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Your Digital Estate: What happens to your digital assets and social media accounts when you're gone?

9/24/2013

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For many estate planning attorneys, the interesting and increasingly vital issue of what happens to a person's "digital estate" after they die is just starting to come onto their radar screens. 

A digital estate might best be described as any file on your computer, storage drive or website, and any online account or membership that you have. It would include things like music, videos, photos, financial records, etc., stored on a computer or smartphone, or stored on a website like Shutterfly or Dropbox. It would also include your accounts on social media sites like Facebook, Twitter, LinkedIn, and Pinterest. 

The two big questions are: 

1) Who owns/can access the digital assets? Whenever you create any kind of online account, at some point you click a box or take some other action that binds you to the service provider's Terms of Service ("TOS"). And most service providers have policies in their TOS that govern what happens upon the death of the account holder. These TOS, for now, trump the rights and powers that a personal representative (i.e., an executor) is given by a court, and also trumps (as of this writing) all of the handful of state laws that have been created to address digital estates. The reason that TOS usually trump state statutes is because the few laws that have been enacted so far merely give an executor the power to handle/access digital assets "where otherwise authorized"--meaning, if a given service provider does not authorize an executor to control the account after the account holder's death, the statute doesn't override the service provider's restriction. Some proposed statutes would allow a personal representative to access a deceased person's accounts regardless of the TOS, but so far none have been passed. Until a time that such laws exist, the TOS will rule the day, and most TOS state that no third party can access a user's account, even after death. Thus, an executor or other personal representative, even though authorized by a court to settle the deceased person's estate--and essentially "standing" in the deceased person's shoes--cannot get access to the account. Some service providers will simply shut down the account and delete everything that was posted there by the deceased person. In a world where most photos are never printed and most correspondence is never put to paper, you can see why the ability to access a deceased person's cloud data storage account or email account or social media account is more important than ever. A Gmail account or text messages saved on a smartphone are the modern day equivalents of a trunk full of letters discovered in an attic in days of old. A Shutterfly or YouTube account is the closet full of dusty photo albums, videotapes, and reels of super 8 film. 

2) Who should be named to handle/administer the digital estate? The reality is that much of a person's digital estate may not be controlled by TOS, and even when digital assets are controlled by TOS, an executor armed with user names and passwords will likely ignore the TOS and simply access the online accounts to either shut them down or keep them active even after a person's death. Of course, I'm not suggesting that a personal representative bypass a service provider's TOS, but in actuality most will if they have the necessary information to do so. 

Back to the main question: Who to choose to handle the digital estate? In many cases, it will be the same person chosen as executor. But there is nothing to prevent a different person being named in a will to handle the digital estate. One can easily picture a scenario where a person might want, for example, a parent or adult child to settle their "regular" estate, but because of the highly personal, often intimate nature of email, text messages, and many social media sites, that same person might want a friend or someone else to shut down or otherwise administer those accounts. Perhaps a 29-year old who is creating a will wants his parents to settle his "regular" estate, but doesn't want his parents to be rooting around in his social media world or email folders, even after his death. However, he wouldn't mind a trusted friend doing so. Believe it or not, there are also third party service providers through which a person can either authorize the service to "kill" online accounts upon that person's death, or to grant access to such accounts to a personal representative. Deathswitch and Legacy Locker are two such services (although my mentioning them does not constitute an endorsement--I have no direct experience with either service).


Finally, a person can also provide instructions in his or her will about what should be done with digital assets and existing social media accounts. Or, he or she can leave it to the discretion of the person named to handle the digital estate. The will's instructions can be as specific or as general as the person creating the will wants them to be.

I have been monitoring developments in this area of estate planning law for about a year now, and have struggled with the question of whether I should raise the issue in the estate planning questionnaire that all of my clients and prospective clients fill out as a first step in the estate planning process. Although I work hard to make the process as easy as possible, estate planning is often already daunting to people without adding another layer of things to consider. So I asked myself: Is the whole social media issue large and important enough to warrant burdening a client with yet another decision to make? Finally, this past week, I decided that it was. For now, I am just asking the question of whether the client would like to discuss the idea of naming someone other than their "regular" executor to handle social media accounts and other digital assets. If the answer is 'no', that will be the end of it. If the answer is 'yes', then I'll address it with the client. In the future, as the law develops, I might become more or less assertive about the issue, but for now the fact that I'm raising it at all is, I hope, an added value to my clients. I also provide my clients with a document where, if they wish, they can write down their various user names and passwords, to keep with their estate planning documents and other important papers. This way, an executor can easily access the person's various online accounts when the time comes.

I will continue to stay at the forefront of this issue, and to monitor the emerging legal landscape. I invite you to leave a comment expressing your opinion on this subject, and/or ask any questions that you have. I'll do my best to answer them. If you would like a private, no cost or obligation discussion about this or other estate planning topics, please feel free to contact me anytime.

More soon. In the meantime, be well.


--Mike

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New Office, New Website, Enhanced Online Presence

9/17/2013

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For the past several months I have been working hard to revamp my website, both visually and substantively. I'm excited about how it all turned out, and hope it will be a source of valuable information to those who visit.

I have also committed myself to having a more active and robust online/social media presence. I have updated and overhauled my LinkedIn profiles (business and individual), as well as my Facebook business page. I even created a Twitter account. I look forward to using all three tools, plus this blog, to provide content that I hope you will find interesting and valuable. Even more important, I hope my social media activities will be interactive. I hope my posts will be the starting points of engaging conversations, and that they inspire you to ask questions and express your opinions about the topics at hand. I also hope you will suggest topics of interest to you, and I will make every effort to address those topics. 

So, with that in mind, I invite you to go ahead and follow me by clicking any or all of the links above, or by clicking the social media icons at the top right corner of my homepage.

Finally, I am pleased to tell you that my office is now located at 111 John Street, in the heart of Manhattan's Financial District, and just steps away from the many subway lines that pass through the Fulton Street station. My new location allows me to offer a wider and deeper array of services, more economically and efficiently than ever before, and I couldn't be happier about it. 

Well those are my big announcements for now, but please check back soon because I plan for this blog to be updated regularly with timely, plain-English discussions about current events in the legal world.

Thanks for stopping by, and I look forward to hearing from you.

--Mike Bond 

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Social Networking Sites and Legal Ethics

8/3/2011

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As you can imagine, sites like Facebook and Twitter can be veritable gold mines for a lawyer when trying to collect information either helpful or harmful to his or her client's cause. Over the past few years countless questions have been raised regarding the ethics of using social networking sites for reasons such as looking for evidence of infidelity in divorce cases, incriminating evidence in criminal cases, and impeaching evidence in personal injury cases. Questions have also been raised about the propriety of monitoring jurors' social networking pages for evidence that the juror has been discussing the case or violating other court rules.

When such ethical questions arise in the legal profession, lawyers usually look to a relevant bar association for an opinion on the issue. Recently, several ethical issues related to social networking sites have been addressed by various New York bar associations, while many more questions remain to be addressed in the future. 

An article in the August 3 edition of the New York Law Journal discusses three recent opinions issued by three different New York bar associations, as well as several key issues yet to be resolved. I realize that this topic might be of limited interest to non-lawyers, but my hope is that it will shed some light on a few of the possible legal consequences/implications of using social networking sites, as well as give some insights into the limitations placed on lawyers when attempting to use such sites for the benefit of their clients.

The first ethics opinion was issued by the New York State Bar Association (NYSBA) and addressed whether a lawyer may access Facebook or MySpace pages of a party to pending litigation (other than the attorney's client) if the lawyer does not "friend" the party, but instead accesses only the pages that are accessible to all members of the social networking site. The NYSBA decided that such actions were permissible, but cautioned that it is ethical only if the lawyer doesn't "friend" the other party or direct someone else to do so.  This opinion certainly sends a warning to people about the risks of allowing too much information to be seen by anyone visiting a given social networking site. Better to use those privacy settings and limit access to people you know.

The second opinion was issued by the New York City Bar Association (NYCBA) and addressed whether a lawyer may contact an unrepresented person (such as a potential witness who has not retained an attorney) through a social networking site and request access to his or her page to obtain information for use in litigation. (As a side note, the question was limited to people not represented by an attorney because the Rules of Professional Conduct prohibit attorneys from contacting people they know to be represented by a lawyer unless he or she has permission from that person's lawyer to do so.) With respect to the question posed, the NYCBA decided that doing so is permissible as long as the attorney (or someone working on the attorney's behalf) uses his or her real name and profile to send the "friend" request, even if the attorney does not disclose that the reason for making the friend request is to obtain information for use in litigation. However, an attorney or someone working on his or her behalf cannot use a make-believe name or create a fake profile that is tailored to the background and interests of the person being "friended" in hopes of making it more likely that the person will accept the friend request.

The third and most recent opinion was issued by the New York County Lawyers' Association (NYCLA) and addressed whether lawyers may monitor jurors and prospective jurors' social networking pages. NYCLA decided that the passive monitoring of jurors, such as viewing a publicly available blog or Facebook page, is permissible as long as lawyers have no direct or indirect contact with jurors during trial. Lawyers may not act in any way that allows the juror to become aware of the monitoring (such as by sending a friend request). However, there is a wrinkle when it comes to sites such as LinkedIn and Twitter, which allow users to see who has recently accessed their profile. In its opinion, NYCLA strongly suggested that monitoring jurors through such sites might very well constitute an impermissible communication, since it might influence a juror's conduct with respect to the trial if the juror knows an attorney involved with the case has monitored the juror's LinkedIn or Twitter site. An even further wrinkle might arise if a lawyer discovers juror misconduct while monitoring the juror's social media sites. In such a case, can the lawyer use the misconduct for his or her client's benefit? The answer is no. Any misconduct must be reported to the judge before the lawyer engages in any further significant activity in the case.

As I mentioned earlier, there are many ethical questions yet to be addressed. Here is a quick rundown of a couple of them:

Competent representation: A lawyer has an ethical duty to provide competent representation to his or her client. So, does the failure to know how to navigate and use such sites amount to incompetent representation? For example, a recent study showed that 2/3 of divorce attorneys use Facebook as their primary source of online evidence. Thus, does a lack of familiarity with Facebook hamper an attorney's ability to provide competent representation, especially when their adversaries are likely to be using such online information? Some would argue that the answer is yes. Others would argue that attorneys have been competently representing clients in divorce cases for many decades without using evidence gathered from social networking sites. No doubt, the question will need to be resolved sooner rather than later.

Diligent representation: A lawyer also has an ethical duty to provide diligent representation to his or her client. If a lawyer doesn't search online for information favorable or detrimental to the client's case, and if a lawyer doesn't know that his client routinely posts information on social networking sites, and if a lawyer doesn't know how to navigate those sites, does that hamper the lawyer's effective and diligent representation? Time will tell.

The legal profession has never been accused of being on the cutting edge of technological advancement, but developments in online social networking have made it clear that the profession must move quickly in grappling with the countless ethical issues that this new technology has raised. It will be interesting (to me, at least) to see how the profession deals with these important issues.
 

DISCLAIMER: THIS IS ATTORNEY ADVERTISING. The information you obtain at this website is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation. Review of this website does not in any way constitute legal representation. Contacting Michael Bond or the Law Office of Michael Bond by telephone, fax, e-mail, or any other method does not constitute legal representation, nor is any information you provide protected by attorney-client privilege until otherwise advised.  
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    These posts have been provided by the Law Office of Michael Bond for general educational purposes and do not constitute legal advice or create an attorney-client relationship. For more information about the contents of these posts, or if you have any other estate planning questions, please contact Michael Bond at
    646-535-1529 or mike@michaelbondlaw.com.

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DISCLAIMER: THIS IS ATTORNEY ADVERTISING. The information you obtain at this website is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation. Review of this website does not in any way constitute legal representation. Contacting Michael Bond or the Law Office of Michael Bond by telephone, fax, e-mail, or any other method does not constitute legal representation, nor is any information you provide protected by attorney-client privilege until otherwise advised. Michael Bond, Esq., is licensed to practice in the states of New York and New Jersey, and this website is directed only to individuals or entities who may need legal information or representation in those two states.