Clients are using social media to tell their stories, market their company and even find jobs. Smart attorneys use social media information to win cases and help organizations grow and prosper. Scott Malouf, social media attorney will discuss how to use social media in your cases and the top legal issues clients face when they get social.

1. Your client posted What!!?
Top Social Media Concerns for Lawyers
and Clients
#Social4Lawyers

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4. 4

5. About
our
presenter
Presenter
• A-orney
licensed
in
New
York
&
Massachuse-s
• Prac;ce
focuses
on
Social
Media
Law
– Helps
good
li;gators
turn
social
media
into
evidence
&
develop
claims
based
on
li;gant
social
media
use
– Assists
organiza;ons
that
want
to
use
social
media
for
business
but
stay
compliant
• Twi-er
is
his
favorite
social
media
plaEorm
• Pens
Social
Media
Law
column
for
New
York
Daily
Record
5!

6. Why Social Media Matters
‣ Advertising & business generation
‣ See Gyi Tsakalakis’ MyCase Webinar
5 Really Great Examples of Lawyers Using Social Media
‣ Key communication, data & organizational tool for
individuals & businesses
‣ Important for attorneys to understand legal implications
‣ Oracle v. Google – voir dire
‣ New ethics opinions or cases -
Another Judge Allows Service via Facebook by Niki Black,
February 23, 2016
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7. Poll Question #1
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What social media platform do you most want to discuss today?
1. Facebook!
2. Twitter!
3. LinkedIn!
4. Personal or company website!
5. Other!

8. Poll Question #2
8
What kinds of clients or stakeholders raise social media concerns for you?
1. Individual clients!
2. Business clients!
3. Employees or family of clients!
4. Other!
5. I don’t know!

9. Social is Not Electronic Paper
‣ Huge volume of information
‣ Average Facebook user creates 90 pieces of content/month
‣ 50% of 18-24 year-olds go on Facebook when they wake up
‣ There are 83 million fake profiles on Facebook
‣ Huge variety of data: posts, likes, connections, video, etc.
‣ Fast publishing & ephemeral data
‣ With a click you can reach the world, and can be instantly researched
‣ Just as easy to delete
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10. 10
Screen capture by S. Malouf, on March 22, 2016 Tool used to locate Posts Geofeedia!

11. Social is Not Electronic Paper
‣ Software tools & automation used
‣ Ex: Buffer, Hootsuite, Sprout Social
‣ Posting to multiple accounts
‣ Encourage informality & “authenticity” that can backfire
‣ Chat platforms in the workplace – Slack, Campfire
‣ Clients should be told posts can be used in court…
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12. Original photo by John McKeon - Flickr: Hulk Hogan, CC BY-SA 2.0,
https://commons.wikimedia.org/w/index.php?curid=18875638. Modifications S. Malouf!
Hulk Hogan v. Gawker
(Bollea v. Gawker)!
!
$60 Million for Emotional
Distress!
!
$55 Million for Economic
Damages! $25.1 Million
for Punitive
Damages!
!

13. Poll Question #3
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What kinds of cases raise social media law concerns for you?
1. Personal Injury!
2. Employment or Commercial Litigation!
3. Family Law!
4. Criminal Law!
5. Other!

14. Litigation First Steps
1. How might social be relevant in each case
a. Personal injury: extent of injury/emotional distress after an accident
b. Employment: Workplace environment/culture, substantive facts, identifying
witnesses
c. Family Law or Bankruptcy: proof of assets or employment
d. Criminal Law or Probation: motive, substantive facts, identifying witnesses
2. Modify your process
a. Tweak forms – “All” can be a dirty word in social discovery requests
b. If possible, bill clients for form modification and other changes by explaining it is
an ounce of prevention
c. Assume a more iterative process in each case when planning
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15. Lit. Steps: Talk to the Client
1. Due diligence searches on client
a. Google search
b. Social search: LinkedIn, Facebook or Twitter
2. Ask your client
a. What platform is most popular with them, if any
b. Fake accounts – On Fake Instagram a Chance to Be Real, NYT, November, 15, 2015
c. “Friends” or connected to witnesses, opposing parties, etc.
d. What types of data do they have: video, images, likes, etc.
3. Privacy settings –
A Good Second Impression: Legal Ethics and Making Public Social Media
Private, NY Daily Record, February 2, 2015
4. Explain how the opposition will use this information
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16. Lit. Steps: Talk to the Court
1. Due diligence on court
a. Is your court or judge familiar with this kind of evidence & issues in discovery
b. Is he or she willing to control cost and efforts via early intervention
c. Check your local rules – NJ Standing Order on cell phone evidence
2. Voir dire and juror social media – judicial concerns
a. Efficiency of voir dire
b. Juror privacy
c. Inducing juror Internet research
d. Parties seeking a second bite at the apple post-verdict
e. Fairness
f. Oracle v. Google, Google's Lawyers Agree Not to Google Jurors, The Recorder,
March 8, 2016
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17. Poll Question #4
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What size businesses or not-for-profits do you serve?
1. 1-10 employees!
2. 11-25 employees!
3. 26-100 employees!
4. 100-1,000 employees!
5. 1,000+ employees!

18. Business
Social
Media
Concerns
• Takeaway
– Free
account
≠
problem
free
– Empower
via
guidance
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19. Business Social Media Concerns
‣ Copyright
‣ Many assume if it is on the web it can be used without restriction
‣ Often little instruction for account managers on legal issues
‣ Publicity Rights
‣ Defamation
‣ False Light or Invasion of Privacy Hulk Hogan v. Gawker
‣ FTC – Focused on social media
‣ Lord & Taylor Settles FTC Charges It Deceived Consumers Through Paid
Article in an Online Fashion Magazine & Paid Instagram Posts by 50 “Fashion
Influencers” FTC press release, March 15, 2016
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20. Employment Law Concerns
‣ Password Protection statutes (27 states have them, federal is
possible)
‣ National Labor Relations Board (NLRB) guidance on policies
‣ Wage & hour laws
‣ Bring Your Own Device Policies (BYOD)
‣ If a lost device has both employer & employee confidential & private
data can you remotely wipe it?
‣ Data breach laws
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21. Business Client First Steps
1. Ask
a. Budget for it
b. What devices
c. When & where
d. What is a huge win
e. What is worst case, realistic
scenario
2. Modify Client Process
a. Cheap stock photos or partnerships
that generate images
b. Plan for stupid
21!
Headline: ESPN suspends Keith Olbermann over Penn State tweets!

22. Get 10% Off Your First 6 Months of MyCase:
Promo Code: 10SOC16
Scott L. Malouf, Esq.
Law Office of Scott L. Malouf
www.scottmalouf.com
scott@scottmalouf.com
585.672.4922
@ScottMalouf
www.linkedin.com/in/socialmediaattorney
MyCase
www.MyCase.com
support@mycase.com
800-571-8062
Contact Us
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23. Thank You
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24. Links to Resources & Opinions
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NYSBA Commercial & Federal Litigation Section’s Social Media Ethics Guidelines
NYSBA Commercial & Federal Litigation Section’s Social Media Jury Instructions
Report
Considerations when researching or monitoring juror social media
ABA Formal Op. 466
NYCBA Formal Op. 2012-2
NYCLA Formal Op. 743
Tweets directed to potential clients in shareholder suits are advertising &
solicitation NYSBA Op. 1009
Advertising rules should apply to blogs that are part of attorney website or that
make clear the author is available to represent clients
California Bar Formal Op. INTERIM No. 12-0006

25. Links to Resources & Opinions
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Investigating non-party NH Bar Assoc. Advisory Op. 2012-13/05
Advising clients re settings, posts & “takedowns” of social media
NYCLA Formal Op. 745
Philadelphia Bar Assoc. Op 2014-05
NC State Bar 2014 Formal Ethics Op. 5
Florida Bar Association Proposed Advisory Op. 14-1
Attorneys may access party “public” social media NYSBA Op. 843
LinkedIn
LinkedIn profiles or endorsements may be “Advertisements” NYCLA 748
Specialties NYSBA Op. 972 (LinkedIn no longer offers a “Specialties” section)