Sunday, November 16, 2014

Deposition Tweeting

Everyone knows that Illinois prohibits tweeting while operating a motor vehicle. 625 ILCS 5/12-610.2 (here) bans the use of any electronic communication device when driving. Avid cyclists also know that a Chicago ordinance (here) prohibits tweeting while operating a bicycle. Going a step further, one judge believes that lawyers should not tweet while conducting a deposition.

According to an ABA Journal article (here), a Texas state court judge has barred live tweets during the deposition of a former county sheriff who is being sued for allegedly receiving illegal campaign contributions. Lamenting the lack of guidance on the live-tweeting issue, the judge accurately observed that “[o]ur technology is far out pacing our ability to formulate rules.”

If an Illinois judge allowed the tweeting of deposition testimony, Illinois Rule of Professional Conduct 1.6(a) would require that the tweeting lawyer first obtain her client’s informed consent. Rule 1.6(a) prohibits an attorney from revealing information relating to the representation of a client without the client’s informed consent. That prohibition applies to all information regarding the representation and is not limited to secret or confidential information, or information received from the client.  And even if an Illinois judge does permit deposition tweeting and a client is willing to consent, hopefully counsel will devote his time and energy at the deposition to adequately representing his client rather than to keeping his “followers” updated or entertained.

Monday, November 3, 2014

Election Ballot "Selfies"

In the late 1800s, New Hampshire enacted legislation prohibiting voters from showing their completed ballots to anyone for the purpose of proving how they voted. The statute sought to address the apparently widespread problem of politicians purchasing votes for their candidates. Effective September 1, 2014, the New Hampshire legislature updated the law to specifically prohibit persons from “taking a digital image or photograph of his or her marked ballot and distributing or showing the image via social media or by any other means.” The American Civil Liberties Union has filed suit claiming that the law violates the First Amendment.

Illinois does not have a similar statute. Section 29-9 of the Illinois Election Code makes it a Class 4 felony for a person to “knowingly mark[] his ballot or cast[] his vote on a voting machine or voting device so that it can be observed by another person.” Section 29-9 also prohibits anyone from knowingly observing a voter marking a ballot. And while a Peoria Journal Star article  indicates that it might be a violation of this statute to take a photograph of a completed ballot and then post it on social media, that interpretation seems strained.  The statute is clearly intended to prevent a person from standing in such proximity to a voter in the polling place so as to allow observation of the actual act of voting. The law does not mention displaying a completed ballot after the fact. Even a New York law that specifically prohibits showing a marked ballot to another has reportedly been interpreted by lawyers of the New York State Board of Elections as not prohibiting the posting of a ballot photograph on Facebook.

Whether legal or illegal under the Election Code, people might consider the advisability of displaying their voting record on the internet in perpetuity.