Ethical Issues in Social Media

by Josh King
Avvo, Inc.

Avvo, Inc. ©2014
. . . or Why You Should Worry Less and
Engage More
by Josh King
Avvo, Inc.
Introduction

Josh King
General Counsel &
Vice President, Business Development
Avvo, Inc.
Twitter:

@joshuamking

Email:

...
Why Use Social Media?

• Stay Informed & Inform
• Expand Referral Network
Social

• Be Discovered
How Not To Use Social Media
Social Media Is Not a Billboard

Social
Engagement is the Key
Why Do Lawyers Worry
About Social Media?

Avvo, Inc. © 2014
Washington

Avvo, Inc. © 2014
California

Avvo, Inc. © 2014
New York

Avvo, Inc. © 2014
Florida

Avvo, Inc. © 2014
Other States

Avvo, Inc. © 2014
“A lawyer shall not make
a false or misleading
communication about the
lawyer or the lawyer's
services.”
“A truthful statement is
also misleading . . . “
“. . . if there is a
substantial likelihood that
it will lead a reasonable
person . . .”
“. . . to formulate a
specific conclusion about
the lawyer or the lawyer's
services . . .”
“. . . for which there is no
reasonable factual
foundation.”
“Communication about a lawyer
or a lawyer’s services”

Avvo, Inc. © 2014
Avvo, Inc. © 2014
Avvo, Inc. © 2014
Avvo, Inc. © 2014
Avvo, Inc. © 2014
Avvo, Inc. © 2014
Avvo, Inc. © 2014
Avvo, Inc. © 2014
Avvo, Inc. © 2014
Avvo, Inc. © 2014
Avvo, Inc. © 2014
Avvo, Inc. - Copyright
2010

Avvo, Inc. © 2014
What “Communication” Can Be Regulated?
Regulation of
“Commercial Speech”
Central Hudson Gas &
Electric Corp. v Public
Service Commission
(1980)
“Commercial speech”
defined
“That which does no
more than propose a
commercial
transaction.”
Substantial
Government
Interest?
Direct Advancement
of the Government
Interest?
Narrowly Tailored
Regulation?
Steady Expansion of Commercial Speech

Avvo, Inc. © 2014
Specific Areas to Pay
Attention To

Avvo, Inc. © 2014
Testimonials

Avvo, Inc. © 2014
Client Solicitation

Avvo, Inc. © 2014
Promising Results

Avvo, Inc. © 2014
Using Social Media to Advertise
Blogging About Clients

Avvo, Inc. © 2014
Blogging as Advertising

Avvo, Inc. © 2014
Embellishment

Avvo, Inc. © 2014
Misrepresentation

Avvo, Inc. © 2014
Professionalism

Avvo, Inc. © 2014
Questions?

Josh King
General Counsel &
Vice President, Business Development
Avvo, Inc.
Twitter:

@joshuamking

Email:

jo...
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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

    1. 1. Ethical Issues in Social Media by Josh King Avvo, Inc. Avvo, Inc. ©2014
    2. 2. . . . or Why You Should Worry Less and Engage More by Josh King Avvo, Inc.
    3. 3. Introduction Josh King General Counsel & Vice President, Business Development Avvo, Inc. Twitter: @joshuamking Email: josh@avvo.com Avvo, Inc. © 2014
    4. 4. Why Use Social Media? • Stay Informed & Inform • Expand Referral Network Social • Be Discovered
    5. 5. How Not To Use Social Media
    6. 6. Social Media Is Not a Billboard Social
    7. 7. Engagement is the Key
    8. 8. Why Do Lawyers Worry About Social Media? Avvo, Inc. © 2014
    9. 9. Washington Avvo, Inc. © 2014
    10. 10. California Avvo, Inc. © 2014
    11. 11. New York Avvo, Inc. © 2014
    12. 12. Florida Avvo, Inc. © 2014
    13. 13. Other States Avvo, Inc. © 2014
    14. 14. “A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services.”
    15. 15. “A truthful statement is also misleading . . . “
    16. 16. “. . . if there is a substantial likelihood that it will lead a reasonable person . . .”
    17. 17. “. . . to formulate a specific conclusion about the lawyer or the lawyer's services . . .”
    18. 18. “. . . for which there is no reasonable factual foundation.”
    19. 19. “Communication about a lawyer or a lawyer’s services” Avvo, Inc. © 2014
    20. 20. Avvo, Inc. © 2014
    21. 21. Avvo, Inc. © 2014
    22. 22. Avvo, Inc. © 2014
    23. 23. Avvo, Inc. © 2014
    24. 24. Avvo, Inc. © 2014
    25. 25. Avvo, Inc. © 2014
    26. 26. Avvo, Inc. © 2014
    27. 27. Avvo, Inc. © 2014
    28. 28. Avvo, Inc. © 2014
    29. 29. Avvo, Inc. © 2014
    30. 30. Avvo, Inc. - Copyright 2010 Avvo, Inc. © 2014
    31. 31. What “Communication” Can Be Regulated?
    32. 32. Regulation of “Commercial Speech”
    33. 33. Central Hudson Gas & Electric Corp. v Public Service Commission (1980)
    34. 34. “Commercial speech” defined
    35. 35. “That which does no more than propose a commercial transaction.”
    36. 36. Substantial Government Interest?
    37. 37. Direct Advancement of the Government Interest?
    38. 38. Narrowly Tailored Regulation?
    39. 39. Steady Expansion of Commercial Speech Avvo, Inc. © 2014
    40. 40. Specific Areas to Pay Attention To Avvo, Inc. © 2014
    41. 41. Testimonials Avvo, Inc. © 2014
    42. 42. Client Solicitation Avvo, Inc. © 2014
    43. 43. Promising Results Avvo, Inc. © 2014
    44. 44. Using Social Media to Advertise
    45. 45. Blogging About Clients Avvo, Inc. © 2014
    46. 46. Blogging as Advertising Avvo, Inc. © 2014
    47. 47. Embellishment Avvo, Inc. © 2014
    48. 48. Misrepresentation Avvo, Inc. © 2014
    49. 49. Professionalism Avvo, Inc. © 2014
    50. 50. Questions? Josh King General Counsel & Vice President, Business Development Avvo, Inc. Twitter: @joshuamking Email: josh@avvo.com Stay up to date on developments in the law of social media – and get notification of upcoming free Avvo CLE webinars – with my new monthly email newsletter: “Socially Awkward – Where Social Media Meets the Practice of Law” Email “subscribe” to josh@avvo.com Avvo, Inc. © 2014
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