Statements in Social Media would be considered admissible ADMISSIONS
Used daily in mediation
Lawyer Gives Examples of Husbands‘ Divorce Cases Undone by Facebook
One man who claimed to be unemployed was getting alimony from his soon-to-be ex-wife. On his Facebook page, however, he identified himself as a business owner and described his vacations to exotic destinations with his new girlfriend.
Another man in the midst of a divorce claimed he couldn't afford to pay child support. Yet his Facebook profile showed him sitting in a Ferrari, taking a cruise and selling a piece of property he owned.
Story reported by Mark Hansen in ABA Journal
Party in employment mediation claimed Wrongful Termination but on Facebook stated that it was layoff and that she was glad
The advertisement must adequately disclose the factual and legal circumstances that justify the result portrayed in the message, including the basis for liability and the nature of injury or damage sustained, or the advertisement must state that the result portrayed in the advertisement was dependent on the facts of that case, and that the results will differ if based on different facts. B&P 6158.3
Must be retained for year. 6159.1
Social Media Profiles Might be Subject to State Bar Advertising Rules
The Tennessee Board = LinkedIn profiles as advertising.
State Bar of Texas = LinkedIn and Facebook profiles do not need to be filed for advertising review.
Often a lawyer’s LinkedIn profile contains only the exempt information, so it doesn’t trigger the advertising rules. 6158.2
Is It Ethical for a PR Agency or Others to Write an Unattributed Post for a Lawyer’s Blog?
Personal Nature of Blog vs. Corporate Nature is determinative.
Arguably misleading because clients might think that you have written the material and are therefore knowledgeable about a particular topic.
Any advertisement made on behalf of a member, which is not paid for by the member, shall disclose any business relationship, past or present, between the member and the person paying for the advertisement. B&P 6157.3
A LinkedIn profile has a field for “specialties.” Unless you are certified as a specialist by a state bar accredited authority in your jurisdiction, you should leave it blank. ABA Model Rule 7.4(d). Most State rules Prohibit. 1-400(D)
“ My practice focuses exclusively on bankruptcy” rather than “I specialize in bankruptcy.”
According to a public reprimand, a North Carolina judge engaged in unethical Facebook activity relating to a case being tried before him. During a child custody case, District Judge B. Carlton Terry Jr. “friended” defense counsel, and each of them discussed aspects of the case on Facebook, constituting ex parte communications. Plaintiff’s counsel had indicated she was not on Facebook. The judge also conducted ex parte online research about the plaintiff by Googling her and visiting her website.
Philadelphia Bar Association issued an opinion that such pretexting would involve dishonesty, fraud, deceit or misrepresentation on behalf of the lawyer, or the encouragement of such behavior, in violation of the Pennsylvania ethics rules.
C.O.P.R.A.C. Op. 93-131 (lawyer may not indirectly communicate using a client as a ploy to obtain an unfair advantage; no bright line in terms of advice and guidance to a client in anticipation of party-to-party communications).
Depending on the information revealed, an attorney-client relationship could easily be formed over Facebook or in a series of e-mails
Implied attorney-client relationship is that the attorney’s conduct must create a reasonable belief that the attorney will accept representation. See Fox v. Pollack (1st Dist. 1986) 181 Cal.App.3d 954, 226 Cal.Rptr. 532
Could be legal advice
Fiduciary Duty to prospective clients. Beery v. State Bar (1987) 43 Cal.3d 802, 239 Cal.Rptr. 121, 739 P.2d 1289; In re Marriage of Zimmerman (1st Dist. 1993)
Respondent represented a college student in relation to allegations that he possessed a controlled substance.
Respondent published the following entry on her blog:
#127409 (the client’s jail identification number) This stupid kid is taking the rap for his drug-dealing dirtbag of an older brother because "he’s no snitch." I managed to talk the prosecutor into treatment and deferred prosecution, since we both know the older brother from prior dealings involving drugs and guns. My client is in college. Just goes to show you that higher education does not imply that you have any sense.
Respondent knew or should have known that information contained in her blog...was confidential, or that it had been gained in the professional relationship and the revelation of it would be embarrassing or detrimental to her client.
What about calling the judge an A$$H0LE
“ When you become an officer of the court, you lose the full ability to criticize the court,” said Michael Downey , who teaches legal ethics at the Washington University law school.
"a person or entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service.“
In re Subpoena Duces Tecum to AOL, LLC , 550 F.Supp.2d 606 (E.D. Va. 2008), the court quashed a subpoena issued by State Farm Insurance Company to obtain the e-mail records of two investigators directly from America Online. It held that the issuance of the civil discovery subpoena was not an exception to the provisions of the act so as to allow the provider to disclose the communications.