New York’s New Pro Bono Requirement – What Is All The Fuss About?

Generally speaking, in order to become a lawyer in New York you must get a law degree (3 years), pass the bar exam, pass a professional responsibility exam and pass a character assessment test.  Going forward the 10,000 or so prospective lawyers who meet all of these requirements will also be required to perform 50 hours of pro bono legal services before they can become lawyers.

This has caused a stir among some who say that this is among other things “indentured servitude.”  Another wrote, “I feel really bad for law students that graduate these days. And having brand new attorneys forced to be the ones to handle most pro bono smells like bad policy considering they have little to no experience and will invariably do a bad job of it.”

I am not sure what all of the fuss is about and I think a mandatory pro bono requirement is a fantastic idea!  A few points on this topic.

First, 50 hours is the amount of time you will spend during your first week of employment.  We are talking one week of work spread out over your law school career and the year after it.  The requirement is certainly not locking you into some long drawn out act of service.  It is 50 hours not 50 weeks or years.  In many countries, you must article (practical training) for next to no money before becoming a lawyer and this requirement is often 2 years.  Come on it is 50 hours helping those who need the help. 

Second, the requirement will not impact the majority of students as they already fulfill the requirement in law school.  I went to a law school (Harvard) that has a 50 hour pro bono requirement in order to graduate and this policy is not uncommon in law schools.  At the end of the year, Harvard published the actual average number of hours per student and it far exceeded the 50 hours.  Moreover, the requirement can often be met by clinical work performed or any volunteer work done while in school. 

Third, the more practical experience that one gets while in law school the better.  In some cases, fulfilling this requirement will be done by meeting with clients, drafting legal documents and perhaps even arguing cases before administrative tribunals. I met my pro bono requirement by working in an immigration asylum & employment law clinic and I was able to do all of the items listed above.

Finally, what is wrong with giving lawyers a taste of what it is like to give back to the community?  Also, as lawyer help others for free, isn’t there another benefit where the at times negative view of lawyers can be reversed?  This idea of giving back is already emphasized and encouraged in our professional responsibility requirements so why not formalize this a bit for new lawyers. As discussed above, this will not have an impact on most but will give those who would never have considered pro bono work an opportunity to see what helping someone else out without getting paid feels like.

As far as I am concerned, it is just another requirement to become a lawyer the same way that sitting for the MPRE, getting a character assessment or taking certain courses are requirements.  Not sure why anyone would be against this.  I would be interested to hear your thoughts.

A Great Way To Market Yourself If You Are Looking For Or Will Ever Look For A Job

A few days ago I received an email from a first year law student, Justin, and he posed a very interesting question.  His email read;

“What is your personal opinion of law students having their own resume-styled website? I tried to do some research and could not find many that existed. Having an undergrad degree in Graphic Design, I've built my own. What do you think?”

Well my personal opinion is that setting up your own personal webpage to market yourself is an excellent idea! This idea extends far beyond law students and is an excellent thing to do for anyone including students in other disciplines, lawyers, and also any other professionals. This is a great idea for anyone that is or will be looking for a job and/or anyone that could benefit from positive marketing.

Here is Justin’s Site: www.justinhwalters.com

Justin is exactly the type of innovative law student that our profession needs and the idea of creating your own website to showcase yourself is something that I wish I had thought of.  Also, it is always a good idea to use part of your prior life (in Justin’s case marketing and graphic design) to make some money or compliment a new legal or professional life. 

       A few comments about this exceptional marketing tool.

Why Is Setting Up A Personal Website A Good Idea?

I started to write this section myself but then remembered that Justin had already done an excellent job summarizing on his website why setting up your own website is a good idea.  As such, I will copy his words which echo my exact thoughts.

“I believe there is a need for students to have their own websites with their resumes, portfolios, and contact information.  I believe it is beneficial for professional students, especially those studying law, to be able to place a personal website address on their business card or in the signature of their email.  Having a website can be appealing to prospective employers because it shows you are independent, creative and ready to advance into a more professional role.”

I will only add one additional point and that is that the webpage puts all of the relevant information that an employer wants (short bio, resume, writing sample, skills) in one place and makes it all easily accessible.  Given that employers spend very little time assessing candidates you want to make your information as easy to access as possible and A simple webpage accomplishes this. 

What Does It Take To Get Set Up?

I am not a web designer but am confident that with a bit of determination I could create a page like the page that Justin has created. Wordpress is the web design tool of choice but if you do not want to use that there are many other options available with templates that will get you started.  In terms of hosting the website, that costs around $5 a month (a more complex website would be maybe $8 a month because it has more space) and you will pay around $10 a year for domain name. (You should try and nab your own name – just think of where Barack Obama would be if he had not purchased his domain name www.barackobama.com years ago).   

It literally takes a few hours to set everything up and install a simple website and if you prefer not to do it yourself you can always hire Justin.  Justin can design a website just like his own for you (and I must say it is a very professional looking website) and his fees are extremely reasonable.  You can contact Justin through his website - www.justinhwalters.com.  As for the upkeep, if someone can operate Facebook, they can operate a Wordpress blog as it is really user friendly.

The Lowdown

In this economy you cannot afford to be at a disadvantage and it is important to ensure that you are constantly improving, marketing and selling your brand.  This should start early in your career and creating a website is a great networking and marketing tool.   Creating your own personal website also forces you to give some thought to what important things you want to showcase to the world and may encourage you to constantly reevaluate key aspects to showcase.

Here is an excellent example that demonstrates that proper networking and marketing goes a long way. In this case, Justin sent me his website a few days ago and as a direct result of his marketing and networking efforts, I am likely going to hire him to work on my new law firm website - www.legalservicesincorporated.com. I currently use a template (yes, I know it looks like a template) but will hire Justin to create something that is closer to my own style. How is that for marketing efforts quickly finding a job!  I am also certain that some of you reading this blog will contact him to work on your websites.  This is only one example of how innovation and marketing yourself in the new cyber world can increase your chances of success and put money in your pocket.

I would be very interested to hear your thoughts on the website idea and again please feel free to contact Justin if you need help with your website. His contact information is all on his website.  Here it is again. www.justinhwalters.com

The Three C’s of Law School Success: go to Class, go to Class, go to Class

The most important advice I can give you about doing well in your first year of law school is to go to each and every class.  Several people who were not doing well after the first term asked me for advice on how they could improve their grades and invariably they were people who did not feel that going to class was that important.  I cannot tell you how many times I heard, “He just repeats what is in the textbook” or “I go to most classes”.  Going to half of the classes will get you half the grade and if you do not mind a B- or C, then do not bother going to class. 

This advice is applicable for all years in law school but especially the first year.  Even in my third year of law school, I would read and brief a case and be surprised when I would attend class and find that I missed a significant point.  In addition, often when I read cases and then subsequently went to a class, I found that I may not have paid as much attention to the part of the opinion that the professor found most interesting.  If a professor finds a particular aspect of an opinion fascinating, you can bet that this aspect is what is going to show up on the exam. 

For example, in some cases the professor may find the dissent (when there is a panel of Judges who vote and the Judge who loses writes about why he disagrees with the majority opinion) the most interesting part of the case and you may have just skimmed this to focus on what the winners said. This is just one example but rest assured that almost all professors gear exams towards what was covered in class which is what they found most important.

In addition, when you do not go to class or when you know that you will not go to class, you do not prepare.  The briefs that you prepare to deal with the Socratic method of teaching go a long way towards increasing your exam scores.  If you know that you are not going to go to class, you may not prepare a brief at all.  Even if you do prepare something knowing that you will not go to class, it will not be as thorough as if you thought that you might be called on to answer questions.  While the Socratic method might be a bit of a pain, the good thing about it is that it keeps you up to date so that studying for the final exam is easier and with this advance preparation your studying will be more effective.

Finally, there is one more important reason to attend class.  In law school, in order to study for law school exams, almost all students make what is called an outline.  An outline integrates the key points from your class notes, your briefs and the professor’s syllabus.  It is an invaluable tool and if you do not have class notes, making an outline becomes difficult or impossible.

What Do I Need to Do to Transfer to Another Law School? - Part 4 of 4

Who is Eligible?

In order to apply for a transfer to another law school, you must go through the same application process that you went through to initially apply to law school.  There are some minor differences but for the most part the process is the same.  For most schools, you can use the LSAC process and fill out the transfer application (which is very similar to the original law school application) online.  You will require everything that you needed to apply to law school including a resume, a personal statement, letters of reference, transcripts and the completed application.  You must also provide your LSAT score but the schools will not place much, if any, weight on it.  The most significant factor that the schools will consider are your grades from your first year of law school.  Like everything else, the higher the better.

While most schools will want a complete picture, some are only interested in your first year grades.  For example, at New York University (NYU), the personal statement that they request is quite short and it does not have to talk about anything specific. Moreover, they do not require (or want) any letters of reference.  To contrast, Harvard, Yale and Columbia all require a comprehensive application complete with letters of reference, a resume and two page personal statements.

How Do Schools Select Who They Want?

In order to transfer to a top school, you will need top grades.  Harvard accepts around 25 transfer students a year and boasts that many transfer students could have been admitted if they applied there for their first year or are students that were waitlisted when they applied to Harvard in their first year.  You may know, Harvard’s entering class has a GPA very close to an A average and a LSAT score in the top 2%.  Yale only admits around 10 transfer students and the competition is very stiff.  In fact, many of the transfer students that were admitted to Harvard the year I was accepted were not accepted as transfer students to Yale.  (I did not apply to Yale so I will never know) 

As a rough guide, you should be in the top 10% of your class if you are applying to a top school.  This is by no means a cut-off and the number could change if you have some other compelling characteristics or you are transferring from a highly or lowly ranked school. The higher the ranking of your school, the lower your grades can be.  For example, if you are transferring from Columbia to Harvard, you could likely get away with an A- average (top 30%).  If you are transferring from Brooklyn Law School (ranked in the sixties), you will generally have to be in the top 5% of your class with other significant accomplishments. 

In addition to top grades, most of the transfer students at Harvard had a second Masters or Doctoral degrees or some other significant accomplishment.  Also,  law schools will look at other symbols of excellence such as success in Journals or Moot Court Competitions.  Moreover, work as a research or teaching assistant and participation in student groups during law school demonstrates that you can juggle classes along with other activities.  All of these accomplishments will help your application but the main thing the admitting school will look at is good old high grades.

Are There Disadvantages Associated With Transferring to A Different Law School? – Part 3 of 4.

           There are several factors that one should consider when deciding whether or not to transfer if your desire to transfer is based on an attempt to upgrade schools.  A higher rank does not always mean better and here are few things to consider.

You Will Lose Many of the Important Connections You Made in Your First Year

As noted in my last blog post, there is a substantial risk that you will lose some or all of the important connections that you will make in your first year.  This includes both students and professors.  Moreover, strong bonds have already been formed at the school you will go to and it may be hard to establish similar connections.

You May be Considered an Outsider at Your New School

As a transfer student, you will always be considered one step below the people that started at that school from the beginning.  This is particularly the case if you come from a lower ranked school. 

For example, one day after class, a Professor at Harvard took some students for drinks.  When he found out I was a transfer student and that I came from Brooklyn Law School (ranked in the 60s), he asked me if the other transfer students looked down on me because I came from a second tier school.  (Most of the transfer students came from other first tier schools ranked between 15 and 30).  If he thought that other transfer students would look down on me, you can imagine what he thought (or what some other students at Harvard thought/think) about transfers.  This is not a reason not to transfer but it is something to consider.  I became accustomed to the facial expressions of other students and professors when I told them I transferred.  In fact, after my second year, I intentionally did not mention I was a transfer student unless explicitly asked.

Your Grades May Fall & You May Not Be Eligible For Latin Honor Awards

People who get into top schools know how to take exams very well.  As such, you will find that the ability to get great grades when you transfer is more difficult. This of course depends on which school you are coming from as there is stiff competition in many top tier schools.  Generally speaking, if you transfer your grades will decrease and you will not be at the top of the class.  This is especially the case if you are transferring from a second tier school.  Do not get me wrong, it is quite possible to do very well at the new school and some end up in the top 10% or top 30%.  That being said, most transfer students were in the top 1-5% of their class in the school they transferred from and some were ranked number one.  As such, I am not talking about a significant drop in grades but a moderate drop.  For some, this is a big deal and you should consider whether it is important to you to be at the top of the pack or within the top 20%.  Do not be fooled into thinking that because you were a superstar at your old school, you will be one at the school you transfer to.

You should also investigate whether or not you will be eligible for Latin Awards when you graduate and exactly how any class ranking will apply to you.  Latin Awards are the Summa (top 1%), Magna (top 10%), Cumme Laude (next 30%).  Some schools do not permit transfer students to be eligible for Latin and other awards because they did not spend all three years at the Law School.  Moreover, very few schools, if any, will permit the high grades that you obtained at your first Law School to count in any calculation.  Depending on the law school, the Latin awards or class ranking will be very important and it may not be obvious to employers that you were ineligible.  Instead, all that they will see is that you were not in the top 40% and did not receive any awards. While ranking is not as important at a top school like Harvard or Yale, if you are transferring to a school that is say number 20 or 30, falling within the top rank levels of your class will be very important.

You May Move to Being A Small Fish in a Big Pond if You Transfer

Depending on the size of your school, as a top student you really stand out.  For example, after my first semester when I scored over a 4.0 GPA, the Dean of Student Affairs at Brooklyn Law School called me into her office to discuss my progress.  She was very pleasant and told me that she would do everything in her power to assist me.  Also, as a top student, I was offered a scholarship in my second year and it was very clear to me that the eyes of the administration were focused on me.

            When I transferred to Harvard, I was one of a class of 550 (plus another 100 LLM students) and I was clearly an outsider.  I had moved from a big fish in a small pond to a small fish in an ocean.  This was not just based on grades but also on the size of Brooklyn Law School and their ability to focus individual attention on top students.  Moreover, many students at Harvard were very well connected (sons of Judges and Senators) so standing out was even more difficult.

While none of the above mentioned items should stop you from transferring, you should consider them to assess whether a transfer is right for you.  The final post in this series will deal with what you have to do to transfer.

How Much of Jump in Rankings Is Needed to Make A Transfer Worth While? – Part 2 of 4

 Can I Transfer to an Ivy League School After My First Year?

If you get great grades in your first year of law school, you could be eligible to transfer to Harvard, Yale or another top school and this is an option you should keep in mind as your first year comes to an end.  A dream of attending an Ivy League school is well within reach if you do exceptionally well in your first year.  I am living proof! The school you want to transfer to will base their decision primarily on your grades and other achievement in your first year and your LSAT score and College grades will generally not matter.

How Big Does A Jump in Rankings Have To Be To Make A Transfer Worth It?

 

Many students wonder whether or not they should transfer schools based on a small jump in rankings.  I know one student who transferred from a school ranked around 70 in New York City to a school ranked around 60 that was also in New York City.  This move made absolutely no sense to me.  I met him during the summer at Brooklyn Law School (the school he transferred to) and he was not the sharpest knife in the drawer and this was evident by more than just his school change. 

The point of this story is that you should only change schools if the jump you are going to make is going to put you in a substantially better place than you are.  I could have easily transferred to Fordham law school (which is ranked in the 30s) from Brooklyn (ranked in the 60s) but I did not even apply because I did not believe that this type of move was worth it.

The key if you decide to transfer is to make sure that the jump is significant.  As s general guide, you should jump at least 35 points in the rankings and higher if you can.  Also, the move should move you from one tier to another or from a first tier school to a top 5 school.  I know students who moved from Brooklyn law school to schools ranked 20-30 and they had a tough time during the on campus interview process and did not substantially benefit from the transfer.

Are There Disadvantages Associated With Transferring?

While rankings are important, you should not change schools for a slight improvement in ranking.  This is primarily because some of the disadvantages of transferring will outweigh any minor benefit.  For example, when you start law school, you will be assigned to a section along with around 80 other students.  Everyone in your section will have the same classes and you will get to know them quite well.  You will all be going through the exact same experience and as a result you will form quite strong bonds and networks. These bonds and networks may result in lifelong friendships, business contacts and even marriage.  Do not underestimate the importance of these connections.  If you transfer, there is a substantial risk that you will lose some or all of these connections.  Moreover, strong bonds have already been formed at the school you will go to and it may be hard to establish similar connections.  Additional negative aspects of transferring to another law school will be discussed in a future post.

Why Should You Take My Advice

There are several reasons I hope you will take my advice.  First, it is tough to get accepted to a top law school and as a recent Harvard Law School graduate, I can provide sound advice and suggestions regarding how to improve your chances of getting admitted to or transferring to the school of your choice and how to do well in your first year of law school and beyond. 

Second, I also have direct experience with all of the topics that I will discuss in this blog.  For example, I transferred from Brooklyn Law School’s part-time program to Harvard Law School’s full-time program.  Given that I attended a first and second tier law school and was in a full and part-time program, I am able to competently discuss the experiences at both schools as well as address part-time student issues and the law school transfer process.  Also, I was selected for both Law Review and Moot Court in my first year so I can share my successful perspective.  In addition, I was also able to publish a 50 page paper in a law Journal while in law school so I can describe the process and give you pointers on how to put together and publish your own work.  Finally, I successfully completed both the New York and New Jersey Bar Examinations and will walk you through what to expect and how to be successful on those two or any other bar exams. 

Third, I can also provide sound advice on the job market.  For my first summer, I worked in a public interest job at the United Nations High Commissioner for Refugees.  For my second summer, I was offered and accepted a position with a top large Wall Street Corporate law firm.  Moreover, I very successfully completed the rigorous on campus recruitment process at Harvard.  My perspective in this regard is also unique as I am a “mature” student with a M.B.A and over 10 years of Investment Banking experience.  My age and work experience affords me the benefit to provide insightful comments on finding employment and the culture of large organizations.

Fourth, I started documenting all of my law school success tips while a student at Harvard Law School law so all of my advice was documented  almost immediately after I had the experience.  This blog will not bore you with general academic summaries or broad generalizations.  The writer is someone who is in touch with exactly what you want to know and are struggling with. 

Finally, this blog will answer your questions.  During law school, I often had many questions and few answers and I personally had questions on all of the topics that I will discuss in this blog.  While I ultimately received answers to my questions, it was often through a process of trial and error and after time consuming research.  You will receive practical time and money saving tips that will help you on a daily basis in law school, and this advice is coming from a law student’s perspective and from someone who just went through what you are now or will go through.

         I wish that I could have found a blog like this when I started the law school process as it would have been a great help.  You though, will not have to worry about not having the information that you need and will benefit from my experience.

FSB Welcomes Tom Clark

A warm welcome to J. Thomas "Tom" Clark who recently joined Flaherty Sensabaugh Bonasso PLLC as Senior Counsel. Tom is a welcomed addition to our corporate practice group and will help to expand the level of representation that we provide our health care, oil and gas, coal and banking industry clients.

Tom comes to FSB with over 10 years of experience in handling business organization and commercial transactions. Tom received his undergraduate degree from Virginia Tech in 1993 and his J.D. from the University of Pittsburgh in 1997.

NLRB: Employees Protected Concerted Activity Extends to Faceboook and Social Media

Out of Connecticut comes an interesting case involving the use of social media in the workplace and its collision with employee protected concerted activity and employee freedom to associate without fear of employer retaliation under the National Labor Relations Act. The New York Times article, Company Accused of Firing Over Facebook Post, provides good background and details of the facts involved in the case.

American Medical Response of Connecticut, Inc. and International Brotherhood of Teamsters, Local 443, Case No. 34-CA-12576 (NRLB - Region 34), involves a complaint filed against American Medical Response for firing an emergency medical technician for among other things violating the company's policy of negatively depicting the company on Facebook or other social media sites. American Medical Response had denied the labor board's allegations and claims that the employee was discharged on various other grounds. The complaint contains the full language of the employer social media policies involved in the matter.

For those unfamiliar with the National Labor Relations Act, "protected concerted activity" is an employee right under the National Labor Relations Act that protects employees from employer retaliation for discussing working conditions. The National Labor Relations Act provides employees the right to associate together to improve working conditions, self organize, assist labor organizations and bargain collectively. The Act applies to activities by union and non-union employees.

This will be a fascinating case to watch to see how the new world of social media communication, connection, and association will be applied in the context of existing employee rights under the National Labor Relations Act. Similar protections may also be provided to employees who report issues to the Occupational Safety and Health Administration.

Employers who have implemented social media policies that restrict the rights of employees to utilize social media tools and website should review their policies to assess whether or not the policy unnecessarily restricts the rights of employees to associate and discuss their rights to discuss union related issues, wages, working conditions, and other rights protected by the Act.

FSB: Best Lawyers in America 2011

This past week I received notice that I was again selected by my peers for inclusion in The Best Lawyers in America® 2011 in the field of "Health Care Law".

In all, nine lawyers from Flaherty Sensabaugh Bonasso PLLC were selected for inclusion in The Best Lawyers in America® 2011. Congratulations to my partners, David Givens and Mark Robinson, who were selected for the first time this year in the category of "Medical Malpractice".

Below is a list of all the 2011 FSB honorees:

• Mike Bonasso - Commercial Litigation
• Stephen Brooks - Medical Malpractice Law and Personal Injury Litigation
• Bob Coffield - Health Care Law
• Tom Flaherty - Personal Injury Litigation
• David Givens - Medical Malpractice Law
• Ted Martin - Medical Malpractice Law
• Mark Robinson - Medical Malpractice Law
• Don Sensabaugh - Medical Malpractice Law and Personal Injury Litigation
• Jeff Wakefield - Bet-the-Company Litigation, Commercial Litigation, Medical Malpractice

Best Lawyers is based on an exhaustive peer-review survey in which more than 39,000 leading attorneys cast almost 3.1 million votes on the legal abilities of other lawyers in their practice areas. Corporate Counsel magazine has called Best Lawyers "the most respected referral list of attorneys in practice."

What Health Care Employers Need to Know about the West Virginia Patient Safety Act

Ryan Brown, a health care attorney at Flaherty Sensabaugh Bonasso PLLC who specializes in medical malpractice defense, health care regulatory work and health care related employment issues wrote this summary of the West Virginia Patient Safety Act.

In 2001, the West Virginia Legislature passed the Patient Safety Act (“PSA”), W.Va. Code § 16-39-1 et seq. The purpose of the PSA was to provide an avenue for health care workers to report instances of waste or wrongdoing without the fear of retaliatory or discriminatory treatment by their employers through termination, demotion, reduction of time, lost wage, or lost benefits. The PSA requires the identity of a health care worker who reports waste or wrongdoing to a health care entity (e.g., hospital, clinic, nursing facility, etc.) or appropriate governmental authority to remain confidential. Health care entities are also required to post a summary of the important provisions of the PSA on the premises for its employees.

It is important for health care entities to understand that the PSA prohibits retaliation or discrimination against a health care worker who made a good faith report; advocated on behalf of patients, services or conditions of a health care entity; or cooperated in any investigation relating to the care, services or conditions of the health care entity. A health care worker who has been retaliated or discriminated against by his or her employer in violation of the PSA may file a civil suit and recover payment of back wages, costs of the litigation, reasonable attorney fees, and even reinstatement.

Many employers in West Virginia have had experience with the West Virginia Human Rights Act (“WVHRA”), W.Va. Code § 5-11-1 et seq, and its exception to the “at-will” employment doctrine. The WVHRA prohibits discrimination on the basis of race, religion, color, national origin, ancestry, sex, age, disability, and familial status. The WVHRA has been used by former employees as a way to defeat “at-will” employment by alleging that they were wrongfully terminated based on a protected status, rather than for unsatisfactory job performance. Although initially designed to improve the quality of patient care, the PSA has also been used by some former health care employees as a way to get around the concept of “at-will” employment. For example, a discharged health care worker could potentially sue his former employer using the PSA to allege that he was discriminated against after he reported instances of the employer’s waste and wrongdoing.

Health care entities must take special care not only to document the unsatisfactory performance of its employees, but also document and investigate complaints of waste or wrongdoing to shield itself from such PSA lawsuits. These lawsuits can be quite complicated as they encompass elements of both employment litigation and medical professional liability litigation.

Reversal of Conviction Because Undisclosed MySpace Friendship Between Defendant and Juror

Brian Peterson posts on a fascinating West Virginia Supreme Court of Appeals decision involving the use of social media between a juror and defendant and the issue of disclosure of such connections during voir dire.

In State v. Dellinger, No 3573 (W.Va. Supr. Ct. June 3, 2010) (PDF version) the West Virginia Supreme Court reversed a felony conviction of a Braxton County Sheriff due to a juror's "complete lack of candor" during voir dire. The juror and defendant were MySpace friends, but hardly knew each other. The Court found that the juror should have disclosed the relationship.

The Court describes the juror misconduct as follows:

At the direction of the trial judge, an investigation into alleged juror misconduct was conducted concerning Juror Amber Hyre. During the course of the investigation and at the June 11, 2008, hearing, it was learned that on February 7, 2008, approximately one week before Appellant's trial began, Juror Hyre sent a message to Appellant on “www.MySpace.com,” a social networking website. In that message, Juror Hyre, known as “Amber,” wrote to Appellant:

Hey, I dont know you very well But I think you could use some advice! I havent been in your shoes for a long time but I can tell ya that God has a plan for you and your life. You might not understand why you are hurting right now but when you look back on it, it will make perfect sence. I know it is hard but just remember that God is perfect and has the most perfect plan for your life. Talk soon!

According to Juror Hyre, after she sent this message to Appellant, the two became MySpace “friends,” which allowed Appellant to view postings on Juror Hyre's MySpace page and vice versa.

At the end of the decision, the Court in footnote 11 highlights the need for lawyers and judges to instruct jurors of their responsibility and provides a cautionary note to them about using technology during the trial process and deliberation. The Court provides a link to the model jury instruction developed by the Committee on Court Administration and Case Management of the Judicial Conference of the United States. I previously blogged about this Model Jury Instruction here.

The footnote reads:

As noted above, Juror Hyre posted a message on her MySpace page during the course of the trial in which she wrote, “Amber Just got home from Court and getting ready to get James and Head to church! Then back to court in the morning!” Next to “mood,” she wrote the word “blah.” The trial court found that Juror Hyre “did not state which trial she was hearing or any facts or opinions about the trial.” Though this Court does not condone any communication about a case by a sitting juror, we agree with the trial court's apparent finding that Juror Hyre's posting was benign in nature. We believe that, standing alone, it was not sufficient to find that she engaged in juror misconduct. However, we also believe some cautionary words are warranted concerning the prominent presence of the internet and routine use of and dependence upon various technologies by everyday Americans called to jury service. In an effort to preclude jurors from using cell phones, computers and social media websites such as MySpace, the Committee on Court Administration and Case Management of the Judicial Conference of the United States has endorsed a model jury instruction for federal district court judges to help deter jurors from using such technology for improper purposes (such as communicating about their case or conducting their own research). [Rules for Jurors: No Talking, Texting, Tweeting,] The National Law Journal, February 9, 2010, available at http//www.law.com/jsp/law technologynews/PubArticleLTN.jsp?id=1202442983764. For example, the jury instruction to be given before trial cautions, inter alia:
I know that many of you use cell phones, Blackberries, the internet and other tools of technology. You also must not talk to anyone about this case or use these tools to communicate electronically with anyone about the case. . . .You may not communicate with anyone about the case on your cell phone, through e-mail, Blackberry, iPhone, text messaging, or on Twitter, through any blog or website, through any internet chat room, or by way of any other social networking websites, including Facebook, MySpace, LinkedIn, and YouTube.”

The jury instruction to be given at the close of the case similarly provides:
During your deliberations, you must not communicate with or provide any information to anyone by any means about this case. You may not use any electronic device or media, such as a telephone, cell phone, smart phone, iPhone, Blackberry or computer; the internet, any internet service, or any text or instant messaging service; or any internet chat room, blog, or website such as FaceBook, MySpace, LinkedIn, YouTube or Twitter, to communicate to anyone any information about this case or to conduct any research about this case until I accept your verdict.

We note that, presently, there are no similar uniform standards for jurors in state trials. Id.

Lesson: If you are called for jury duty be sure to review all your MySpace, Facebook, Twitter, etc. contacts to make sure you have no connection to the parties in the matter. The case also highlights that technology has allowed all of us to develop new (more extended, not necessarily deeper) relationships with people that we don't really consider part of our "in person" social circle.The case also points out that jurors need to "go off the grid" during trial and deliberation process.

To get the full context of what occurred I recommend reading the full decision. Also, jump over to Brian's blog post to read more of his comments on the decision. I agree with his conclusion, "It's clear that voir dire and jury instructions need to catch up with technology."

UPDATE (6/15/10): Eric Goldman at the Technology & Marketing Blog and Molly DiBianca at Going Paperless provides additional analysis and thoughts on the decision.

UPDATE (6/18/2010): Ry Rivard at the Charleston Daily Mail covers the decision in his story, Web stirs problems in jury selection.

AHLA Connections: Legal Implications of Health Care Social Media

The current issue of the American Health Lawyers Association's Connections magazine features an article I co-authored with fellow AHLA health lawyer, Jody Joiner, on the impact of social media use in health care.

The article, Risky Business: Treating Tweeting the Symptoms of Social Media (PDF version), is featured in the March 2010 issue of AHLA Connections (Vol.14, No. 3, March 2010), a health lawyer magazine for the health and life sciences law community.

We provide background context on the use of social media tools by health care providers, address why we think health lawyers need to understand social media, and explore some of the legal implications as social media and the law intersect. The article ends with practical guidance to health care providers and organizations on implementing policies emphasizing the appropriate use of social media.

You can peruse the complete digital edition of the March 2010 AHLA Connections (Vol. 14, No. 3, March 2010). AHLA members should also check out the article in this issue on the recently launch Health Law Wiki. Great to see AHLA adding a wiki resource for members to share their expertise and experience in the complex and ever changing health care legal and regulatory world.

Special thanks to the AHLA Connections staff for allowing Jody and I the opportunity to write the article and for their great editorial assistance.

HITECH Law Blog

A warm welcome to fellow AHLA member and health law blogger, Kathie McDonald-McClure.

I just ran across her blog, HITECH Law Blog. She focuses the blog on health information technology, privacy and security and the blog was named after the HITECH Act. Looks like a great addition to the health law blogosphere.

Ms. McDonald-McClure is a member of the Health Care Services Team at Wyatt Tarrant & Combs, LLP in Louisville, KY.

AHLA Hospital's Friend or Foe: The Age of Social Media and Health 2.0

Today Jody Joiner and I presented at the AHLA Hospitals and Health Systems Institute on the use of social media by hospitals and health care providers. We provided an overview of social media use by hospitals and health care providers, discussed the pros/cons of using social media in the health care environment, presented case studies of the risks and legal implications and did a short role play involving tweets in the context of a medical negligence case. We also provided those attending with recommendations on developing social media guidelines and policies.

To show the speed and ease of using social media tools to spread information, news and photos we we did some live shots during the presentations using an iPhone that were then loaded up to my blog, Twitter and Facebook. We then pulled up the posts and tweets at the end of our hour presentation.

Great audience with great follow up questions. Thanks go out to Mark Browne (@ConsultDoc) and Peter Leibold (@HealthLawyers) for live tweeting during the session.

Model Jury Instruction: Warning Jurors on Use of Electronic Technology and Social Media

The Committee on Court Administration and Case Management of the Judicial Conference of the United States has issued a memo regarding Juror Use of Electronic Communication Technologies.

At its December 2009 meeting, the Judicial Conference Committee endorsed a set of suggested jury instructions that federal district judges should consider using to help deter jurors from using electronic technologies to research or communicate about cases while they serve as jurors. The recommended instructions were developed as a result of the increased use of web enabled mobile phones and devices that can be used to research information and communicated in a variety of ways, including email, social media, etc.

The Proposed Model Jury Instruction reads as follows:

Proposed Model Jury Instructions

The Use of Electronic Technology to Conduct Research on or Communicate about a Case Prepared by the Judicial Conference Committee on Court Administration and Case Management

December 2009

Before Trial:
You, as jurors, must decide this case based solely on the evidence presented here within the four walls of this courtroom. This means that during the trial you must not conduct any independent research about this case, the matters in the case, and the individuals or corporations involved in the case. In other words, you should not consult dictionaries or reference materials, search the internet, websites, blogs, or use any other electronic tools to obtain information about this case or to help you decide the case. Please do not try to find out information from any source outside the confines of this courtroom.

Until you retire to deliberate, you may not discuss this case with anyone, even your fellow jurors. After you retire to deliberate, you may begin discussing the case with your fellow jurors, but you cannot discuss the case with anyone else until you have returned a verdict and the case is at an end. I hope that for all of you this case is interesting and noteworthy. I know that many of you use cell phones, Blackberries, the internet and other tools of technology. You also must not talk to anyone about this case or use these tools to communicate electronically with anyone about the case. This includes your family and friends. You may not communicate with anyone about the case on your cell phone, through e-mail, Blackberry, iPhone, text messaging, or on Twitter, through any blog or website, through any internet chat room, or by way of any other social networking websites, including Facebook, My Space, LinkedIn, and YouTube.

At the Close of the Case:
During your deliberations, you must not communicate with or provide any information to anyone by any means about this case. You may not use any electronic device or media, such as a telephone, cell phone, smart phone, iPhone, Blackberry or computer; the internet, any internet service, or any text or instant messaging service; or any internet chat room, blog, or website such as Facebook, My Space, LinkedIn, YouTube or Twitter, to communicate to anyone any information about this case or to conduct any research about this case until I accept your verdict.

HISPC Reports on State Health Information Law, Business Practice and Policy

The Office of the National Coordinator for Health Information Technology (ONC) has made available a compendium of reports which detail variations in state health information law, business practices and policy related to privacy and security of health information and the electronic exchange of health information.

The reports were developed in 2009 as a part of the ongoing efforts of the Health Information Security and Privacy Collaboration (HISPC) that started in 2006 when I had the the opportunity to work on the initial round of HISPC work as it related to West Virginia. The efforts by HISPC was to take a national look (at a state level) on the privacy and security challenges faced by the variation of state laws, policies and practices.

The reports will be a great resource for those who regularly look at state health information legal issues. Following are the summaries of the five reports along with links to the various tables/appendices:

• Report on State Medical Record Access Laws This report analyzes state laws that are intended to require health care providers (specifically, medical doctors and hospitals) to afford individuals access to their own health information and to identify potential barriers to the electronic exchange of health information. Specific state law provisions examined: scope of medical records to which patients are afforded access, format of information furnished, deadlines for responding to requests, fees for furnishing copies, record retention laws and access to records of minors.
• Report on State Law Requirements for Patient Permission to Disclose Health Information In Phase I of the HISPC project a majority of participants reported significant variation in the business practices and policies surrounding the need for and process of obtaining patient permission to use and disclose personal health information for a variety of purposes, including for treatment. This report furthers the initial work of this project by collating and analyzing state laws that govern the disclosure of identifiable health information for treatment purposes to identify commonalities and differences.
• Releasing Clinical Laboratory Test Results: Report on Survey of State Laws For this report, state statutes and regulations were analyzed to determine to whom clinical laboratories may release test results. This report focused on clinical laboratory and hospital licensing laws (that contain standards for hospital laboratories). It also examined general state medical record access laws to determine whether they provided an avenue for patients to access their clinical laboratory results directly.
• Report on State Prescribing Laws: Implications for e-Prescribing This report identifies and analyzes the impact and variation of state laws related to e-prescribing. The report addresses state laws related to the e-prescribing of controlled and non-controlled substances as well as topics such as record keeping and content requirements, out-of-state prescriptions, and generic substitution laws.
• Perspectives on Patient Matching: Approaches, Findings, and Challenges This report analyzes various approaches to matching patients to their health information in the context of electronic health information exchange. Current and potential methods for matching patients to their health records are discussed, challenges to performing patient matching such as scalability and ease of use are analyzed, and the types of information some HIOs use to match patients to their health records is described.

The Saga Over The Privacy of Medicare Claims Data Continues . . .

Guest post by Michele Grinberg, my colleague in the Health Care Practice Group at Flaherty, Sensabaugh Bonasso PLLC.

Through indirection find direction out? With apologies to William Shakespeare, the U.S. Court of Appeals for the11th Circuit and D.C. circuit say: NO, not this time.

In Jennifer D. Alley, Real Time Medical Data, LLC v. U.S. Dept. of Health and Human Services, issued Dec. 18, 2009, the Court held that plaintiffs Alley & Real Time Data cannot obtain certain Medicare data for procedures performed in Florida, Georgia, Mississippi and Tennessee by AMA physicians and for all Florida physicians (the certified class). Specifically, Medicare Part B raw claims data that could easily be matched to a particular physician and then aggregated to calculate the total annual Medicare payment by physician cannot be disclosed to Alley. Alley had sought the information through filing a federal Freedom of Information Request (FOIA).

The reason? Because the Florida District Court in 1979 issued a permanent injunction in Florida Medical Assn. v. Dept. of Health Education & Welfare, prohibiting DHHS (then HEW) from disclosing “any list of annual Medicare reimbursements…for any years, which would personally and individually identify those providers of services …. Any such disclosure of annual Medicare reimbursement amounts, for any years, in a manner that would personally and individually identify the providers….is contrary to federal law.” (quoted in Alley)

Judge Carnes in a well-authored opinion (for those of you, like me, who care about good writing) enjoys the irony of hearing argument that sounds much like the health policy arguments heard in the mid-1970s. His second sentence reads: “The present national debate over health care rhymes a lot with one that took place three decades ago.” But whether it’s still good policy or not, Judge Carnes holds that plaintiffs cannot collaterally attack the 1979 injunction by arguing it does not apply to the data sought or the context has shifted in favor of disclosure or the reimbursement methodology has changed. Rather, if plaintiffs believe the injunction is no longer valid, their recourse is to go back to the court where the injunction issued and challenge it there.

In a footnote, the 11th Circuit references a recent 2009, United States of Court of Appeals D.C. Circuit, decision: Consumers’ Checkbook, Center For Study of Services. v. U.S. Department of Health and Human Services. The lower court’s holding in this case was discussed in this blog in 2008 (Consumers' Checkbook v HHS Update). In the 11th Circuit footnote (No.9), the court observes that in a factually similar case, the D.C. Circuit has held that FOIA exemption 6 permits DHHS to not disclose the requested Medicare data. FOIA exemption 6 protects from disclosure government agency files that constitute “a clearly unwarranted invasion of personal privacy.”

What we have then are two cases: one that upholds a 1979 injunction which enjoins DHHS from providing Medicare data that can be manipulated to identify annual reimbursements to individual physicians and other providers but which injunction reaches only the certified class of providers (identified above); and a second case that holds that providing similar Medicare data that can be tied to individual providers is protected from disclosure by a FOIA exemption. Thus, data elements which might indirectly seem disclosable are not if they lead to a resulting disclosure which invades personal privacy. We will see what changes health insurance reform brings, if any.

The AMA provides additional analysis of the decision in a story posted January 11, 2010, Appeals court rejects effort to sell Medicare physician claims data. Also, Law.com reports on the decision in its article, Mark Twain Lives On in Federal Judge's Ruling on Release of Medicare Data.

2010 AHLA Hospitals and Health Systems Law Institute: Hot 2010 Health Law Legal Topics

Although it is cold today in West Virginia - I'm hoping it will be hot in Florida in February.

I thought I would take a moment on this cold wintry day to write about the hot health topics that will be discussed at the American Health Lawyers Association (AHLA) Hospitals and Health Systems Law Institute scheduled for February 25-26, 2010 at the Doral Golf Resort & Spa in Miami, Florida (Conference Brochure PDF).

I will be speaking at the Hospitals Law Institute along with my colleague, Jody Joiner, Assistant Operations Counsel at Sisters of Charity of Leavenworth Health System. Our topic scheduled for Friday, February 26 is Hospital’s Friend or Foe: The Age of Social Media and Health 2.0 where we plan to cover:

• The social media technology tools used by health care providers and hospitals
• Pros/cons and legal implications of social media and health 2.0 services such as blogs, wikis, social networking, podcasting, video sharing, etc.
• Best practices and development of policies and procedures which address staff and employees using social media

In addition to our session there will be variety of "hot" health law legal topic covered at the conference that will interest hospital administrators and their legal counsel, including sessions on government data mining to identify hospital compliance, understanding the recent ARRA HITECH developments impacting HIPAA and EHR, hospital/physician collaboration and relationships, best practices in hospital practitioner credentialing, peer review and privileging, voluntary disclosure strategies, hospital clinical research issues, and much more.

The AHLA Hospital and Health System Law Institute overlaps with the AHLA Physicians and Physician Organizations Law Insitute which will be held on February 24-25.The Physician Law Insitute will include "hot" physician topics on on call payments, Accountability Care Organizations, HITECH, disruptive physician behavior intervention, Stark issues for physicians, hospital/physician mergers, FMV for physician compensation and much more.

You can register for one or both. As an AHLA Member I regularly attend the Physician/Hospital Law Institutes every year or so because of quality and breadth of health law related materials for those who work in the health care industry. More information, along with how to register, can be found at the AHLA website:
Hospitals and Health Systems Law Institute
Physicians and Physician Organizations Law Insitute

Lorman Medical Records Law Seminar: March 18, 2010

On March 18, 2010 I will be speaking on Medical Records Law at a seminar in Charleston, West Virginia. The seminar is sponsored by Lorman Educational Services. Joining me for the day long seminar will be three very knowledgeable health care colleagues:

• Michael T. Harmon, MPA, CIPP/G, Compliance Specialist for the West Virginia Mutual Insurance Company, a Medical Professional Liability Insurance Company
• Sallie H. Milam, J.D., CIPP/G, Executive Director of the West Virginia Health Information Network and Chief Privacy Officer for the West Virginia State Government
• James W. Thomas, Esq., Manager of the Charleston, West Virginia Business Law Department of Jackson Kelly PLLC whose practice focuses primarily upon health care matters of a business, regulatory and operational nature
  

Additional information about the seminar and how to register can be found at Lorman Educational Services. Following is the full seminar agenda:

8:30 am – 9:00 am			Registration
9:00 am – 9:15 am			Overview
9:15 am – 10:30 am			HIPAA Compliance: Reality and Perspective
			— Michael T. Harmon, MPA, CIPP/G
			Overview Enforcement Complaints Case Examples Summary of HITECH Changes
10:30 am – 10:45 am			Break
10:45 am – 12:00 pm			HITECH Financial Incentives for Implementation of HIT
			— James W. Thomas, Esq.
			Qualifying an Electronic Health Record System Available Financial Incentives
12:00 pm – 1:00 pm			Lunch (On Your Own)
1:00 pm – 2:00 pm			Health Information Exchange in West Virginia: Impact on Patient Records
			— Sallie H. Milam, J.D., CIPP/G
2:00 pm – 2:15 pm			Break
2:15 pm – 3:30 pm			Consumer Driven Health Care: HITECH, Health 2.0, Social Media and Personal Health Records
			— Robert L. Coffield, Esq.
			HITECH Breach Notification Requirements Impact of Health 2.0 and Social Media Technology on the Future of Health Care Development and Adoption of Personal Health Records Discuss the Legal Implications of Emerging Technology
3:30 pm – 4:30 pm			Panel Discussion
			— Robert L. Coffield, Esq., Michael T. Harmon, MPA, CIPP/G, Sallie H. Milam, J.D., CIPP/G and James W. Thomas, Esq.