There is an old story about the grandfather who was hit by a truck and his grandson told him he should sue the truck driver.  The grandfather said he could not afford a lawsuit.  The grandson reminded him that he could get a lawyer on a contingent fee and the grandfather said, “Oh, I got enough money to afford a lawyer.  I cannot afford the judge.”

We talk all the time about lawyer’s ethics, but we also need to occasionally talk about judicial ethics.  At the start of modern trials, one of the warnings that judges give to jurors is that the jurors are not to google the parties, or go drive by the site of the wreck, or do any independent research to help them decide the issues that will be presented to them.  “Limit yourself to what you hear in court,” we tell them.  Well, does the same thing apply to judges?

No one seriously argues that the judge cannot go do her own legal research and decide a case or a motion based on legal principles that the parties did not even bring up. It happens all the time, especially in Federal Courts where the judges have law clerks to do research for them. Is the judge’s research limited to case law, however?

Should a judge be permitted to look up a lawyer’s website when the judge has no experience with that lawyer?  We specifically tell the jurors not to do that.  What if the lawyer is applying for admission to that court for a specific case pro hac vice, as an out-of-state lawyer?  Can or should a judge be permitted to google the parties if the case is a jury trial and the jury will be making the fact-finding decisions?  We tell the jury not to do that.

Imagine a case where one party is proffering an expert witness to testify that trailer parks attract tornados, something like funneling of electrical ions because of the abundant aluminum siding, perhaps.  Imagine also that the other side is not really doing a very good job of showing that this is junk science.  Should the judge go online to check this expert out before she lets this expert testify in her court?  Can the judge do that, ethically?  Or, has the judge become an advocate for one side or the other when that occurs?

If the judge just lets the expert testify, basically because the other side did not do its job adequately to challenge the expert, the judge has given the expert the badge of credibility and her decision will be cited by the expert in other cases where he wants to testify as an expert.  The judge could be embarrassed by that.  The case could reach the wrong result.  Is that justification for the judge to go do independent scientific research before letting the expert testify?  And if such online research is permitted, is the judge competent to evaluate the research alone, without the aid of an expert?

These questions are not easy ones and different judges have different answers, depending on the circumstances.  I fear, however, that many judges are doing their own research online, just as jurors are, notwithstanding the judge’s warnings.  Technology is way out ahead of our ethical rules.  Perhaps in the mean time, we should at least have a rule that requires judges to disclose their independent research to the parties, so that the lawyers and the parties have the chance to respond to the conclusions that the judge may have reached from independant research.  By the way, a friend of mine once actually hired as an expert witness an electrical engineer who was doing research on whether the mass of aluminum represented in trailer parks might have some of ionic effect that resulted in a pull on thunderstorms, to explain why tornados always hit the trailer park.  He fired the witness when he found out about the research.

Writing a demand letter may not seem like down-and-dirty debt collection. You don’t interrupt people’s dinner or call them at work. But laws passed to prevent abusive collection practices may also apply to a lawyer who is simply sending a demand letter.

Many lawyers fail to recognize that their demand letter may violate the Federal Fair Debt Collection Practices Act (the FFDCPA).  This Act defines debt as an obligation to pay money arising out of a transaction undertaken primarily for personal, family or household purposes, what we generally think of as consumer transactions.  The statute would therefore not apply to transactions between two businesses or obligations arising out of tort claims.

The Federal law applies only to third-party debt collectors (attempting to collect the debt of someone else) and only to consumer debts. The Texas Debt Collection Act (the TDCA) applies to attempts to collect your own debts as well as third-party debts. Before you sign and mail that demand letter, ask yourself if you are collecting a consumer debt.  If the answer is yes, a quick review of these two statutes would be well advised.

In their demand letters, lawyers often fail to give the consumer the exact amount of the debt and the exact name of the creditor.  Both statutes also require the lawyer to affirmatively tell the consumer that he or she has 30 days to dispute the debt.  Also be careful not to make false or misleading representations to the consumer.  Lawyers, it seems, are accustomed to making threats they have neither the legal ability nor intention of carrying out.  When that type of exaggeration or puffery finds its way into a demand letter that is subject to the Federal or State debt collection statute, there is a significant probability that the lawyer has violated the statute.

Violations of the statute are subject to a one-year limitations period and can result in an award of actual damages, supplementary damages not to exceed $1,000 per violation, and attorneys’ fees.  While these claims are typically covered by your malpractice insurance, it is not uncommon to have the claim fall within your deductible or self-insured retention, so that you pay the damages yourself.

Before you write the next demand letter, prepare a checklist to avoid writing a letter subject to the debt collection practice statutes.

MySpace. Facebook. Twitter. For those of us of a certain age, let me explain that  they are internet-based, digital social networks, where you can join and then communicate with friends in numerous ways.

Most marketing people believe a Facebook page is essential today. The first thing you do when you join Facebook is complete your profile by answering questions about yourself.  They provide an opportunity for you to identify your religious, political, and sexual preferences.  Your profile can reveal a lot of personal information, so think before you complete your profile.

Your next act is usually to upload a photo for your profile page.  After that, you are ready to start gathering “friends.”  Once you find someone you know, you send a request to be friends.  That person confirms your request, and congratulations, you have a Facebook friend.

The importance of the “friend” designation is that only friends can see your profile, write on your wall, or add and tag pictures of you.  Be prepared to receive friend requests from people you do not know, or do not remember that you know. Those friends can write anything they want on your wall, including things that are defamatory or embarrassing. No one knows yet whether you can be sued for defamation based upon someone else’s words on your wall, but that lawsuit is probably coming.

You, of course, can delete postings on your wall, and the lesson here is to monitor your wall daily, to ensure there is nothing on your wall that you would be unwilling for the world to see.  Yes, only friends can see your wall, but each of them can also copy it and sent it around the world in a nano-second.

Remember that profile picture you uploaded of your country estate, with your Black Lab beside you?  That will not be the only picture that others can see.  Friends can add their own pictures of you, and they will automatically cross reference to your profile page. Remember, some of your friends may be judges, clients or potential clients.

Lawyers sometimes tout recent successes or comment on their cases on Facebook. Such postings could disclose confidential information or be an ex parte communication if you are friends with a judge.  In addition, postings on Facebook are probably subject to Disciplinary Rule 7.02, which severely restricts what a lawyer can say about past successes.

Social networks are here to stay, and lawyers will use them, both as personal and professional networks. But like atomic energy, internet social networks can provide power to run your life and practice, or they can explode into unimagined problems.  Do not take them lightly.

One last thing, will you be my Facebook friend?