areas. These are voir dire or jury selection, actual conduct of the trial, and post-verdict contact with jurors. As mentioned, any contact, direct or indirect, is proscribed as a matter of attorney ethics during the conduct of the trial, but permitted with certain conditions after discharge pursuant to RPC 3.5(a)(5).

Some authorities have examined a lawyer’s use of internet resources to investigate potential jurors in the voir dire stage. For example, one recent Missouri decision considered and set aside a jury verdict in which a juror had specifically denied (falsely) any prior jury service. See Johnson v. McCullough, 306 S.W. 3d 551 (Mo. 2010). In holding that the juror had acted improperly, the Court observed that a more thorough investigation of the juror’s background would have obviated the need to set aside the jury verdict and conduct a retrial. The trial court chided the attorney for failing to perform internet research on the juror, and granted a new trial, observing that a party should use reasonable efforts to examine the litigation history of potential jurors. 306 S.W. 3d at 559. A New Jersey appellate court similarly held that the plaintiff counsel’s use of a laptop computer to google potential jurors was permissible and did not require judicial intervention for fairness concerns. See Carino v. Muenzen, No. A-5491-08T1, N.J. Super. Unpub. LEXIS 2154, at *26-27 (App. Div. Aug. 30, 2010); see also Jamila A. Johnson, “Voir Dire: to Google or Not to Google” (ABA Law Trends and News, GP/Solo & Small Firm Practice Area Newsletter, Fall 2008, Volume 5, No. 1).

In another context, the New York State Bar Association Committee on Professional Ethics, in Ethics Opinion 843, recently considered whether a lawyer could ethically access the publicly available social networking page of an unrepresented party or witness for use in litigation, including possible impeachment. The NYSBA concluded that the lawyer may ethically view and access the Facebook and MySpace profiles of a party other than the lawyer’s client in litigation as long as the party’s profile is available to all members in the network and the lawyer neither 379003.1 “friends” the other party nor directs someone else to do so.”[1] Drawing an analogy to jurors, we conclude that passive monitoring of jurors, such as viewing a publicly available blog or Facebook page, may be permissible.

During a trial, however, lawyers may not communicate with jurors outside the courtroom. Not only is direct or indirect juror contact during trial proscribed as a matter of attorney ethics, as a matter of law (which is outside the scope of this committee’s jurisdiction), the courts proscribe any unauthorized contact between lawyers and sitting jurors.

Significant ethical concerns would be raised by sending a “friend request,” attempting to connect via LinkedIn.com, signing up for an RSS feed for a juror’s blog or “following” a juror’s Twitter account. We believe that such contact would be impermissible communication with a juror.

Moreover, under some circumstances a juror may become aware of a lawyer’s visit to the juror’s website.[2] If a juror becomes aware of an attorney’s efforts to see the juror’s profiles on websites, the contact may well consist of an impermissible communication, as it might tend to influence the juror’s conduct with respect to the trial.

B.               Reporting Juror Misconduct

Lawyers who learn of impeachment or other useful material about an adverse party, assuming that they otherwise conform with the rules of the court, have no obligation to come forward affirmatively to inform the court of their findings. Such lawyers, absent other obligations under court rules or the RPC, may sit back confidently, waiting to spring their trap at trial.[3] On the other hand, a lawyer who learns of juror impropriety is bound by RPC 3.5 to promptly report such impropriety to the court. That rule provides that: “A lawyer shall reveal promptly to the court improper conduct by a member of the venire or a juror, or by another toward a member of the venire or a juror or a member of his or her family of which the lawyer has knowledge.” RPC 3.5(d).

The standard jury charge in a civil or criminal case instructs jurors not to discuss the case with anyone outside the courtroom, not to conduct any independent investigation, not to view the scene of the incident through computer programs such as Google Earth, and not to perform any independent research on the internet. See PJI 1:10, 1:11. According to the New York pattern jury instruction:

It is important to remember that you may not use any internet services such as Google, Facebook, Twitter or any others to individually or collectively research topics concerning the trial, which includes the law, information about any of the issues in contention, the parties or the lawyers or the court.

Jurors have sometimes ignored instructions. For example, a New York juror googled defense counsel during trial, and discussed it at a social dinner.[4] A prominent television newscaster was criticized for tweeting on his Twitter account about his own jury service.[5] In a recent South Dakota case, a jury verdict was set aside after a juror performed his own internet research, which he shared with the other jurors.[6]

Any lawyer who learns of juror misconduct, such as substantial violations of the court’s instructions, is ethically bound to report such misconduct to the court under RPC 3.5, and the lawyer would violate RPC 3.5 if he or she learned of such misconduct yet failed to notify the court. This is so even should the client notify the lawyer that she does not wish the lawyer to comply with the requirements of RPC 3.5. Of course, the lawyer has no ethical duty to routinely monitor the web posting or Twitter musings of jurors, but merely to promptly notify the court of any impropriety of which the lawyer becomes aware.

Further, the lawyer who learns of improper juror deliberations may not use this information to benefit the lawyer’s client in settlement negotiations, or even to inform the lawyer’s settlement negotiations. The lawyer may not research a juror’s social networking site, ascertain the status of improper juror deliberations and then accept a settlement offer based on that information, prior to notifying the court. Rather, the lawyer must “promptly” notify the court of the impropriety—i.e., before taking any further significant action on the case.

CONCLUSION:  It is proper and ethical under RPC 3.5 for a lawyer to undertake a pretrial search of a prospective juror’s social networking site, provided that there is no contact or communication with the prospective juror and the lawyer does not seek to “friend” jurors, subscribe to their Twitter accounts, send jurors tweets or otherwise contact them. During the evidentiary or deliberation phases of a trial, a lawyer may visit the publicly available Twitter, Facebook or other social networking site of a juror but must not “friend” the juror, email, send tweets to the juror or otherwise communicate in any way with the juror or act in any way by which the juror becomes aware of the monitoring. Moreover, the lawyer may not make any misrepresentations or engage in deceit, directly or indirectly, in reviewing juror social networking sites. In the event the lawyer learns of juror misconduct, including deliberations that violate the court’s instructions, the lawyer may not unilaterally act upon such knowledge to benefit the lawyer’s client, but must promptly comply with RPC 3.5(d) and bring such misconduct to the attention of the court, before engaging in any further significant activity in the case.

First: emergency

The emergency number worldwide for mobile is 112.  If you find yourself out of the coverage area of your mobile network and there is an emergency, dial 112 and the mobile will search any existing network to establish the emergency number for you, and interestingly, this number 112 can be dialed even if the keypad is locked. Try it out.

Second: have you locked your keys in the car?

Does your car have remote keyless entry?  Good reason to own a cell phone: if you lock your keys in the car and the spare keys are at home, call someone at home on their phone from your cell phone.  Hold your cell phone about a foot from your car door and have the person at your home press the unlock button, holding it near the mobile phone on their end.  Your car will unlock.  Saves someone from having to drive your keys to you.  Distance is no object… You could be hundreds of miles away, and if you can reach someone who has the other ‘remote’ for your car, you can unlock the doors (or the trunk).

Third: hidden battery power

Imagine your cell battery is very low.  To activate, press the keys *3370#.  Your cell phone will restart with this reserve and the instrument will show a 50% increase in battery.  This reserve will get charged when you charge your cell phone next time.

Fourth: how to disable a stolen mobile phone?

To check your mobile phone’s serial number, key in the following digits on your phone: *#06#.  A 15-digit code will appear on the screen.  This number is unique to your handset. Write it down and keep it somewhere safe.

If your phone gets stolen, you can phone your service provider and give them this code.  They will then be able to block your handset so even if the thief changes the SIM card, your phone will be totally useless.  You probably won’t get your phone back, but at least you know that whoever stole it can’t use/sell it either.  If everybody does this, there would be no point in people stealing mobile phones.

Fifth: free directory service for cells

Cell phone companies are charging us $1.00 to $1.75 or more for 411 information calls when they don’t have to.  Most of us do not carry a telephone directory in our vehicle, which makes this situation even more of a problem.  When you need to use the 411 information option, simply dial: (800)FREE411, or (800) 373-3411 without incurring any charge at all. Program this into your cell phone now.

President Barack Obama in July 2010 signed into law the Cruise Vessel Security and Safety Act of 2010.  Section 2(13) provides: “[t]o enhance the safety of cruise passengers, the owners of cruise vessels could upgrade, modernize and retrofit the safety and security infrastructure of such vessels in installing peep holes in passenger room doors, installing security video cameras in targeted areas, limiting access to passenger rooms to select staff during specific times and installing acoustic hailing and warning devices capable of communicating over distances.”  Here’s a summary:

Prevention

o  Mandate all passenger and crew cabin doors be equipped with peep holes or other mean of visual identification

o  Mandate all passenger and crew cabin doors be equipped with security latches and time-sensitive key technology

o  Require cruise ships to maintain electronic video surveillance to assist in documenting crimes and provided as evidence for prosecution

§  Video records shall be made available to law enforcement, upon request, during an investigation

o  Cruise operators are mandated to provide a “security guide” to each passenger that describes medical and security personnel designated to prevent and respond to criminal and medical situations within 24-hour contact instructions

§  Security guide will also provide information to passengers on how to report crimes to appropriate US law enforcement REGARDLESS of where the crime is committed (US waters, high seas, in any country visit on the voyage)

§  Security guide must be published on the website of cruise ship owners/operators

o  Limits on Crew Access

§  Vessel owners/operators must implement procedures and restrictions concerning which crewmembers have access to passenger cabins

§  And limit the periods of time crew will have access to passenger cabins

Intervention

o  Mandate operators/owners to maintain on the vessel adequate, in-date supplies of anti-retroviral medication and other medications designed at preventing STDs

§  required to maintain adequate equipment and materials for performing a rape exam/rape kits to evaluate the patient for trauma, provide medical care, and relevant medical services

o  Vessels are required to make available at all times medical staff (licensed physician or RN) who have undergone a credentialing process

§  Medical staff must have at least 3 years post-graduate/registration clinical practice and emergency medicine

§  Is able to provide assistance in the event of a sexual assault and to conduct rape kit exam

§  Meet guidelines established by the American College of Emergency Physicians related to the treatment and care of SA victims

§  Prepare and provide SA victims with medical documentation of the findings of the exam

§  Required to provide patient with free and immediate access to contact local law enforcement, FBI, Coast Guard, or Embassy or Consulate, and the National Sexual Assault Hotline program or other third party victim advocacy hotline service

§  Required to provide telephone line and internet-accessible computer terminal by which the SA victim may confidentially access law enforcement, attorney and information and support services available through National Sexual Assault Hotline Program or other third party advocacy service

Victim Privacy

o  Masters of the vessel are required to treat all information, especially medical information, confidential and shall not be released to cruise line or owner of vessel or any legal representative thereof without the prior knowledge and written approval of patient, or patient next-of-kin

o  Exceptions include:

§  information, other than medical findings, shall be included in centralized crime log

§  information to secure the safety of passengers or crew on board the vessel

§  any information to law enforcement official performing official duties in the course of investigation

Record Keeping

o  All vessels are required to keep a centralized log book of all complaints of crimes and make log book available upon the request to any agent of the FBI, Coast Guard, and law enforcement official performing official duties int he course of investigation

Reporting

o  Owner/operator of vessel must contact nearest FBI field office or legal attache as soon as possible after the occurrence of specified crime commitment

o  Shall file a report of the incident on an Internet based portal maintained by the Secretary

o  Borderless Reporting

§  Reporting crimes within this measure are applicable regardless of vessel registry and if the vessel is owned in whole or in part, by a US person/corporation, regardless of the nationality of the victim if committed within the maritime jurisdiction of the US

§  if the offense of concern is committed by or against a US national outside of the jurisdiction of any nation

§  if the offense of concern occurs in the Territorial Sea of the US

§  if the offense of concern is committed by or against a US national on a vessel during a voyage that departed from or will arrive at a US port

Information

o  Secretary shall maintain a statistical compilation of all incidents on an Internet site that provides numerical accounting of missing persons or alleged crimes.

o  Data shall be updated quarterly and each cruise line shall be identified by name, and each crime shall be identified as to whether the crime was committed by a passenger or crew member

o  Cruise lines taking in or discharging passengers in the US shall provide a Internet website link to Federal database on their website

Staff training/certification

o  The Secretary shall issue guidelines, training curricula, and inspection and certification procedures within 6 months of enactment of Cruise Vessel Security and Safety Act of 2010

o  Within 1 year of enactment the Secretary and director of FBI shall develop training standards and curricula for security personnel, crewmembers, and law enforcement officials on the appropriate methods of prevention, detection, evidence preservation, and reporting of criminal activities in international waters.

§  This act also establishes minimum standards in which this training must adhere on page 8 Section 3508(b).

o  Beginning 2 years after these standards are established, no ship may enter US port or carry a US citizen as a passenger unless there is at least 1 crewmember onboard who is certified as having successfully completed training in prevention, detection, evidence preservation, and reporting of criminal activities

The Act also lists a litany of penalties if any of these sections are violated by ship operators/owners

All cruise ships touching U.S. ports are now subject to the requirements of the Americans with Disabilities Act.