THEY'RE BACK

From the Governor's press office, August 3, 2016:

"Governor Andrew M. Cuomo today signed legislation to legalize interactive fantasy sports in New York State. The bill (S.8153/A.10736) requires that fantasy sports companies must register with, and operate under regulations issued by, the New York State Gaming Commission. It is expected that once fully implemented, the legislation will generate approximately $4 million in revenue to fund state education aid.

"Daily fantasy sports have proven to be popular in New York, but until now have operated with no supervision and no protections for players," Governor Cuomo said. "This legislation strikes the right balance that allows this activity to continue with oversight from state regulators, new consumer protections, and more funding for education.”

Interactive fantasy sports are games of skill in which contestants assemble a roster of athletes in a given sport and use the actual performance statistics of those athletes to determine the contest’s winner. Contestants pay fees to enter the contest and, if successful in performing against their opponent, win prizes.

In addition to establishing the means for regulating interactive fantasy sports in New York State, this legislation also takes steps to institute important consumer protections for players for the first time, some of which include offering introductory procedures to new players, identifying highly experienced players, prohibiting the participation of minors and protecting players' funds upon deposit.

Senator John J. Bonacic said, "I am pleased that Governor Cuomo has signed the Daily Fantasy Sports legislation into law, allowing thousands of New Yorkers the opportunity to continue playing these games that they have been playing for over a decade. With strong consumer protections and economic benefits to the state, I believe this legislation can serve as a model for the rest of the country."

Assemblyman J. Gary Pretlow said, “Fantasy sports are more than online games – they have the potential to generate millions of dollars in revenue for New York State. This bill will allow these companies to continue operating while ensuring fans have a safe environment to play in. I am proud Governor Cuomo has signed this legislation to keep fantasy sports in New York and I thank my partners in the legislature for their work in getting this legislation passed.” "

ONLINE REVIEWS- THE ASTER DENTAL CASE

From the current ABA Journal:

"Robert Allen Lee desperately needed a dentist.

Dr. Stacy Makhnevich at Aster Dental in New York City was able to squeeze Lee in to treat his toothache. When Lee arrived, the dentist required he sign a "mutual agreement to maintain privacy"—a confidentiality agreement with a nondisparagement clause that waives patients' rights to publicly comment on services and assigns copyright to the provider. Anxious for treatment, Lee signed and slid into the dentist's chair.


Though Lee found relief from his toothache, dealing with his dentist over the bill—which totaled $4,766 for the filling—became a pain. He complained about Makhnevich on Yelp and DoctorBase, another online site, claiming the dentist overcharged him and did not furnish the treatment records that would allow him to make an insurance claim and be reimbursed.
Makhnevich fought back. Armed with the privacy agreement Lee signed, she sent takedown notices to the websites hosting the complaints. She then threatened to sue Lee, sending him invoices of $100 a day for copyright infringement.

Lee returned fire. He filed suit against the dentist in the U.S. District Court for the Southern District of New York, aiming to invalidate the copyright claim.

“She charged him a lot of money. It was outrageous,” says Paul Alan Levy, an attorney with the Public Citizen Litigation Group in Washington, D.C., who works on online free speech issues and handled Lee’s case. “What he wrote was true.”

More than four years after treatment, Lee won. The court, in its 2015 ruling, termed the privacy agreement null and void, calling the contract “a deceptive act or practice in violation of New York General Business Law,” which bars deceptive business practices. Lee was awarded $4,766 in damages."

NOTE THE FOLLOWING:

According to one source: "Makhnevich and her practice disappeared after the ruling, and even her own lawyers were unable to contact her." See http://arstechnica.com/tech-policy/2016/02/dentist-said-to-hit-patients-will-pay-12k-for-trying-to-out-youtube-critic/

A google search on Dr. Makhnevich reveals that she is a "dentist, artist and opera singer" apparently now in Canada and/or in Europe (see http://www.stacymakhnevich.com)

INTERNET PRIVACY?

Recently, the NYSBA Journal had an article on the "Right To Be Forgotten" which translates into a users’ right to choose whether or not to be tracked by third-party websites.

Although California has enacted a law effective last year dealing with minors, the following bills have been introduced on the federal level but never enacted:

Do Not Track Me Online Act of 2011

Consumer Privacy Protection Act of 2011

Commercial Privacy Bill of Rights

Do Not Track Online Act of 2011

Consumer Privacy Bill of Rights

HANDLING NEGATIVE ONLINE COMMENTS

Avvo has a webinar on March 12: Someone Online Hates You: Ethical Responses to Negative Online Feedback.

I recall seeing this earlier and I do recommend it as it is also helpful to advise business clients, etc. who seek counsel on similar issues. With the rise of sites like Yelp, etc., online negative feedback can affect anyone.

The link to register here - CLE is not available for NY but again, I find the webinar helpful:

http://ignite.avvo.com/webinar-schedule.html?utm_source=conferences&utm_medium=email&utm_content=schedule&utm_campaign=webinar_pro

LAWYERS & JURORS & SOCIAL MEDIA

In the past few days, the press has been reporting on the fact that The American Bar Association says it's ethical for lawyers to scour online for publicly available musings of citizens called for jury service — and even jurors in deliberations.

This was actually from an opinion issued in April 2014 and here is a link to the full opinion:

http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/formal_opinion_466_final_04_23_14.authcheckdam.pdf

FOR ABA MEMBERS - FREE CLE TODAY ON ONLINE REPUTATION

A one hour webinar described as follows:

"Trolls, Flame Throwers and Haters are all over the internet. As an attorney, you have a reputation you want to protect from people writing horrible things about you or even outright lies. How do you create and manage your brand from being destroyed by individuals who have negative things to say?"

Important not just for one's own practice, but to counsel clients who also experience this.

"Visit our website at www.americanbar.org/gpsolo.
Recordings of this program and others will be posted on the GPSolo website after each session.
Please visit http://ambar.org/GPSoloBrownBag to listen to the audio."

NEW YORK DIVORCE - RESTRAINT OF PEN AND TONGUE

As noted in many recent web articles, litigating a divorce in the various "courts of public opinions", available online and off, may not be wise - here is the case reported in one article:

http://verdict.justia.com/2014/04/22/high-price-badmouthing-ones-spouse-divorce

NEW YORK UNEMPLOYMENT INSURANCE - EFFECT OF BLAND V. ROBERTS

This was a recent case Bland et al v. Roberts, 4th U.S. Circuit Court of Appeals, No. 12-1671, in which the 4th U.S. Circuit Court of Appeals ruled in favor of a former deputy sheriff in Hampton, Virginia, who claimed he lost his job in retaliation for his "liking" the Facebook page of a candidate running against his boss for city sheriff:

"Liking a political candidate's campaign page communicates the user's approval of the candidate and supports the campaign by associating the user with it....It is the Internet equivalent of displaying a political sign in one's front yard, which the Supreme Court has held is substantive speech."

How does this apply to Unemployment Insurance and misconduct?  Here is a case decided prior to BLAND: In Mailed and Filed: AUGUST 25, 2011, IN THE MATTER OF: Appeal Board No. 553929:

"The evidence further establishes that the claimant was discharged on January 26, 2010 after the employer learned that she had posted derogatory comments as well as comments that could be perceived as threatening regarding coworkers on her "Facebook" page on January 19. The employer contends the claimant's conduct violated the employer's policy. However, the portions of the policy at issue, prefaced by the language "For the benefit and safety of employees, clients, and the Organization", clearly pertain to employee conduct in the office. Further, we are not convinced that the claimant could have known from the language of the policy that her personal "Facebook" postings would jeopardize her employment.

We note that while the claimant acknowledged that she made the comments, she also credibly testified that she did not intend for any of her coworkers to be able to access her "Facebook" page, and therefore could not have intended to offend or threaten her coworkers. We also find it significant that neither the employer nor the coworkers are named in the claimant's postings, and that the claimant had received no warnings regarding similar conduct during her seven and a half-year employment, Further, it is credible that the claimant's comments were made in jest, and that she did not mean the exaggerated and outlandish remarks made.

Accordingly, while the Board does not condone such conduct by the claimant, the employer's policy regarding employee conduct was too broad to put the claimant on notice that comments on her personal social networking page, that were made in jest and did not specifically identify either the employer by name or the names of her coworkers, was not sufficient to put the claimant on notice that her conduct could result in her discharge. Absent a specific policy that would provide such notice to an employee, we find that the claimant's conduct - while demonstrating extremely poor judgment - did not constitute misconduct for unemployment insurance purposes. We conclude that this claimant was separated from employment under non disqualifying circumstances."

OPERATION CLEAR TURF

While researching sites that post reviews and what to do about negative reviews, I discovered this:

http://www.ag.ny.gov/press-release/ag-schneiderman-announces-agreement-19-companies-stop-writing-fake-online-reviews-and

LAWYERS AND SOCIAL MEDIA

This issue concerns me.

Yesterday, I made a mistake - it wasn't serious but I did it: a non-confidential business email meant to be sent to around 20 people on LinkedIn was sent out to 200 people instead. Social media raises new issues of ethics and the New York State Bar Association Committee on Professional Ethics has dealt with lawyers and social media. Here is one recent opinion:

"Opinion 899 — 12/21/11 (20-11)
New York State Bar Association Committee on Professional Ethics
December 21, 2011

Topic: Solicitation; answering legal questions on the Internet

Digest: A lawyer may provide general answers to legal questions
from laymen on real-time or interactive Internet sites such as
chat rooms, but the lawyer may not engage in "solicitation" in violation
of Rule 7.3. If a person initiates a request on the site to retain the
lawyer, the lawyer may respond with a private written proposal outside
the site so that those who did not request it cannot see it.

Rules: 1.0(a) & (c), 7.1(a), (q) & (r), 7.3(a) & (b)

QUESTIONS

1. May a lawyer answer legal questions in chat rooms or on other
social media sites on the Internet?

2. If so, may the lawyer also offer his or her legal services in the
course of answering questions?

OPINION

3. A lawyer asks whether he may visit real-time interactive internet
or social media sites on which individuals post legal questions and, if
so, whether he may answer questions and advise individuals of his
availability as a lawyer. For example, if a layperson in an Internet
chat room asks how long a person can wait to sue a lawyer for legal
malpractice, may the lawyer respond by saying, "The statute of
limitations in New York is three years"? May the lawyer also say,
"Please call me at the following number as soon as possible for a free
evaluation of your case"?

General principles of advertising and solicitation by lawyers

4. Rule 7.1 of the New York Rules of Professional Conduct
(the "Rules") governs attorney advertisements, and Rule 7.3 governs a
special form of advertising called

"solicitation." We begin our analysis with the
definitions of "advertisement" and
"solicitation."

5. An "advertisement" is defined under Rule 1.0(a) as "any public or
private communication made by or on behalf of a lawyer or law firm about
that lawyer or law firm's services, the primary purpose of which is for
the retention of the lawyer or law firm. It does not include
communications to existing clients or other lawyers."

6. "Solicitation" is defined in Rule 7.3(b) as follows:

For purposes of this Rule, `'solicitation'' means
any advertisement initiated by or on behalf of a
lawyer or law firm that is directed to, or
targeted at, a specific recipient or group of
recipients, or their family members or legal
representatives, the primary purpose of which is
the retention of the lawyer or law firm, and a
significant motive for which is pecuniary gain.
It does not include a proposal or other writing
prepared and delivered in response to a specific
request of a prospective client.

7. Thus, Rule 7.3(a) excludes from solicitation a response in writing
to a specific request of a potential client.

8. In general, Rule 7.1(a)(1) regulates the content of an
advertisement by prohibiting any lawyer advertisement that "contains
statements or claims that are false, deceptive or misleading."
Rule 7.3(a)(1) regulates the manner of advertising by expressly
prohibiting a lawyer from engaging in solicitation "by in-person or
telephone contact or by real-time or interactive computer-accessed
communication unless the recipient is a close friend, relative,
former client or existing client . . ." (Emphasis added.)

9. The term "computer-accessed communication," which is used in
Rule 7.3(a)(1), is defined in Rule 1.0(c) as follows:

"Computer-accessed communication" means any
communication made by or on behalf of a lawyer or
law firm that is disseminated through the use of
a computer or related electronic device,
including, but not limited to, web sites,
weblogs, search engines, electronic mail, banner
advertisements, pop-up and pop-under
advertisements, chat rooms, list servers, instant
messaging, or other internet presences, and
any attachments or links related thereto.

10. Comment [9] to Rule 7.3 sets forth the rationale for prohibiting
solicitation by in-person or telephone contact or by real-time or
interactive computer-accessed communication:

[I]n-person solicitation poses the risk that a
lawyer, who is trained in the arts of advocacy
and persuasion, may pressure a potential client
to hire the lawyer without adequate
consideration. These same risks are present in
telephone contact or by real-time or interactive
computer-accessed communication and are regulated
in the same manner. . . .

11. Comment [9] also explains that "[o]rdinary email and web sites are
not considered to be real-time and interactive communications," but
"[i]nstant messaging, chat rooms, and other similar types of
conversational computer-accessed communication are considered to be
real-time or interactive communication." Thus, the lawyer must not
engage in solicitation in those forums. With that background in place,
we turn to the specific questions before us.

Question 1: May the lawyer answer legal questions in
chat rooms?

12. The first question is whether the lawyer may answer legal
questions posted by laymen in chat rooms or on other social media sites
on the Internet. Answering questions on the Internet is analogous to
writing for publication on legal topics. As set forth in Rule 7.1(r), a
lawyer may write for publication on legal topics without affecting the
right to accept employment, as long as the lawyer does not undertake to
give individual advice.[fn1] Comment [9] to Rule 7.1 echoes Rule 7.1(r)
by cautioning that, in the course of educating members of the public to
recognize their legal problems a lawyer "should carefully refrain from
giving or appearing to give a general solution applicable to all
apparently similar individual problems, because slight changes in fact
situations may require a material variance in the applicable advice;
otherwise, the public may be misled and misadvised." Comment [9] adds
that talks and writings by a lawyer aimed at the public "should caution
them not to attempt to solve individual problems" on the basis of the
information conveyed by the lawyer. A lawyer who adheres to those
guidelines may answer legal questions posted by laymen on the Internet.

13. Comment [9] to Rule 7.1 also says that lawyers "should encourage
and participate in educational and public relations programs concerning
the legal system, with particular reference to legal problems
that frequently arise." A lawyer's participation in an educational
program "is ordinarily not considered to be advertising because its
primary purpose is to educate and inform rather than to attract
clients." If a communication is not advertising, then it also cannot be
solicitation — see Rule 7.3, cmt. [1]. But Comment [9] to Rule 7.1 also
notes that an educational program "might be considered advertising if,
in addition to its educational component, participants or recipients are
expressly encouraged to hire the lawyer or law firm." In that case, the
communications would have to comply with Rules 7.1 and 7.3.
See, e.g., N.Y. State 830 (2009) (a lawyer may ethically contact
lay organizations to inform them that he or she is available to speak on
legal topics, but "must adhere to advertising and solicitation
requirements under the Rules where the communication is made expressly
to encourage participants to retain the lawyer or law firm"). We
therefore turn to Question 2.

Question 2: May the lawyer offer his or her legal services in
chat rooms?

14. The second question is whether the lawyer may offer his or her
legal services in the course of answering legal questions on the
Internet. As already noted, Rule 7.3(a) prohibits solicitation in
chat rooms and other similar types of conversational computer-accessed
sites because they are considered to be "real-time" or "interactive"
communications. However, the definition of "solicitation" in Rule 7.3(b)
expressly excludes "a proposal or other writing prepared and delivered
in responds to a specific request of a prospective client."
(Emphasis added.)

15. Standing alone, a legal question posted by a member of the public
on real-time interactive Internet or social media sites cannot be
construed as a "specific request" to retain the lawyer. Thus,
encouraging a layperson to retain the lawyer in response to such a
question is prohibited by Rule 7.3(a)(1). On the other hand, if a
lawyer's primary purpose in answering a question is not to encourage his
own retention but rather is to educate the public by providing general
answers to legal questions, then Rule 7.3(a)(l) does not prohibit the
lawyer's responses.

16. Moreover, Rule 7.1(q) generally allows a lawyer to accept
employment resulting from educational activities. Rule 7.1(q) provides
as follows:

(q) A lawyer may accept employment that results
from participation in activities designed to
educate the public to recognize legal problems,
to make intelligent selection of counsel or to
utilize available legal services.

17. Thus, if a potential client initiates a specific request to retain
the lawyer during the course of permissible real-time cyberspace
communications, then the lawyer's response to that person does not
constitute impermissible solicitation. Yet because the lawyer's response
in a chat room or interactive social media site would constitute a
solicitation to everyone on the site who did not specifically request
the lawyer's services, the lawyer may not post a response
that encourages everyone on the site to retain the lawyer. Therefore, if
the person making the request includes contact information, the lawyer
may respond only to that person.

18. If the person making the request does not include contact
information, however, then the lawyer's response must be in two stages.
The first stage is to ask the layperson to communicate directly with the
lawyer off the site, by email, phone, or otherwise. For example, if the
person whose question the lawyer answered in a chat room says, "Can you
represent me in my case?" the lawyer may post a response such as, "My
communications on this site are for the purpose of educating the general
public about legal issues. If you are seeking an individual
consultation, please visit my website at www.jones.com." Alternatively,
the lawyer may provide an office phone number, email address, and/or
mailing address, without giving any information about the lawyer's
services. If the person who requested the lawyer's services then uses
one of these methods to contact the lawyer directly outside the
real-time or interactive site, then the lawyer will not violate the
restrictions on solicitation by preparing and delivering a proposal or
other writing that responds to the specific request made by
that prospective client. (Because advertising includes both public and
private communications for the purpose of seeking retention, these
communications must comply with Rule 7.1.)

19. However, the lawyer may not post a proposal offering his or her
legal services on the real-time interactive Internet or social media
site, because posting that information would be a real-time and
interactive computer-accessed solicitation to people who did not request
it, in violation of Rule 7.3(a)(1).

20. This Committee cannot answer questions of law. Accordingly, we
cannot determine whether private responses to a layperson's specific
request on a real-time or interactive computer-accessed site would
violate § 479 of the New York Judiciary Law, which prohibits
solicitation by attorneys. Nor can we determine whether § 479 or
the Rules regulating advertising and solicitation are constitutional in
light of Bates v. State Bar of Arizona, 433 U.S. 350 (1977), and
its progeny.

CONCLUSION

21. A lawyer may provide general answers (not individual advice) in
response to legal questions from laypersons on real-time or interactive
social sites on the Internet, but the lawyer may not engage in
"solicitation" absent compliance with Rule 7.3. If a person initiates a
request on the site to retain the lawyer, the lawyer may respond with a
private written proposal outside the site so that persons who did not
request the proposal cannot see it.

[fn1] We add that a lawyer who gives individual advice in a chat room or
on a public social media site might also be establishing
an attorney-client relationship without undertaking the conflict check
required by Rule 1.10(e) and would be revealing privileged legal advice
in a public place in violation of Rule 1.6(a)."