The Appellate Record - April 2013

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The Appellate Record, April 2013 Page 1

THE APPELLATE RECORD

April 2013

FEATURED ARTICLE:Socializing with a Purpose: Ethical Tips and Other

Considerations for Networking, Rainmaking,

and the Use of Social Media

By: Christopher T. Goodin and Mitsuko T. Louie (Litigation Department, Cades Schutte LLP)

At the March 25, 2013 meeting of the HSBA Appellate and Litigation

Sections, Elijah Yip1 and Even R. Shirley2 gave a presentation on “Socializing with

a Purpose: Ethical Tips and Other Considerations for Networking, Rainmaking, andthe Use of Social Media.” The following is a summary of the presentation.

1 Mr. Yip is the former HSBA Litigation Section Chair and a partner at Cades Schutte LLP

practicing in the areas of commercial litigation, appeals, and technology law.

2 Mr. Shirley is the author of the recent Hawaii Bar Journal article “Lawyers, Social Networking,

and How to Avoid Falling into Ethical Traps.” Eighty to ninety percent of his practice focuses on

attorney disciplinary matters.

2013 HSBA Appellate Section Board:

Chair: Ms. Rebecca A. Copeland

Vice Chair: Mr. Mark J. Bennett

Secretary: Ms. Bethany C.K. Ace

Treasurer: Mr. Robert Nakatsuji

HSBA CLE Liaison: Ms. Mitsuko T. Louie

HAWSCT Liaison: Mr. Matthew Chapman

ICA Liaison: Mr. Daniel J. Kunkel




1. Marketing. The first half of the presentation was given by Mr. Yip. He

explained that marketing and networking are good opportunities to help people by

explaining the services you can offer. Social media is a great way of getting your

name out there, developing recognition as a specialist in a particular area,

expanding your network, and gathering data.

2. The Social Media Spectrum. Social media includes websites, blogs,

Facebook, Twitter, LinkedIn, and online directories. Some of these tools can be usedpassively while others require a substantial amount of effort.

a. Online Directories. On the passive side of the spectrum are online

directories, such as Martindale Hubbell and JD Supra Law News.

These sites allow users to provide their profile online. Those online

profiles may potentially receive hits through Google’s search engine.

b. LinkedIn. LinkedIn is also on the passive side of the spectrum.

LinkedIn is essentially Facebook for professionals. Previously it was a

way of posting your resume online. But in the last two years, it has

become more interactive, prompting users to fill in additionalinformation beyond just a resume and allowing users to post updates

and “like” comments. LinkedIn users can join groups that focus on

industry type and expertise.

c. Facebook. On the more active side of the spectrum is Facebook.

Although the site allows users to be “lurkers” who never post, it is




better to be active when using Facebook by sharing links and

establishing your business brand.

In using Facebook, one issue to consider is whether you want to mix

personal and business matters. “Friended” clients on Facebook may

not necessarily want to know that you just visited Matsumoto ShaveIce. But maybe they do. The point is that, if you are going to mix

business with pleasure on Facebook, be sure that you are doing so

consciously. If you want to avoid the situation, one solution is to create

two separate Facebook accounts, one for personal use and the other for

business.

Another issue to consider when using Facebook, as well as when

posting matters on the Internet in general, is that once you share

information, it is difficult to claw it back completely. Even posts that

have been deleted may be recoverable.

d. Twitter. Twitter is a form of social media that is even more active

than Facebook. The objective in using Twitter is to continuously push

content to other users through tweets. Twitter users should consider

sharing and commenting on articles.

e. Blogs. The most active form of social media is a blog. Blogs

continuously need fresh content. The more content uploaded, the more

likely a search engine will pick up the blog. New content should be

added at least once a week.

3. Ethical Implications. In the second half of the presentation, Mr. Shirleydiscussed the ethical implications of using social media. Information uploaded in

social media can spread like wildfire. And it is enduring. For example, the Library

of Congress records every “tweet” made on Twitter.

a. Maintaining Client Confidences. Social media encourages users

to adopt a “screen personality.” For this reason, in using social media,

a lawyer should be careful not to divulge confidential client matters.

See Hawai‘i Rules of Professional Conduct (“HRPC”) Rule 1.6(a).

b. Advertising. Does the use of social media constitute “advertising”

under the ethical rules? Many judicial decisions have held that usingsocial media can qualify as advertising. Attorneys using social media

for their practice should review HRCP Rules 7.1 and 7.2.

c. Solicitation. Posting “hire me” information on Twitter may qualify

as an impermissible solicitation to a prospective client, particularly

under the proposed new version of HRPC Rule 7.3.




d. Disclaimers. Law firm websites should include disclaimers stating

who owns the website, that no legal advice is provided in the website,

and that no attorney-client relationship is established with individuals

viewing the website. Large law firms’ websites generally provide good

sample language for such disclaimers.

e. Data Mining. Another use for social media is as an investigative

tool. Data mining is popular in jury selection, with background checks

being performed in real time during voir dire. Social media can also be

used to conduct research more generally. However, in doing this, a

lawyer should never use the account of a social network member to

actively communicate with others without that member being present

during the communication. Nor should a lawyer create a fictitious

account to conduct research.

f. Social Media Policy. Law firms should consider creating social

media policies. This helps avoid the situation where employees makerepresentations through social media that can be attributed to the law

firm.

g. Monitoring Employee Activity. Employers should be careful

before monitoring their employee’s Internet activities, as there may be

potential issues under the federal Wiretap Act and Stored

Communications Act. See Konop v. Hawaiian Airlines, 302 F.3d 868

(9th Cir. 2002).




This Month in Appellate History Ø On April 3, 1866, United States Supreme Court issued its opinion in Ex parte

Milligan, 71 U.S. 2 (1866), a post-Civil War case related to a plot to liberate

Confederate soldiers from Union Civil War camps, holding that the

application of military tribunals to citizens when civilian courts are still

operating was unconstitutional.

Ø On April 25, 1938, the United States Supreme Court issued its opinion in

Erie Railroad Co. v. Harry J. Tompkins, 304 U.S. 64, holding that federal

courts did not have the judicial power to create general federal common law

when hearing state law claims under diversity jurisdiction.

Ø The following United States Supreme Court Associate Justices took theiroath of office in April: Justice Alfred Moore (April 21, 1800), Justice John

Archibald Campbell (April 11, 1853), and Justice Byron Raymond White

(April 19, 1962).




March Published Appellate Opinions In March, the Hawaii Supreme Court issued three published opinion and the

Intermediate Court of Appeals issued two (although one was in consolidated cases

and, therefore, disposed of two appeals). Below is a brief synopsis of each:

In State v. Pacquing , SCWC-29703 (Mar. 22, 2013), the HAWSCT held that

the circuit court abused its discretion in concluding that the defendant's conduct

constituted a de minimus violation of the Unauthorized Possession of Confidential

Personal Information statute (where the defendant impersonated a police officer in

two traffic stops by using the name, date of birth, and address of an officer) because

the conduct actually caused or threatened the harm sought to be prevented by the

statute, and the defendant failed to meet his burden to demonstrate that the results

of his conduct were trivial.

In State v. Metcalfe, SCWC-30518 (Mar. 19, 2013), the HAWSCT upheld a

manslaughter conviction holding that the circuit court did not abuse its discretion

in denying the defendant's motion to dismiss the amended complaint, did not err in

allowing certain testimony and in the manner in which the testimony was

characterized in the jury instruction, did not err in instructing the jury on self-

defense and related instructions, and that the defendant failed to show that his trial

counsel was ineffective.

In Eastern Savings Bank, FSB v. Esteban, SCAP-30686 (Mar. 15, 2013), theHAWSCT held that Hawaii res judicata principles prohibit a debtor in a foreclosure

action from asserting federal Truth in Lending Act rescission rights after a

foreclosure judgment becomes final, even if the Act's three year time limit for

rescission has not expired.

In In the Interest of A.S., CAAP-11-0001065 (Mar. 28, 2013), that ICA held

that the best interest of the child is the appropriate standard of review by the

Family Court in reviewing a determination by DHS that a certain placement is in

the best interest of the child, and that the Family Court's further application of

whether the DHS decision was an abuse of discretion was harmless error. The

court also held that Hawaii law does not provide for a preference for relative

placement, and even if it did, such preference would not supersede the best interest

consideration.




In State v. Hearn, CAAP-11-0000644 (consolidated with State v. Ledbetter,

CAAP-12-0000528) (Mar. 27, 2013), the ICA held that in determining whether to

dismiss a case with or without prejudice for violation of the speedy trial time limits

set forth in Hawaii Rules of Penal Procedure Rule 28, the trial court is required to

consider, and clearly articulate the effect, of the three enumerated factors set out in

the HAWSCT's decision in State v. Estencion, 63 Haw. 264 (1981) (the seriousness

of the offense, the facts and circumstances which led to the dismissal, and the

impact of a reprosecution on the administration of Rule 48 and the administration

of justice). However, the ICA also held that the failure of the trial court to do so

does not warrant automatic remand if the record is otherwise sufficient to

determine whether the court abused its discretion.




Upcoming Events:

April Appellate Section Meeting Please join the HSBA Appellate Section for its regular monthly meeting on

April 15, 2013, from noon to 1:00 p.m., at the HSBA Large Conference

Room.

Our presentation will be on "Federal Appellate Practice," and the topic will

include final judgments, briefing in the Ninth Circuit, oral arguments, and Supreme

Court review. Both civil and criminal law will be addressed. The presenters are

Ninth Circuit Judge Richard Clifton, Clare Connors of Davis Levin, and MarkM. Murakami of Damon Key Leong Kupchak Hastert.

The presentation has been approved for 1.0 hour VCLE – so take a short

break from tax day to enjoy time with friends, food, and an interesting topic!

A light lunch will be provided.

RSVP to the Appellate Section’s Secretary, Bethany C.K. Ace, at

[email protected].




JEFS E-Filing Tip of the Month Ø When initiating an appeal, and adding the authorizing statute, chose from

the drop down menu provided by the system. If the incorrect authorizing

statute is added, click the "Remove" button to the right of the statute once it

has been associated with the case.

Coming Soon:FEDERAL APPELLATE PRACTICE MANUAL: The Appellate Section is

pleased to announce that it will publish another appellate manual in conjunction

with the Hawaii State Bar Association. This year’s manual will be entitiled

“Federal Appellate Practice Manual.” The manual will provide valuable

information and insight into practicing appeals in the federal arena, with special

emphasis on the United States Supreme Court and United States Court of Appeals

for the Ninth Circuit. Our contributors and/or editors include: Rebecca

A. Copeland, G. Richard Morry (editor), Marissa Luning (editor), Ninth Circuit

Judge Richard Clifton, Christphoer Goodin, Mitsuko Louie, Doug Fredrick, John

Duchemin, Monica Suematsu, Kimberly Asano, Cal Chipchase, Elijah Yip, Robert

Thomas, Mark Murakami, Steven Gray, Johnathan Bolton, Lisa Munger, Lisa Bail,

Trent Kakuda, and Brett Rowan.

2013 HAWAII STATE BAR CONVENTION : The Appellate Section’s time at this

year’s Bar Convention is scheduled to include presentation of the Federal Appellate

Practice Manual (with presentations by many of the contributors to the manual),Hawaii Appellate Motions Practice (with an insert for the Hawaii Appellate Practice

Manual released last year), and an Appellate Panel. Our Appellate Panel will

include distinguished Hawaii jurists including Hawaii Supreme Court Chief Justice

Mark Recktenwald and Associate Justices Simeon Acoba, Sabrina McKenna, and

Richard Pollack. Mark your calendars now for Friday, September 27, 2013.




Useful Appellate Links:The Hawaii Judiciary: www.courts.state.hi.us

United District Court for the District of Hawaii: www.hid.uscourts.gov

United States Court of Appeals for the Ninth Circuit: www.ca9.uscourts.gov

United States Supreme Court: www.supremecourt.gov

Hawaii State Bar Association: www.hsba.org

Blogs by our Members:www.hawaiilitigation.com (by our Member Louise Ing)

www.hawaiioceanlaw.com (by our Member Mark M. Murakami)

www.hawaiiopinions.blogspot.com (by our Member Ben Lowenthal)

www.insurancelawhawaii.com (by our Member Tred R. Eyerly)

www.inversecondemnation.com (by our Member Robert H. Thomas)

www.hawaiiappellatelaw.com (by our Member Charley Foster)

www.recordonappeal.com (by our Chair Rebecca A. Copeland)




Appellate Section Website:

The Appellate Section’s website includes useful appellate resources, includinghandouts from prior monthly meetings, copies of this newsletter, and power point

presentations from the Appellate Section’s program at the 2012 HSBA Bar

Covention.

www.hawaiiappellatesection.org

Hawaii Appellate Practice Manual:

The Hawaii Appellate Practice Manual includes information you need to know for

filing appeals in Hawaii, including how to e-file documents on the Judiciary’s E-

Filing System, how to supercede a judgment, and how to brief and argue cases. The

manual also includes useful appellate forms. The Manual was co-sponsored by the

Appellate Section and the Hawaii State Bar Association, and is available for

purchase at the link below.

http://www.hsba.org/resources/8/Manuals/Publications%20List%20Fillable%20(upd

ated%209-1-2012).pdf




Stay tuned for the May 2013 edition of The Appellate Record!

If you are interested in contributing to our newsletter in any way, please contact the

Section’s Chair Rebecca A. Copeland at [email protected]

The Appellate Record is presented

as a courtesy to the Members of the

Hawaii State Bar Association’s

Appellate Section by its Board.

Mahalo and enjoy!

Documents

The Appellate Record - April 2013