Ethical issues in social media
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Ethical issues in social media

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  • “Stay informed & inform”: Raises few issues (except with respect to solicitation). “Expand Referral Network”: For corporate counsel, this means expanding the network of potential employers, employees or business partners.“Increase Online Footprint”: Important for reasons related to expanding your referral network, but also for reputation management.
  • “Stay informed & inform”: Raises few issues (except with respect to solicitation). “Expand Referral Network”: For corporate counsel, this means expanding the network of potential employers, employees or business partners.“Increase Online Footprint”: Important for reasons related to expanding your referral network, but also for reputation management.
  • Because rules are over-broad and hard to apply to new forms of communication. Post-Bates, many rules remain. Look at some state examples:
  • Overreaching rules, aggressive enforcement. Pre-screening for approval.
  • Start with one fundamental issue – the breadth of the rules governing attorney advertising.
  • LOTS of things lawyers write are, in effect, “communication about a lawyer or a lawyer’s services.”
  • We know this “communication” isn’t commercial speech . . .
  • William Baker – Wiley Rein partner
  • But what about blogging?
  • Twitter?
  • Facebook?
  • LinkedIn?
  • Avvo?
  • Content-based restrictions on speech are subject to “strict scrutiny.” Government carries burden of proving that restrictions are necessary to meet a compelling state interest . . . which is why so many of these restrictions are stricken.
  • Commercial speech, is subject to the lesser “intermediate scrutiny” standard. Government still carries the burden.
  • Bolger v Young's Drug Products Corp., (1983)
  • “Substantial Government Interest.” Rarely contested. Bar authorities will point to importance of protecting the public, guarding the integrity of the profession and promoting the pursuit of justice. Supreme Court has found all of these to be substantial state interests (Goldfarb v. Virginia State Bar, (1975); Florida Bar v. Went for It, Inc. (1995) – upholding 30 day ban on targeted direct mail solicitations).
  • “Direct and Material Advancement.” Must target an identifiable harm and mitigate against that harm in a direct and effective manner. “A state cannot satisfy its burden . . . by the rote invocation of the words ‘potentially misleading.’” (Mason v. Florida Bar (11th Cir 2000).“A governmental body seeking to sustain a restriction on commercial speech must demonstrate that the . . . rule at issue . . . targets a concrete, nonspeculative harm.”, Florida Bar v. Went for It 515 U.S. 618, 629 (1995) “the court has declined to uphold regulations that only indirectly advance the state interest involved.” (e.g., restricting ads in the interest of protecting the quality of a lawyer’s work, or barring advertising prices in the interest of protecting the ethical or professional standards of lawyers)
  • “Narrow tailoring” Most important prong; most often used to strike down advertising regulations. If the government can achieve its interest in a manner that doesn’t restrict speech – or that restricts less speech – it must do so.Regulators must “carefully calculate” the burdens imposed by its regulations and that those burdens are justified in the light of the weight of the government’s objectives. SUNY v. Fox (1989)“Our recent decisions involving commercial speech have been grounded inthe faith that the free flow of commercial information is valuable enough to justify imposing on would-be regulators the costs of distinguishing the truthful from the false, the helpful from the misleading, and the harmless from the harmful.” Zauderer, 471 U.S. at 646.
  • Because rules are over-broad and hard to apply to new forms of communication. Post-Bates, many rules remain. Look at some state examples:
  • Watch out for social media updates involving your “availability for professional employment.”
  • Could be considered “promising results”; require disclaimer. Possible divulging client confidences.

Ethical issues in social media Ethical issues in social media Presentation Transcript

  • Avvo, Inc. Confidential - ©2012Ethical Issues in Social Mediaby Josh KingAvvo, Inc.
  • . . . or Why You Should Worry Less andEngage Moreby Josh KingAvvo, Inc.
  • Avvo, Inc. Confidential - ©2012Josh KingGeneral Counsel &Vice President, Business DevelopmentAvvo, Inc.Twitter: @joshuamkingEmail: josh@avvo.comIntroduction
  • SocialWhy Use Social Media?•Stay Informed & Inform•Expand Referral Network•Be Discovered
  • How Not To Use Social Media
  • SocialSocial Media Is Not a Billboard
  • Engagement is the Key
  • Avvo, Inc. Confidential - ©2012Why Do Lawyers WorryAbout Social Media?
  • Avvo, Inc. Confidential - ©2012Washington
  • Avvo, Inc. Confidential - ©2012California
  • Avvo, Inc. Confidential - ©2012New York
  • Avvo, Inc. Confidential - ©2012Florida
  • Avvo, Inc. Confidential - ©2012Other States
  • “A lawyer shall not makea false or misleadingcommunication about thelawyer or the lawyersservices.”
  • “A truthful statement isalso misleading . . . “
  • “. . . if there is asubstantial likelihood thatit will lead a reasonableperson . . .”
  • “. . . to formulate aspecific conclusion aboutthe lawyer or the lawyersservices . . .”
  • “. . . for which there is noreasonable factualfoundation.”
  • Avvo, Inc. Confidential - ©2012“Communication about a lawyeror a lawyer’s services”
  • Avvo, Inc. Confidential - ©2012
  • Avvo, Inc. Confidential - ©2012
  • Avvo, Inc. Confidential - ©2012
  • Avvo, Inc. Confidential - ©2012
  • Avvo, Inc. Confidential - ©2012
  • Avvo, Inc. Confidential - ©2012
  • Avvo, Inc. Confidential - ©2012
  • Avvo, Inc. Confidential - ©2012
  • Avvo, Inc. Confidential - ©2012
  • Avvo, Inc. Confidential - ©2012
  • Avvo, Inc. Confidential - ©2012Avvo, Inc. - Copyright2010
  • What “Communication” Can Be Regulated?
  • Regulation of“Commercial Speech”
  • Central Hudson Gas &Electric Corp. v PublicService Commission(1980)
  • “Commercial speech”defined
  • “That which does nomore than propose acommercialtransaction.”
  • SubstantialGovernmentInterest?
  • Direct Advancementof the GovernmentInterest?
  • Narrowly TailoredRegulation?
  • Avvo, Inc. Confidential - ©2012Steady Expansion of Commercial Speech
  • Avvo, Inc. Confidential - ©2012Specific Areas to PayAttention To
  • Avvo, Inc. Confidential - ©2012Testimonials
  • Avvo, Inc. Confidential - ©2012Client Solicitation
  • Avvo, Inc. Confidential - ©2012Promising Results
  • Using Social Media to Advertise
  • Avvo, Inc. Confidential - ©2012Blogging About Clients
  • Avvo, Inc. Confidential - ©2012Blogging as Advertising
  • Avvo, Inc. Confidential - ©2012Embellishment
  • Avvo, Inc. Confidential - ©2012Professionalism
  • Avvo, Inc. Confidential - ©2012Josh KingGeneral Counsel &Vice President, Business DevelopmentAvvo, Inc.Twitter: @joshuamkingEmail: josh@avvo.comQuestions?Stay up to date ondevelopments in the law ofsocial media – and getnotification of upcomingfree Avvo CLE webinars –with my new monthly emailnewsletter:“Socially Awkward – WhereSocial Media Meets thePractice of Law”Email “subscribe” tojosh@avvo.com