Social Lawyers
Avoiding the Ethical Pitfalls
of Using Social Media
Nicole Hyland
Social Lawyers
Why do Lawyers Get
Into Trouble on
Social Media?
Introduction
The Four Social Media
Traps For Lawyers

Click on the twitter icon to
tweet slide contents
The Four Social Media Traps

1.
The Myth of the Privacy Bubble
The Four Social Media Traps

2.
Forgetting the Rules
The Four Social Media Traps

3.
Misusing Social Media as a
Discovery or Investigatory Tool
The Four Social Media Traps

4.
Failing to Counsel Clients on
Their Social Media Use
Myth of the Privacy Bubble
“… proper attire for trial.”

- Facebook post by Public Defender Anya Citron Stern (Fl. 2012)
Result:
Motion for mistrial granted
Lawyer fired
Internet Circa 1993
Internet Circa 2012
The Myth of Privacy
“There can be no
reasonable expectation of
privacy in a tweet sent
around the world.”
- People v. Harr...
The Myth of the Privacy Bubble
(Summarized)
Knowing the Rules
Knowing the Rules









Ethics Rules
Platform‟s Terms of
Service
Employer‟s Social Media
Policy
Netiquette
Substan...
Examples From the Blogosphere
Impugning Judges
“Evil, unfair witch”
“Ugly, condescending
attitude”
“Seemingly mentally ill”
- Florida State Bar v. Conwa...
Rule 8.1(a)
“A lawyer shall not knowingly
make a false statement of fact
concerning the qualifications,
conduct or integri...
Result
Public Reprimand on
Consent
- Florida State Bar v. Conway (2008)
Confidentiality
“This stupid kid is taking the rap
for his drug-dealing dirtbag of
an older brother because "he‟s
no snitc...
Confidentiality
“He was standing there in
court stoned, right in front of
the judge, probation officer,
prosecutor and def...
Result
Suspended from practice
for 60 days
Fired after 19 years
in PD office
- In the Matter of Peshek (Illinois 2010)
Facebook, LinkedIn, Twitter, etc.
Advertising






Mischaracterized legal skills and
prior successes
Falsely stated he handled matters
in federal court
...
Advertising
 Listed

50 practice areas in
which he had little or no
experience

 Used

the word “specialist”
even though...
Advertising
“Respondent began using
these websites without
adequate review of the
relevant provisions of the
South Carolin...
Result:
Public Reprimand
-In the Matter of Dickey (South Carolina
2012)
NYSBA Op. 972 (2013)
Lawyer may identify practice
areas
 Lawyer may not list services under
“Specialties” heading unless
...
California Op. 2012-186








“Case finally over. Unanimous verdict!
Celebrating tonight.”
“Another great victory in...
Ex Parte Communications
Lawyer: “I hope I'm in my last
day of trial.”
Judge: “You are in your last
day of trial.”
- Matter...
Result
Judge Publicly Reprimanded

- Matter of Terry (North Carolina 2009)
However …
“Merely designating
someone as a friend on
Facebook „does not show
the degree or intensity of
the judge‟s relati...
Discovery and Investigation
Social Media as Evidence
“The great virtue of a laptop is that
it can be used on one‟s lap, while
sitting on a sofa, or pe...
Social Media as Discovery
“[I]t is reasonable to infer from the limited
postings on plaintiff's public Facebook and
MySpac...
Delay in Seeking Social Media
Defendant‟s motion to
compel discovery concerning
plaintiff‟s social media
accounts denied d...
Four Guidelines for a Social
Media Discovery Plan

1
Include Social Media at an Early
Stage in Your Discovery Plan
Four Guidelines for a Social
Media Discovery Plan

2
Update Your Definition of
Electronically Stored Information
(ESI) to ...
Four Guidelines for a Social
Media Discovery Plan

3
Include Social Media in Your
Document Preservation Letters
(Both to A...
Four Guidelines for a Social
Media Discovery Plan

4
Request Social Media Content in
Your Document Requests and Third
Part...
“Passive” Viewing of Social Media
 Lawyers

may view public
areas of social media
accounts

 NYSBA

Opinion 843

 SDCBA...
“Friending” Represented Parties






“No Contact” Rule (Rule 4.2)

Passive viewing of public pages
vs. “friending” (NY...
“Friending” Unrepresented Persons







Communicating with unrepresented
party (Rule 4.3)
Use of Deception (Rules 4.1...
Researching Jurors




Attorneys may research jurors on
social media as long as no
communication occurs (NYCBA Op.
2012-...
Counseling Clients Regarding
Social Media
Preserving Social Media

“I Love Hot Mamas.”

-

Lester v. Allied Concrete (Virginia
2013)
Result:
Client and lawyer ordered
to pay sanction of
$722,000
Consequences for Lawyer
 Paid

$542,000 in
sanctions

 Resigned

from law firm

 Suspended

for five years
NYCLA Op. 745 (2013)






You may counsel clients about what
they post on social media
You may counsel your clients ab...
Should we just leave the
internet to the cats?
Do’s and Don’ts of Social Media Use
Do’s of Social Media Use

Do Know the Rules Relevant
to Social Media Use
(including ethics rules, TOS,
employment policies...
Do’s of Social Media Use

Do Stay Current on Ethics
Opinions and Court
Decisions Regarding Social
Media Use
Do’s of Social Media Use

Do be Professional and
Classy on Social Media
Do’s of Social Media Use

Do Safeguard Client
Confidentiality on Social
Media
Do’s of Social Media Use

Do Vet LinkedIn
Endorsements to Make
Sure They Are Appropriate
Don’ts of Social Media Use

Do Not Communicate With
Jurors on Social Media
(or elsewhere)
Do’s of Social Media Use

Do Use Appropriate
Disclaimers on Social
Media Sites
Do’s of Social Media Use

Do Counsel Your Clients
Appropriately About Their
Social Media Use
Do’s of Social Media Use

Do Use Social Media as an
Investigatory and
Discovery Tool
(But Follow the Rules)
Don’ts of Social Media Use

Do Not Try to Hide
Behind Anonymity on
Social Media
Don’ts of Social Media Use

Do Not Misrepresent or
Exaggerate Your
Qualifications
Don’ts of Social Media Use

Do Not Communicate With
Represented Parties in
Violation of the Rules
Don’ts of Social Media Use

Do Not Engage in Ex Parte
Communications With Judges
on Social Media
(or elsewhere)
Don’ts of Social Media Use

Do Not Insult or
Disparage Judges (or
Anyone Else) on Social
Media
Don’ts of Social Media Use

Do Not Communicate With
Jurors on Social Media
(or elsewhere)
Don’ts of Social Media Use

Do Not Give Legal Advice
on Social Media
Don’ts of Social Media Use

Do Not Solicit Potential
Clients on Social Media
Don’ts of Social Media Use

Do Not Overlook the
Significance of Social
Media Evidence
Don’ts of Social Media Use

Do Not Destroy Social
Media Evidence
(or counsel your client to do so)
Contact
Nicole Hyland
212-826-5552
nhyland@fkks.com
Twitter:
FB Page:
Blog:
JDSupra:
LinkedIn:

@NiHyland
www.facebook.com...
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Social Lawyers: Avoiding the Ethical Pitfalls of Using Social Media

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This deck discusses the four fundamental errors that lawyers make, which get them into trouble on social media.

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Social Lawyers: Avoiding the Ethical Pitfalls of Using Social Media

  1. 1. Social Lawyers Avoiding the Ethical Pitfalls of Using Social Media Nicole Hyland
  2. 2. Social Lawyers Why do Lawyers Get Into Trouble on Social Media?
  3. 3. Introduction The Four Social Media Traps For Lawyers Click on the twitter icon to tweet slide contents
  4. 4. The Four Social Media Traps 1. The Myth of the Privacy Bubble
  5. 5. The Four Social Media Traps 2. Forgetting the Rules
  6. 6. The Four Social Media Traps 3. Misusing Social Media as a Discovery or Investigatory Tool
  7. 7. The Four Social Media Traps 4. Failing to Counsel Clients on Their Social Media Use
  8. 8. Myth of the Privacy Bubble
  9. 9. “… proper attire for trial.” - Facebook post by Public Defender Anya Citron Stern (Fl. 2012)
  10. 10. Result: Motion for mistrial granted Lawyer fired
  11. 11. Internet Circa 1993
  12. 12. Internet Circa 2012
  13. 13. The Myth of Privacy “There can be no reasonable expectation of privacy in a tweet sent around the world.” - People v. Harris (N.Y. Crim. Court 2012) (denying motion to quash subpoena to Twitter for information relating to Defendant‟s account)
  14. 14. The Myth of the Privacy Bubble (Summarized)
  15. 15. Knowing the Rules
  16. 16. Knowing the Rules      Ethics Rules Platform‟s Terms of Service Employer‟s Social Media Policy Netiquette Substantive Law
  17. 17. Examples From the Blogosphere
  18. 18. Impugning Judges “Evil, unfair witch” “Ugly, condescending attitude” “Seemingly mentally ill” - Florida State Bar v. Conway (2008)
  19. 19. Rule 8.1(a) “A lawyer shall not knowingly make a false statement of fact concerning the qualifications, conduct or integrity of a judge or other adjudicatory officer or of a candidate for election or appointment to judicial office.”
  20. 20. Result Public Reprimand on Consent - Florida State Bar v. Conway (2008)
  21. 21. Confidentiality “This stupid kid is taking the rap for his drug-dealing dirtbag of an older brother because "he‟s no snitch.” . . . My client is in college. Just goes to show you that higher education does not imply that you have any sense.” - Complaint, In the Matter of Peshek (Illinois)
  22. 22. Confidentiality “He was standing there in court stoned, right in front of the judge, probation officer, prosecutor and defense attorney, swearing he was clean.” - Complaint, In the Matter of Peshek (Illinois)
  23. 23. Result Suspended from practice for 60 days Fired after 19 years in PD office - In the Matter of Peshek (Illinois 2010)
  24. 24. Facebook, LinkedIn, Twitter, etc.
  25. 25. Advertising    Mischaracterized legal skills and prior successes Falsely stated he handled matters in federal court Falsely stated he graduated from law school in 2005 - In the Matter of Dannitte Mays Dickey (South Carolina 2012)
  26. 26. Advertising  Listed 50 practice areas in which he had little or no experience  Used the word “specialist” even though not certified as a specialist - In the Matter of Dickey (South Carolina 2012)
  27. 27. Advertising “Respondent began using these websites without adequate review of the relevant provisions of the South Carolina Rules of Professional Conduct.” - In the Matter of Dickey (South Carolina 2012)
  28. 28. Result: Public Reprimand -In the Matter of Dickey (South Carolina 2012)
  29. 29. NYSBA Op. 972 (2013) Lawyer may identify practice areas  Lawyer may not list services under “Specialties” heading unless certified as a specialist (R. 7.4)  No opinion on whether lawyer can list services under “Skills and Expertise” heading  Problem? 
  30. 30. California Op. 2012-186     “Case finally over. Unanimous verdict! Celebrating tonight.” “Another great victory in court today? Client is delighted! Who wants to be next?” “Won a million dollar verdict. Tell your friends and check out my website.” “Just published an article on wage and hour breaks. Let me know if you would like a copy.”
  31. 31. Ex Parte Communications Lawyer: “I hope I'm in my last day of trial.” Judge: “You are in your last day of trial.” - Matter of Terry (North Carolina 2009)
  32. 32. Result Judge Publicly Reprimanded - Matter of Terry (North Carolina 2009)
  33. 33. However … “Merely designating someone as a friend on Facebook „does not show the degree or intensity of the judge‟s relationship with a person.‟” - Youker v. Texas (quoting ABA Op. 462 (2013))
  34. 34. Discovery and Investigation
  35. 35. Social Media as Evidence “The great virtue of a laptop is that it can be used on one‟s lap, while sitting on a sofa, or perhaps while in bed. Indeed, we note that the Facebook page for ‘Using the laptop in bed’ . . . has nearly one million ‘Likes.‟” - Ferraro v. Hewlett-Packard Co. (7th Cir. 2013)
  36. 36. Social Media as Discovery “[I]t is reasonable to infer from the limited postings on plaintiff's public Facebook and MySpace profile pages that her private pages may contain material and information that are relevant to her claims or that may lead to the disclosure of admissible evidence.” - Romano v. Steelchase, 30 Misc.3d 426 (N.Y. Sup. Ct. 2010)
  37. 37. Delay in Seeking Social Media Defendant‟s motion to compel discovery concerning plaintiff‟s social media accounts denied due to unexplained delay. - Guzman v. Farrell Building Co. (Suffolk County 2012)
  38. 38. Four Guidelines for a Social Media Discovery Plan 1 Include Social Media at an Early Stage in Your Discovery Plan
  39. 39. Four Guidelines for a Social Media Discovery Plan 2 Update Your Definition of Electronically Stored Information (ESI) to Include Social Media
  40. 40. Four Guidelines for a Social Media Discovery Plan 3 Include Social Media in Your Document Preservation Letters (Both to Adversaries and Clients)
  41. 41. Four Guidelines for a Social Media Discovery Plan 4 Request Social Media Content in Your Document Requests and Third Party Subpoenas
  42. 42. “Passive” Viewing of Social Media  Lawyers may view public areas of social media accounts  NYSBA Opinion 843  SDCBA Ethics Op. 2011-2 (2010)
  43. 43. “Friending” Represented Parties    “No Contact” Rule (Rule 4.2) Passive viewing of public pages vs. “friending” (NYSBA Opinion 843) Lawyer can‟t “friend” highranking executives of represented corporation (SDCBA Ethics Op. 2011-2)
  44. 44. “Friending” Unrepresented Persons     Communicating with unrepresented party (Rule 4.3) Use of Deception (Rules 4.1(a) and 8.4) Duty to Supervise (Rule 5.3) “Friending” allowed as long as lawyer uses real name and no deception (NY City Bar Op. 2010-02)
  45. 45. Researching Jurors   Attorneys may research jurors on social media as long as no communication occurs (NYCBA Op. 2012-2) Lawyers may search jurors‟ social media sites provided there is no contact or communication and lawyer does not seek to friend or follow jurors (NYCLA 743)
  46. 46. Counseling Clients Regarding Social Media
  47. 47. Preserving Social Media “I Love Hot Mamas.” - Lester v. Allied Concrete (Virginia 2013)
  48. 48. Result: Client and lawyer ordered to pay sanction of $722,000
  49. 49. Consequences for Lawyer  Paid $542,000 in sanctions  Resigned from law firm  Suspended for five years
  50. 50. NYCLA Op. 745 (2013)    You may counsel clients about what they post on social media You may counsel your clients about the legal implications of their social media activity You may advise your clients to “take down” social media postings (with a big caveat)
  51. 51. Should we just leave the internet to the cats?
  52. 52. Do’s and Don’ts of Social Media Use
  53. 53. Do’s of Social Media Use Do Know the Rules Relevant to Social Media Use (including ethics rules, TOS, employment policies, netiquette, and substantive law)
  54. 54. Do’s of Social Media Use Do Stay Current on Ethics Opinions and Court Decisions Regarding Social Media Use
  55. 55. Do’s of Social Media Use Do be Professional and Classy on Social Media
  56. 56. Do’s of Social Media Use Do Safeguard Client Confidentiality on Social Media
  57. 57. Do’s of Social Media Use Do Vet LinkedIn Endorsements to Make Sure They Are Appropriate
  58. 58. Don’ts of Social Media Use Do Not Communicate With Jurors on Social Media (or elsewhere)
  59. 59. Do’s of Social Media Use Do Use Appropriate Disclaimers on Social Media Sites
  60. 60. Do’s of Social Media Use Do Counsel Your Clients Appropriately About Their Social Media Use
  61. 61. Do’s of Social Media Use Do Use Social Media as an Investigatory and Discovery Tool (But Follow the Rules)
  62. 62. Don’ts of Social Media Use Do Not Try to Hide Behind Anonymity on Social Media
  63. 63. Don’ts of Social Media Use Do Not Misrepresent or Exaggerate Your Qualifications
  64. 64. Don’ts of Social Media Use Do Not Communicate With Represented Parties in Violation of the Rules
  65. 65. Don’ts of Social Media Use Do Not Engage in Ex Parte Communications With Judges on Social Media (or elsewhere)
  66. 66. Don’ts of Social Media Use Do Not Insult or Disparage Judges (or Anyone Else) on Social Media
  67. 67. Don’ts of Social Media Use Do Not Communicate With Jurors on Social Media (or elsewhere)
  68. 68. Don’ts of Social Media Use Do Not Give Legal Advice on Social Media
  69. 69. Don’ts of Social Media Use Do Not Solicit Potential Clients on Social Media
  70. 70. Don’ts of Social Media Use Do Not Overlook the Significance of Social Media Evidence
  71. 71. Don’ts of Social Media Use Do Not Destroy Social Media Evidence (or counsel your client to do so)
  72. 72. Contact Nicole Hyland 212-826-5552 nhyland@fkks.com Twitter: FB Page: Blog: JDSupra: LinkedIn: @NiHyland www.facebook.com/NicoleHyland.Ethics.Lawyer www.legalethicsforum.com (contributor) www.jdsupra.com/profile/nicole_hyland/ www.linkedin.com/in/nicolehyland/

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