Social Media Ethics for Attorneys

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Social Media Ethics for Attorneys

  1. 1. Columbus Bar Association: ETHICS IN SOCIAL MEDIA MARKETING March 23, 2010 Matthew D. Austin Barnes & Thornburg LLP 21 East State Street,Suite 1850 Columbus, OH 43215 (614) 628-1409 Matt.Austin@btlaw.com© 2010 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is the property of Barnes & Thornburg LLP whichmay not be reproduced, disseminated or disclosed without the express written consent of the author or presenter. The information on this pageis intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
  2. 2. • Ethics Rules and Opinions were Around Long Before Social Media© 2010 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is the property of Barnes & Thornburg LLP whichmay not be reproduced, disseminated or disclosed without the express written consent of the author or presenter. The information on this pageis intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
  3. 3. Social Media Risk/Reward • Matt Crumpton already spoke of all the rewards • Risks – Advertising – Misleading Communication – Client Testimonials – Solicitation – Confidentiality – Attorney-Client Privilege – Conflict of Interest – Specialties© 2010 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is the property of Barnes & Thornburg LLP whichmay not be reproduced, disseminated or disclosed without the express written consent of the author or presenter. The information on this pageis intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
  4. 4. Advertising • Content on social web sites may constitute advertising legal services on the Internet. • See, Ohio Bd. Commissioner on Grievances and Discipline Op. ## 99-9 and 2002-6© 2010 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is the property of Barnes & Thornburg LLP whichmay not be reproduced, disseminated or disclosed without the express written consent of the author or presenter. The information on this pageis intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
  5. 5. Solicitation • Rule 7.3: Direct Contact with Prospective Clients • Lawyers must ensure that direct communication with potential clients does not amount to improper client solicitation. • Rule 7.3 does not apply to communications sent in response to requests from clients or prospective clients. • General announcements by lawyers, like changes in firms or addresses, do not constitute solicitation from a client known to be in need of legal services.© 2010 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is the property of Barnes & Thornburg LLP whichmay not be reproduced, disseminated or disclosed without the express written consent of the author or presenter. The information on this pageis intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
  6. 6. Is Business Tweeting Solicitation? • A woman (potential client) was loading groceries into her car. Someone drove by and hit her car. • She tweeted: Is it smart to post photographs of car accidents online? Can insurance companies use this against you? • Direct Message from Lawyer: “If you are interested in suing the other driver, I’d be glad to help out.”© 2010 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is the property of Barnes & Thornburg LLP whichmay not be reproduced, disseminated or disclosed without the express written consent of the author or presenter. The information on this pageis intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
  7. 7. Is Business Tweeting Solicitation? • Lawyer likely used Twitter Alerts – Setup email alerts based on specific keywords that are relevant to your practice. – Alerts by Area and Zip Code • Lawyer was alerted if/when those key terms are tweeted within a certain number of miles from the zip code where the lawyer practices law. • Likely solicitation if no prior relationship© 2010 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is the property of Barnes & Thornburg LLP whichmay not be reproduced, disseminated or disclosed without the express written consent of the author or presenter. The information on this pageis intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
  8. 8. Answering Questions Online • AVVO and LinkedIn most common • Solicitation if you say, “call me for more” • Solicitation if you ask for email / phone number for “more detailed response” • Use same common sense as soliciting stranger’s legal work© 2010 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is the property of Barnes & Thornburg LLP whichmay not be reproduced, disseminated or disclosed without the express written consent of the author or presenter. The information on this pageis intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
  9. 9. Confidentiality • Rule 1.6: Confidentiality of Information • A lawyer shall not reveal information relating to the representation of a client, including information protected by the attorney-client privilege under applicable law, unless the client gives informed consent, the disclosure is impliedly unauthorized. . . . • This limits a lawyer from disclosing the identity of clients without proper authorization. • Lawyers must be careful not to post client information on public networking websites.© 2010 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is the property of Barnes & Thornburg LLP whichmay not be reproduced, disseminated or disclosed without the express written consent of the author or presenter. The information on this pageis intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
  10. 10. Comments on Blogs and Answers • Attorneys notoriously love to tell war stories • Can’t give enough details for someone remotely familiar with your client (or adversary) to know what it is • EX: Fast food hamburger restaurant headquartered in central Ohio (not Wendy’s)© 2010 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is the property of Barnes & Thornburg LLP whichmay not be reproduced, disseminated or disclosed without the express written consent of the author or presenter. The information on this pageis intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
  11. 11. Attorney – Client Relationship • The Model Rules are silent on the issue of the formation of an attorney-client relationship • Lawyers should supply only general information to avoid inadvertently creating an attorney-client relationship by giving advice or answering legal questions online. • But the Restatement Third of the Law Governing Lawyers, Section 14 states: – A relationship of client and lawyer arises when: (1) a person manifests to a lawyer the person’s intent that the lawyer provide legal services for the person; and. . . (b) the lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services.© 2010 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is the property of Barnes & Thornburg LLP whichmay not be reproduced, disseminated or disclosed without the express written consent of the author or presenter. The information on this pageis intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
  12. 12. Attorney – Client Relationship • Answering LinkedIn or AVVO questions or a direct inquiry by another Facebook or Twitter member. • Inadvertent attorney-client relationships still have all of the conflicts issues that attorneys must consider.© 2010 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is the property of Barnes & Thornburg LLP whichmay not be reproduced, disseminated or disclosed without the express written consent of the author or presenter. The information on this pageis intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
  13. 13. Conflict of Interest • Rule 1.7 Conflict of Interest • A lawyer’s acceptance / continuation of a client or matter creates a conflict if: – Directly adverse – Substantial risk of material limitation – Waived by meeting competent diligent representation and informed consent, confirmed in writing (unless nonconsentable).© 2010 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is the property of Barnes & Thornburg LLP whichmay not be reproduced, disseminated or disclosed without the express written consent of the author or presenter. The information on this pageis intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
  14. 14. Whole Foods • Though not a lawyer – a lawsuit did arise • CEO assumed secret identity • Caused Wild Oats’ stock to plummet • Whole Foods bought Wild Oats for a song • SEC came down hard on CEO • Obviously, CEO had conflict of interest© 2010 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is the property of Barnes & Thornburg LLP whichmay not be reproduced, disseminated or disclosed without the express written consent of the author or presenter. The information on this pageis intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
  15. 15. Misleading Communications • Rule 7.1: Communications Concerning a Lawyer’s Services • A lawyer shall not make or use a false, misleading, or nonverifiable communication about the lawyer or the lawyer’s services. • A communication is false or misleading if it contains a material misrepresentation of fact or law or omits a fact necessary to make the statement considered as a whole not materially misleading.© 2010 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is the property of Barnes & Thornburg LLP whichmay not be reproduced, disseminated or disclosed without the express written consent of the author or presenter. The information on this pageis intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
  16. 16. Client Testimonials / Case Results • Similar to Misleading Communications • Lawyers should be careful not to post client testimonials or case results that are not verifiable. • While the prohibition against client testimonials have been superseded, Model Rule 7.1 (just discussed) must be followed • The Model Rule, which came into effect in 2007, retains the prohibition on unverifiable claims. • Therefore, “whatever means are used to make known a lawyer’s services, statements about them must be truthful.”© 2010 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is the property of Barnes & Thornburg LLP whichmay not be reproduced, disseminated or disclosed without the express written consent of the author or presenter. The information on this pageis intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
  17. 17. Client Testimonials / Case Results • The Ohio Supreme Court Opinion 2000-6 further states that: • “A law firm’s public communication of client quotations describing the general nature of the legal services provided, responsiveness of the law firm, and other non-substantive aspects of the firm’s representation is improper under the professional rules of conduct. This view is based on the current rules in the Ohio Code of Professional Responsibility and is consistent with ABA Model Rule 7.1, the Comment thereto, and the advice offered by the Board in Opinion 89-24.” • Therefore, it may be a good idea to ensure that client testimonials are verifiable to an objective degree or avoid client testimonials altogether.© 2010 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is the property of Barnes & Thornburg LLP whichmay not be reproduced, disseminated or disclosed without the express written consent of the author or presenter. The information on this pageis intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
  18. 18. Specialties “Thou shalt not fill out LinkedIn specialization box without appropriate caveats.”© 2010 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is the property of Barnes & Thornburg LLP whichmay not be reproduced, disseminated or disclosed without the express written consent of the author or presenter. The information on this pageis intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
  19. 19. Specialties • Supreme Court of Ohio only recognizes a few areas of specialization • Avoid listing specialties unless you are actually specialized under Rule 7.4 • LinkedIn includes a “specialties” section by default field in profiles • Double-check your profile to ensure that you have accurately listed (or haven’t listed) your specialization© 2010 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is the property of Barnes & Thornburg LLP whichmay not be reproduced, disseminated or disclosed without the express written consent of the author or presenter. The information on this pageis intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
  20. 20. Specialty • But wait. . . • Filling in a standardized box labeled “specialties” that everyone completes as part of their profile does not amount to holding myself out as a specialist given the context. • “I’m not inclined to muck up a simple profile with a bunch of legalese because someone up at the bar stretches the meaning of “specialties” beyond any reasonable interpretation.” • What’s deceptive in the offline world may be perfectly clear or acceptable in the online context. For example, a paper advertisement by a law firm that says “We are personal injury specialists” may confuse consumers by leading them to believe that the firm brings unique qualifications to the table. By contrast, listing “personal injury” as a specialty in a standardized box is more reasonably viewed as a way of indicating a practice area, nothing more. Susan Cartier-Liebel© 2010 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is the property of Barnes & Thornburg LLP whichmay not be reproduced, disseminated or disclosed without the express written consent of the author or presenter. The information on this pageis intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
  21. 21. • Ohio Supreme Court Opinion 88-4 (from 1988), though superseded by the Ohio Rule of Professional Conduct 7-4 stated`: “A lawyer may ethically be listed in a legal directory or law list provided the listing does not contain a false, fraudulent, misleading, or deceptive statement or claim.” • Probably refers to Martindale Hubbell listings© 2010 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is the property of Barnes & Thornburg LLP whichmay not be reproduced, disseminated or disclosed without the express written consent of the author or presenter. The information on this pageis intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
  22. 22. Law Firm Social Media Policy 1. Your firm’s malpractice insurance may require a policy. May even have one that you can use. If not, a qualified individual or attorney who is also insured against omissions should write that policy. 2. Don’t give legal advice. 3. When you discuss the law firm or law firm- related matters, write in the first person. You must make it clear that you are speaking for yourself and not on behalf of the law firm.© 2010 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is the property of Barnes & Thornburg LLP whichmay not be reproduced, disseminated or disclosed without the express written consent of the author or presenter. The information on this pageis intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
  23. 23. Law Firm Social Media Policy 4. Content that is published to any website that is related to the work you do, or related to subjects associated with firm clients, partners, or staff, should use a disclaimer such as this: “The postings on this site are my own and don’t necessarily represent my law firm’s positions, strategies, or opinions.” Where and when possible, also include the following: “The contents of this website are offered for information purposes only and should not be construed as legal advice. A visit to this website does not create an attorney-client relationship. You should consult with an attorney for individual advice regarding your individual situation.”© 2010 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is the property of Barnes & Thornburg LLP whichmay not be reproduced, disseminated or disclosed without the express written consent of the author or presenter. The information on this pageis intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
  24. 24. Law Firm Social Media Policy 5. Respect copyright, fair use, and financial disclosure laws. 6. Don’t criticize the judiciary in any way. 7. Do not use the firm logo without permission from the marketing department.© 2010 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is the property of Barnes & Thornburg LLP whichmay not be reproduced, disseminated or disclosed without the express written consent of the author or presenter. The information on this pageis intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
  25. 25. Thank You Questions?© 2010 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is the property of Barnes & Thornburg LLP whichmay not be reproduced, disseminated or disclosed without the express written consent of the author or presenter. The information on this pageis intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.

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