Friends and Tweets and Profiles, Oh My

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Legal ethics and Social Media. …

Legal ethics and Social Media.

Presented at the Lawyer-Pilots Bar Association Winter Meeting, 2003
Villas of Grand Cyprus, Orlando, Florida

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  • Legal services not mentioned the in survey
  • Relatively consistent among age groups with younger groups having a higher usage. 37% for people 18-24, 25% for people 35-64, 17% for those over 65 and over.
  • Birbower is not really on point – the holding specifically deals with a firm trying to collect fees for work performed in California by fax, etc; doesn’t deal with the social media presence issue
  • The paragraph (b) exception
  • First point – harkens to the past on email communications
  • General requirements for advertising and firm websites are beyond scope.
  • Addendum indicates continues to be good law under the Colorado version of the Model Code.
  • Chat room discussion
  • The harder question is whether the statement Facebook uses to alert the represented party to the attorney’s friend request is a communication “about the subject of the representation.” We believe the context in which that statement is made and the attorney’s motive in making it matter.  Not so. The very reason an attorney must make a friend request here is because obtaining the information on the Facebook page, to which a user may restrict access, is unavailable without first obtaining permission from the person posting the information on his social media page. 
  • Question by a newly nominated judge. Excellent collection of opinions of other jurisdictions.
  • Question by a newly nominated judge. Excellent collection of opinions of other jurisdictions.
  • Question by a newly nominated judge. Excellent collection of opinions of other jurisdictions.

Transcript

  • 1. Legal Ethics and Social Media Friends and Tweets and Profiles, Oh My! © 2013 Mark J. Kolber Chapel Hill, N.C. Lawyer-Pilots Bar Association Winter Meeting, 2013 Villas of Grand Cyprus, Orlando, Florida
  • 2. Trends  U.S. social media audience increased from 163.6M unique users to 171.8M  Time spent on social media increased from 88.4 121.1 Billion minutes per person.  32% of people 18-24 use social media in the bathroom.
  • 3. Trends  Social media use for purchasing decisions on the increase.
  • 4. Trends
  • 5. Trends  “Social Care” – using social media to voice questions, issues and complaints.  Consumer-driven marketing and customer service.  30% prefer social media to the telephone.  Facebook remains the leader.  29% post on the company’s page.  28% post on their own page. Neilson Company, State of the Media: The Social Media Report, 2012 (http://goo.gl/JNDqb)
  • 6. Trends  2008 Leader Networks/LexisNexis Survey of corporate counsel.  50% belonged to a social network.  29% believe it helps to more quickly find and evaluate the right legal partners.
  • 7. The Networks  F  Passed 1 billion users in 2012.  Email and telephone replacement for many.  Initially used as a personal networking tool, increasing use for business.  Professionalism a challenge for attorneys:  posts about interesting cases mixed with a cousin’s bachelor party photos.
  • 8. The Networks  L  170 million accounts.  So-called “Facebook for professionals.”  Express business focus.  “Status” updates can be useful information.  Personal and business profiles  Exponential business networking.  Business interest groups with questions and answers.
  • 9. The Networks  L Twitter  Passed 500 million users in 2012.  Primarily personal communications.  Limited to 140 characters per “tweet.”  Your tweets simultaneously go to your “followers,” who agreed to receive your tweets.  Can potentially set up online communities interested in your content.
  • 10. The Networks  Blogging  Preset templates.  Faster and simpler than websites: write and click.  Entry of current developments and other information in a timely manner.  Potentially more work than other social media tools because you must regularly post updates.
  • 11. The Issues  Unauthorized Practice of Law.  Confidentiality and Loyalty.  Advertising.  Recommendations and Endorsements.  Inadvertent Creation of Attorney-Client Relationships.  Investigation and Communication with Parties and Witnesses.  Judges – Friends and Foes.
  • 12. The Issues  Developing Law.  Ambiguous Rules.  Variation among jurisdictions.  Multiple “Model Rules” drafts.  Issues may not be limited to “professional” sites but to “personal” sites as well.
  • 13. Unauthorized Practice of Law  MRPC 5.5 – Unauthorized Practice of Law * (a) A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so. (b) A lawyer who is not admitted to practice in this jurisdiction shall not: (1) except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law (emphasis added); or (2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction *The ABA Model Rules of Professional Conduct are available at http://goo.gl/JOhhF
  • 14. Unauthorized Practice of Law  “other systematic or continuous presence”  Physical presence not required. MRPC 5.5, Comment 4.  One can engage in unauthorized practice “by telephone, fax, computer, or other modern technological means”  Birbrower, Montalbano, Condon & Frank v. Superior Court, 949 P.2d 1, 5 (Cal., 1998)  Consider use of disclaimers similar to letterhead limitations in multi-jurisdictional firm letterhead.  “Licensed in…”  “Practice limited to [jurisdiction]…”
  • 15. Confidentiality and Loyalty  MRPC 1.6 – Confidentiality of Information (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).  Para (b) exceptions  Prevent/mitigate substantial harm, crime or fraud.  Defend claims against the attorney.  Clear conflicts.  Secure ethics advice.  Compliance with rules or court orders.
  • 16. Confidentiality and Loyalty  MPRC 1.8 – Conflict Of Interest: Current Clients: Specific Rules (b) A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these Rules.  May seem obvious but consider:  I’m excited about my first trial!
  • 17. Confidentiality and Loyalty  Do not use social media messaging for attorney-client communications.  Do not use social media to discuss a case.  Maintain knowledge of security advances in communication forms you use.  Avoid case discussions on social media sites.  Client or “selected representations” list with permission only.
  • 18.  MRPC 7.2 – Advertising (a) Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through written, recorded or electronic communication, including public media (emphasis added).  Is your Facebook or LinkedIn page “advertising?” Advertising
  • 19. Advertising  MRPC 7.3 – Solicitation of Clients Every written, recorded or electronic communication from a lawyer soliciting professional employment from anyone known to be in need of legal services in a particular matter shall include the words "Advertising Material" on the outside envelope, if any, and at the beginning and ending of any recorded or electronic communication, unless the recipient of the communication is a person specified in paragraphs (a)(1) or (a)(2).  Probably not a solicitation issue unless used to direct comments to specific people.
  • 20.  MRPC 7.1 – Communication Concerning a Lawyer's Services A lawyer shall not make a false or misleading 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.  “Whatever means are used to make known a lawyer's services, statements about them must be truthful.” MRPC 7.1, Comment 1.  Even truthful reports of achievements “may be misleading if presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained….” MRPC 7.1, Comment 3 . Advertising
  • 21. Advertising  MRPC Rule 7.4 – Communication of Fields of Practice and Specialization (a) A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law. (d) A lawyer shall not state or imply that a lawyer is certified as a specialist in a particular field of law…  Particular areas of practice (Patent; Admiralty).  Certified as a specialist by an approved organization, and identifies the organization.
  • 22. Advertising  Status updates about recent cases won; major deals succeeded, etc.  Breach of confidentiality and loyalty?  Misleading communication creating an unjustified expectation?  Improper indication of certification?
  • 23. Recommendations and Endorsements  LinkedIn and other sites allow people to “recommend” or “endorse” the work of a another participant.
  • 24.  MRPC 8.4 – Misconduct It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another. Recommendations and Endorsements
  • 25. Recommendations and Endorsements  MRPC 7.1 – Communication Concerning a Lawyer's Services A lawyer shall not make a false or misleading 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.  Developing area – changes in the rules and state variations present a serious problem.
  • 26. Recommendations and Endorsements  Prior DR 2-101 described certain statements as always being prohibited in advertising including “a testimonial about or endorsement of a lawyer.”  Original MRPC 7.1 dropped the language regarding testimonials but left in other per se prohibitions.  Current MRPC Rule 7.1 contains no “per se” prohibitions and the Comments do not discuss testimonials.  “The categorical prohibitions … have been criticized as being overly broad and have therefore been relocated from text to the commentary as examples.... The Commission believes this approach strikes the proper balance between lawyer free-speech interests and the need for consumer protection. Reporter’s Explanation of Changes, MRPC 7.1, ABA Ethics 2000 Commission (http://goo.gl/zLWXz)”
  • 27. Recommendations and Endorsements  Virginia “This committee adopts the mixed approach, used in Pennsylvania, while prohibiting testimonials regarding results and/or comparisons, it does allow “soft endorsements.” (citations omitted) Examples of “soft endorsements” include statements such as the lawyer always returned phone calls and the attorney always appeared concerned.” VA State Bar Advertising Opinion A-0113 (2/29/2000) http://goo.gl/kwDJH
  • 28. Recommendations and Endorsements  South Carolina Ethics Advisory Opinion 09- 10 (2009).  State RPC 7.1 contains the old DR prohibition against testimonials: “A lawyer shall not make false, misleading, deceptive, or unfair communications about the lawyer or the lawyer's services. A communication violates this rule if it: “(d) contains a testimonial”
  • 29. Recommendations and Endorsements  South Carolina  RPC 8.4(a) “prohibits lawyers from violating the Rules of Professional Conduct through the acts of another.”  Testimonial: “a statement by a client or former client about an experience with the lawyer.”  Endorsement: “a more general recommendation or statement of approval.”  7.1 prohibits testimonials and “ordinarily also prohibit client endorsements. “
  • 30. Recommendations and Endorsements  South Carolina  Endorsements (not testimonials) may be “presented in a way that is not misleading nor likely to create unjustified expectations.”  Recommends inclusion of disclaimer or qualifying language.  A lawyer adopting information on a website “becomes responsible for conforming all information in the lawyer’s listing to the Rules of Professional Conduct.”  “This opinion does not take into consideration any constitutional law issues regarding lawyer advertising.” http://goo.gl/3Dbq6
  • 31. Recommendations and Endorsements  Colorado Formal Ethics Opinion 83 (1989; Addendum 1993).  Code expressly prohibits use of advertising, solicitation or publicity containing a “testimonial about or endorsement of a lawyer.” DR 2-101(C)(3).  Testimonials and endorsements  tend to mislead the recipient into believing that similar results can be achieved for them.  are likely to contain predictions of future success based on past performance .  may involve unverifiable claims about the quality of the lawyer’s legal services. http://goo.gl/Kvcpn
  • 32. Recommendations and Endorsements  Utah State Bar Ethics Advisory Opinion No. 09-01 (2009).  “The cardinal rule concerning all public communication about a lawyer and her services is that the communication not be false or misleading.”  Testimonials may be false or misleading if there is a “substantial likelihood” of reaching a “conclusion for which there is no factual foundation or will form an unjustified expectation.”  Inclusion of appropriate disclaimer or qualifying language.  “The U.S. Supreme Court has made it clear that public communication concerning a lawyer’s services (including any form of advertising) is commercial speech, enjoys First Amendment protection, and can be regulated only to further substantial state interests, and then only in the least restrictive manner possible. “ http://goo.gl/m2YRC
  • 33. Inadvertent Creation of Attorney- Client Relationship  MRPC Preamble [A] lawyer should further the public's understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.  Chat rooms, LinkedIn Groups, online forums.
  • 34.  “[T]here is every reason to believe, consistent with the traditions of the profession, that these ethical duties to contribute to making legal information available to the public continue to hold strong here.”  But, “the ethical impetus that motivates lawyers to help the public become aware of legal problems cannot insulate lawyers from the consequences arising from formation of an attorney-client relationship as the result of providing legal advice.” D.C. Bar Ethical Opinion 316 (2002) (http://goo.gl/CGDfA) Inadvertent Creation of Attorney- Client Relationship
  • 35. Inadvertent Creation of Attorney- Client Relationship  Formation is a matter of state substantive law. In general:  Retainer or formal agreement not required.  Does the “client” reasonably believe he or she is receiving legal advice.  Is the “client” reasonably relying on even casually rendered advice?  Consider the unauthorized practice issue.
  • 36. Inadvertent Creation of Attorney- Client Relationship  Distinction between legal advice and legal information.  Emphasize for general information only. “A lawyer who writes or speaks for the purpose of educating members of the public to recognize their legal problems should carefully refrain from giving or appearing to give a general solution applicable to all apparently similar individual problems …; otherwise, the public may be misled and misadvised. Talks and writing by lawyers for non-lawyers should caution them not to attempt to solve individual problems upon the basis of the information...”  New York City Ethics Opinion 1998-2 (1998) http://goo.gl/0DXl7
  • 37. Inadvertent Creation of Attorney- Client Relationship  Do not elicit or respond to questions about specific situations.  Discuss general principles and trends, but caution of variations in application by different states and in different circumstances.  Emphasize and re-emphasize the unique quality of legal advice and that what you are is not legal advice.  Recommend that an attorney be sought.  Consider disclaimers, but can be undercut by the lawyer’s actions.
  • 38. Investigations  Uses  Employment background checks.  Information about opposing counsel, judges, witnesses, experts and jurors.  Subpoenas to social networking sites?  Wal-Mart obtained subpoena against a burn injury plaintiff’s wife accessing 2-½ years worth of data fro her MySpace and Facebook accounts. (Washington Post, May 29, 2010) http://goo.gl/q3i6
  • 39.  NYS Bar Assn Ethics Opinion 843 (2010) “A lawyer representing a client in pending litigation may access the public pages of another party's social networking website (such as Facebook or MySpace) for the purpose of obtaining possible impeachment material for use in the litigation (emphasis added).” http://goo.gl/3MCGX Investigations
  • 40. Investigations  Philadelphia Bar Assn Professional Guidance Committee Opinion 2009-02 (2009).  Attorney asks non-lawyer assistant to "friend" a witness, without disclosing the reason for the request or the affiliation with the attorney.  Violates 8.4(c) – deceptive communication.  Violates 4.1 – false statement of material fact to the witness. http://goo.gl/AHfip
  • 41. Investigations  San Diego County Bar Assn Legal Ethics Opinion 2011- 2 (2011).  Employee plaintiff’s attorney sends “friend” request to the Facebook page of two high-ranking but dissatisfied defendant company’s employees to find disparaging remarks. The only information provided is the attorney’s name.  Violates Model Rule 4.2 – prohibition of communication with represented party about the subject of the representation.  Not the same as accessing the person’s public page. Treats the NYS Bar Association opinion as reaching a similar result. http://goo.gl/EckLI
  • 42. Investigations  OK to access public social media pages.  Not OK to “friend” under false pretenses.  Not OK to “friend” parties represented by counsel.  Not OK to get someone else to do it for you.
  • 43. Judicial Criticism  Ft. Lauderdale attorney reprimanded and fined $1200 for calling a judge an “Evil, Unfair Witch” in a blog.  http://goo.gl/hYbRh (NY Times, September 12, 2009)
  • 44. “Friending” Judges  NYS Judicial Ethics Opinion 08-176 (2009)  Judge may join and make use of social media.  Nothing “inherently inappropriate about a judge joining and making use of a social network. A judge generally may socialize in person with attorneys who appear in the judge’s court…” (emphasis added).  Should exercise an “appropriate degree of discretion.”  Keep up with features and new developments that “may impact his/her duties under the Rules.”  Consider whether connections, “alone or in combination with other facts, rise to the level of a ‘close social relationship’ requiring disclosure and/or recusal.” http://goo.gl/hW4va
  • 45. “Friending” Judges  Massachusetts SJC Committee on Judicial Ethics Opinion 2011-6 (December 28, 2011)  The Code does not prohibit judges from joining social networking sites.  Must take care to conform activities with the Code.  But, “A judge's ‘friending’ attorneys on social networking sites creates the impression that those attorneys are in a special position to influence the judge. Therefore, the Code does not permit you to ‘friend’ any attorney who may appear before you.” http://goo.gl/CBPS2
  • 46. “Friending” Judges  South Carolina Advisory Committee On Standards of Judicial Conduct Opinion No. 17-2009 (2009).  “A judge may be a member of Facebook and be friends with law enforcement officers and employees of the Magistrate as long as they do not discuss anything related to the judge’s position as magistrate.” http://goo.gl/7ffJC
  • 47. “Friending” Judges  Supreme Court of Ohio Bd of Commissioners On Grievances and Discipline Opinion 2010-7 (2010).  “A judge may be a “friend” on a social networking site with a lawyer who appears as counsel in a case before the judge. As with any other action a judge takes, a judge’s participation on a social networking site must be done carefully in order to comply with the ethical rules in the Ohio Code of Judicial Conduct.”  Raises the same cautions as the NY opinion about being especially circumspect. http://goo.gl/GRZro
  • 48. “Friending” Judges  Florida Judicial Ethics Advisory Committee Advisory Opinion 2009-20 (2009).  A judge may “post comments and other material on the judge's page on a social networking site, if the publication of such material does not otherwise violate the Code of Judicial Conduct.”  But a judge may not “add lawyers who may appear before the judge as ‘friends’ on a social networking site, and permit such lawyers to add the judge as their friend.’” http://goo.gl/8Q3QE
  • 49. “Friending” Judges  Cited by Fourth District Court of Appeal in Domville v. State, No. 4D12-556 (Fla. App., 2012).  Defendant sought disqualification of judge who is a Facebook friend of the prosecutor.  Court of Appeal reversed order denying disqualification.  “Domville has alleged facts that would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial...”  Granted certification to the Florida Supreme Court as “a question of great public importance” “Where the presiding judge in a criminal case has accepted the prosecutor assigned to the case as a Facebook "friend," would a reasonably prudent person fear that he could not get a fair and impartial trial, so that the defendant's motion for disqualification should be granted?”
  • 50. Judges do not have the unfettered social freedom of teenagers. Central to the public's confidence in the courts is the belief that fair decisions are rendered by an impartial tribunal. Maintenance of the appearance of impartiality requires the avoidance of entanglements and relationships that compromise that appearance. Domville v. State, No. 4D12-556 (Fla. App., 2013), Gross J., concurring specially in certification of question. “Friending” Judges
  • 51. “Friending” Judges  Public Reprimand. North Carolina Judicial Standards Commission Inquiry No. 08-234 (April 1, 2009).  Judge presiding over a custody dispute.  Judge “friend” of one of the attorneys and not the other.  Discussions about the case by both the judge and his friend on social media.  Independent investigations by the judge into one of the parties. http://goo.gl/4xErj