Founding of RECAP

Great post on the Cornell Legal Information Institute‘s blog, Vox PopuLII, on the events that led to the development of RECAP.  I don’t entirely understand what made the feds so nervous about the mass downloading of documents that are already open to the public–we’re not talking about private diplomatic correspondence, à la Wikileaks, after all.  My guess is they felt they were being “robbed.”  PACER at the time was available for free only through a few designated computers in a few designated locations, hence only a few people with time (read: not attorneys) would use the terminals to access a few documents from cases of personal interest.

Certainly the courts do not “own” filed documents and cannot claim a financial stake in them.  An interesting comparison lies between documents filed with the court and court opinions, which are created by the court.  Courts have never monetized those opinions, as far as I am aware; in fact, courts have provided those opinions freely to publishers like West and Lexis for decades.  The law has been clear for a long time that courts do not have a copyright interest in their opinions.  Yet opinions are the work of the court, while filings (and most of the documents available through PACER) are not.  It is ironic that they managed to monetize the latter and not the former, although understandable considering the history of access of court documents.

Crowdsourcing legal advice for corporations

LawPivot made the news this past week by securing $600,000 in funding from a group of investors that includes Google Ventures. This funding is in addition to $400,000 the company received previously from investors. An invitation-only site, LawPivot allows companies to submit a legal question to multiple attorneys for their responses. After entering the subject of the question and “other characteristics that are most important to you” (LawPivot: How It Works), LawPivot’s search engine recommends attorneys the company can select to answer the question. The process is confidential. According to the ABA Journal, a Pillsbury Winthrop attorney signed three new clients by participating in LawPivot. Although it is free to use the site now, eventually LawPivot plans on charging for the service.

Is this a good strategy for attorneys to look for new business? Would you feel comfortable engaging in a casual attorney-client relationship like this?

What about using crowdsourcing in different manner, to develop a legal treatise/practice guide using a site similar to Wikipedia? For an excellent discussion of this topic, see Staffan Malmgren’s post Crowdsourcing Legal Commentary on VoxPopulii, the blog of the Cornell Legal Information Institute. Check out this Mashable post for examples of other crowdsourcing sites.

Lawyers, ethics, and social media

It seems like every other day there is a new article or blog post about social media and the law. The ABA Journal Magazine‘s February 2011 issue features an article by Steven Seidenberg entitled Seduced: For Lawyers, the Appeal of Social Media Is Obvious. It’s Also Dangerous is a bit better than many because it analyzes how specific ethics rules apply to the use of social media.

The article mentions the rich resource that social media can be for investigating people. All of the examples provided are from family law cases. Other examples I have come across involve workers’ compensation cases and the character of witnesses, victims, and defendants in criminal cases. I would be interested in hearing about other examples you have seen.

The ethics issue in performing this type of research is clearly how the attorney acquires the information. If the individual’s profile is publicly available, there seems to be no problem. But many times profiles are not publicly available. Then what? The easiest option is through your client, who may have access to the information. If the individual is represented by counsel, you cannot friend them–sending the friend requests violates ABA Model Rule 4.2 prohibiting communication with a party represented by counsel. The issue is stickier with a person not represented by counsel. It is clear you or your investigator cannot use false pretenses to gain access to social network profiles (ABA Model Rule 4.1(a)), but what about withholding information? For example, your investigator could send a friend request to a witness, knowing that some people accept all friend requests. Is that OK?