2015 Social Media and Legal Ethics

Social Media and
Legal Ethics
MARK J KOLBER ATTORNEY AT LAW
mjk@mkolberlaw.com
© 2015 Mark J Kolber

Trends
Pew Research Center Social Media Update 2014
http://goo.gl/8nVX25

Trends
 56% of law firms use
LinkedIn professionally.
 Over 60% for firms with
over 50 attorneys.
 34% of law firms use
Facebook professionally.
 25% not using social
media professionally.
ABA Tech Report 2014
http://goo.gl/drx0RZ

The Networks
 F
 58% of all adults.
 71% of all adult Internet users.
 74% of online college graduates.
 72% of online users earning >$75,000/yr.
 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.

The Networks
 L
 28% of online adults.
 50% of online college grads.
 44% of online users earning > $75,000.
 Express business focus.
 Personal and business profiles.
 Exponential business networking.
 Business interest groups with questions and
answers.

The Networks
 L Twitter
 23% of online adults.
 30% of online college graduates.
 27% of online users earning > $75,000.
 Limited to 140 characters per “tweet.”

The Issues
 Advertising.
 Competent Representation.
 Confidentiality and Loyalty.
 Inadvertent Creation of Attorney-Client
Relationships.
 Investigation and Communication with
Parties and Witnesses.
 Judges – Friends and Foes.
 Recommendations and Endorsements.
 Unauthorized Practice of Law.

The Issues
 Developing Law.
 Variation among jurisdictions.
 “Ethics 20/20” Multiple “Model Rules.”
 Multijurisdictional Practice.
 Not limited to “professional” sites.
 Beginning to see more activity and more
comprehensive activity by state bars.

The Issues
 North Carolina – 2 significant ethics
opinions within 6-months.
 Pennsylvania Bar Association Formal
Opinion 2014-300.
 18 pages discussing 10 social media issues, from
advising clients regarding the content of their sites to
investigating jurors for the content of theirs.
http://goo.gl/5LYefP,
(courtesy of Morgan, Lewis & Bockius LLP)

The Issues
 Social Media Ethics Guidelines Of the
Commercial and Federal Litigation Section Of
the New York State Bar Association (Updated
June 9, 2015)
 36 pages covering social media topics including
attorney competence, client communications,
furnishing legal, use of social media evidence,
juror research, and communications with judicial
officers
http://goo.gl/8dvxVK

 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
Unauthorized Practice of Law

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]…”

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.

 “Social media communications and
communications made on a lawyer's website
or blog must comply with” the prohibitions on
disclosing confidential information.
 “This prohibition applies regardless of
whether the confidential client information is
positive or celebratory, negative or even to
something as innocuous as where a client
was on a certain day.”
NYS Bar Com’l & Lit Sec Guideline 5E (2015)
http://goo.gl/8dvxVK

 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!

 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.
 Client or “selected representations” list
with permission only.

 MRPC 1.1 – Competence
Competent representation requires the
legal knowledge, skill, thoroughness and
preparation reasonably necessary for the
representation.

Social Media Knowledge &
Competent Representation
To maintain the requisite knowledge and skill, a
lawyer should keep abreast of changes in the
law and its practice, including the benefits and
risks associated with the technology relevant to
the lawyer’s practice...
Comment 8 to MRPC 1.1

North Carolina
 “competent representation includes knowledge of
social media and an understanding of how it will
impact the client's case including the client's
credibility.”
 Attorney must advise client of the “legal
ramifications of existing postings, future postings,
and third party comments.”
 Discuss change of privacy settings
 Watch out for potential spoliation issues.
NC 2014 Formal Ethics Opinion 5
(July 25, 2014) http://goo.gl/WqTPGq

Pennsylvania
 “Lawyers must be aware of how these
websites operate and the issues they raise
in order to represent clients whose
matters may be impacted by content
posted…”
 “As the use of social media expands, so
does its place in legal disputes…”
PA Bar Assoc Formal Opinion
(2014) http://goo.gl/5LYefP

NYS Bar Com’l & Lit Sec
 “A lawyer has a duty to understand the benefits and
risks and ethical implications associated with social
media….”
 “…may advise a client as to what content may be
maintained or made private on her social media
account…advise a client as to what content may be
‘taken down’ or removed…as long as there is no
violation of…any [obligation to preserve evidence and]
an appropriate record of [removed] social media
information or data is preserved.”
NYS Bar Com'l & Lit Sec Guidelines 1 and 5A
(2015) http://goo.gl/8dvxVK

 Wrongful death of wife in
accident with truck.
 Facebook photos.
 Attorney advises to remove –
“[w]e don’t want any blow-ups
of this stuff at trial.”
 Husband deletes Facebook page
and 16 photos.
 Information withheld in
discovery.
 Emails regarding removal not
included in privilege log.

 ~$10 Million combined verdict on wrongful
death and personal injury claims ultimately
not overturned – the information came to
light before trial.
 Attorney sanctioned $542,000.
 Client sanctioned $180,000
 Attorney received 5 year suspension.
In the matter of Matthew B. Murray
Virginia State Bar Disciplinary Committee
http://goo.gl/ulOubO

 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

 “A lawyer’s social media profile that is used
only for personal purposes is not subject to
attorney advertising and solicitation rules.
However, a social media profile, posting or
blog a lawyer primarily uses for the purpose
of the retention of the lawyer or his law firm
is subject to such rules.”
 Look to the primary purposes of accounts
used for both.
NYS Bar Com'l & Lit Sec Guideline 2A
Advertising

Advertising
 MRPC 7.3 – Solicitation of Clients
(c) 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 [certain personal or
professional relationships]
 Probably not a solicitation issue unless used to direct
comments to specific people.

 MRPC 7.1 – Communication Concerning a Lawyer's
Services
…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 … statements must be
truthful.” MRPC 7.1, Comment 1.
 Even truthful reports “may be misleading if … lead a
reasonable person to form an unjustified expectation that
the same results could be obtained…” MRCP 7.1,
Comment 3.
Advertising

 NCRPC 7.1 – Communication Concerning a
Lawyer's Services
(a) 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 material misrepresentation or misleading
omission.
 Creates unjustified expectations.
 Contains unsubstantiated comparisons with other
lawyers.
 Dramatizations must be identified as such.
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.
 Language of “concentration,” “interest” or “limitation”
is permitted.
Advertising

Advertising
 LinkedIn 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?

Recommendations and
Endorsements
 Same issues as other
forms of advertising.
 Specialization.
 Untruthful or misleading
information.
 Unjustified expectations.
 Still a developing area
with wide state variations.

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.

Recommendations and
Endorsements
 “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)”

Recommendations and
Endorsements
North Carolina
 Lawyer may post endorsements and recommendations
from other than judges, provided “the content of the
endorsement or recommendation is truthful and not
misleading”
 May endorse a judge’s legal skills or expertise and
write a recommendation, subject to avoiding
appearances of impropriety.
 May not accept endorsements or recommendations
from a judge – “would create the appearance of
judicial partiality.”
NC 2014 Formal Ethics Opinion 8
(1/23/2015) http://goo.gl/sgyRhp

Recommendations and
Endorsements
Virginia
 Prohibit testimonials regarding results
and/or comparisons.
 Allow “soft endorsements.”
 “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 reaffirmed in LEO 1750
(12/18/2008) http://goo.gl/i7uAxl

Recommendations and
Endorsements
South Carolina
 Has old Disciplinary Rule prohibition against
testimonials and “ordinarily also prohibit client
endorsements.”
 Testimonial: “a statement by a client or former client
about an experience with the lawyer.”
 Endorsement: “a more general recommendation or
statement of approval.”
 RPC 8.4(a) prohibition on violating the Rules
through the acts of another.
 A lawyer adopting information on a website “becomes
responsible for conforming all information in the
lawyer's listing to the Rules of Professional Conduct.”

Recommendations and
Endorsements
South Carolina (cont’d)
 Endorsements (not testimonials) may be
“presented in a way that is not misleading
nor likely to create unjustified expectations.”
 Include disclaimer or qualifying language.
 “This opinion does not take into consideration
any constitutional law issues regarding
lawyer advertising.”
South Carolina Ethics Advisory Opinion
09-10 (2009) http://goo.gl/3Dbq6

Recommendations and
Endorsements
NYS Bar Com'l & Lit Sec
 “A lawyer that maintains social media profiles must be
mindful of the ethical restrictions relating to
solicitation…and the recommendations of…others….
 “A lawyer is responsible for all content that the lawyer
posts on her social media website or profile. A lawyer
also has a duty to periodically monitor her social
media profile(s) or blog(s) for comments,
endorsements and recommendations to ensure that
such third-party posts do not violate ethics rules.”
NYS Bar Com'l & Lit Sec Guideline 2C

Recommendations and
Endorsements
Colorado
 Still uses old Disciplinary Rules; not a Model Rules
state - prohibits advertising, solicitation or publicity
containing a “testimonial about or endorsement of a
lawyer.” DR 2-101(C)(3).
 Testimonials and endorsements
 tend to lead to unjustified expectations.
 likely to contain predictions of future success based on
past performance .
 may involve unverifiable claims about the quality of the
lawyer’s legal services.
Colorado Formal Ethics Opinion 83
(1989; Addendum 1993) http://goo.gl/Kvcpn

Linked-In Endorsement Settings

Linked-In Endorsement Settings
 Edit Profile
 Scroll to “Endorsements” and click in it.
 Set it the way you want

Inadvertent Creation of Attorney-
Client Relationship
[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.
MRPC Preamble
 Chat rooms, LinkedIn groups, online
forums?

Client Relationship
 Contract issues likely to predominate over
ethical issues.
 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.

Inadvertent Creation of
Attorney-Client Relationship
North Carolina
 “Although the use of [chat rooms and other social
media that allow real-time electronic
communications] is permissible, the practice is not
without its risks...”
 “The law firm should be wary of creating an
‘inadvertent’ lawyer-client relationship.”
 Confidentiality concerns.
 Potential conflicts of interest.
NC 2011 Formal Ethics Opinion 8, Utilizing
Live Chat Support Service on Law Firm Website
(7/15/2011) http://goo.gl/W34MDJ

District of Columbia
 “[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)
Client Relationship

Inadvertent Creation of
Attorney-Client Relationship
 “A lawyer may provide general answers to legal
questions asked on social media. A lawyer,
however, cannot provide specific legal advice on a
social media network because a lawyer's
responsive communications may be found to have
created an attorney-client relationship and legal
advice also may impermissibly disclose information
protected by the attorney-client privilege”
NYS Bar Com'l & Lit Sec Guideline 3A

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
providing is not legal advice.
 Recommend that an attorney be sought.
 Disclaimers can be undercut by actions.

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 from her MySpace and
Facebook accounts.
(Washington Post, May 29, 2010) http://goo.gl/q3i6

Investigations
Philadelphia Bar Assn
 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.
Philadelphia Bar Assn Professional Guidance
Committee Opinion 2009-02 (2009) http://goo.gl/AHfip

Investigations
San Diego County Bar Assn
 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.
San Diego County Bar Assn Legal Ethics
Opinion 2011-2 (2011) http://goo.gl/EckLI

Investigations
Pennsylvania
 May not contact a represented person
through social networking websites.
 May contact an unrepresented person, but
may not use a pretextual basis for viewing
otherwise private information.
 Attorneys may use information on social
networking websites in a dispute.
Pennsylvania Bar Association Formal
Opinion 2014-300 http://goo.gl/5LYefP
(courtesy of Morgan, Lewis & Bockius LLP)

Investigations
 Generally the same rules for investigating
jurors but with applicable restrictions on juror
contact.
 May research public profile.
 No communication (even if automatic by the
social network).
NYS Bar Com'l & Lit Sec Guideline 36

Investigations
Summary
 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.

Judicial Criticism
 Ft. Lauderdale attorney
reprimanded and fined
$1,200 for calling a judge an
“Evil, Unfair Witch” in a blog.
 http://goo.gl/hYbRh (NY Times,
September 12, 2009)

Judicial Criticism
Louisiana Custody Case

Judicial Criticism
 Contentious custody case in two states with
allegations of child sexual abuse against
husband.
 Social media “blitz” created by wife’s attorney
and client:
 Urging to sign online petition and contact judges.
 Audio recordings of sealed proceedings.
 “Ask yourself, what if these were your daughters?
… Horrified? Call the judges and let them know.”
 Judicial contact information provided.
 Contacts to judges were in fact made.

Judicial Criticism
 Louisiana Disciplinary Board recommends year+1
day suspension.
 Rule 3.5(a) “seek to influence a judge by means
prohibited by law.”
 Rule 8.4
 Violate, attempt to violate, knowingly assist or induce
another to violate the Rules, or do so through the
acts of another. Rule 8.4(a)
 Conduct involving dishonesty, fraud, deceit or
misrepresentation. Rule 8.4(c).
 Conduct prejudicial to the administration of justice.
Rule 8.4(d).

Judicial Criticism
“One troubling fact that distinguishes Ms.
McCool's misconduct from these other cases
[lighter sanctions] is that she used the
internet and social media to facilitate her
misconduct. Consequently, the offending
language remains present and accessible on
the internet today.”
In Re: Joyce Nanine McCool, Louisiana Attorney
Disciplinary Board (2/10/2015) http://goo.gl/op1XBi

“Friending” Judges
North Carolina
 LinkedIn discussed. Applies to other social media.
 Judges may connect with lawyers and vice versa.
 Evaluated in same manner as other personal
interactions, “such as an invitation to dinner.”
 Avoid “conduct prejudicial to the administration of
justice” such as stating or implying ability to
influence; engaging in ex parte communications.
North Carolina 2014 Formal Ethics Opinion 8
(January 23, 2015) http://goo.gl/sgyRhp

New York
 Judge may join and make use of social media.
 Nothing “inherently inappropriate.” May generally
socialize with attorneys who appear in the judge’s
court. (emphasis added).
 Exercise an “appropriate degree of discretion.”
 Keep up with features and new developments that
may impact Judge’s ethical duties.
 Will connections, “alone or in combination” rise to the
level of a relationship’ requiring disclosure or recusal?
NYS Judicial Ethics Opinion 08-176 (2009)
http://goo.gl/hW4va

Massachusetts
 The Code does not prohibit judges from joining
social networking sites.
 Must take care to conform activities with the
Code.
 But friending attorneys “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.”
Massachusetts SJC Committee on Judicial Ethics
Opinion 2011-6 (December 28, 2011) http://goo.gl/CBPS2

Florida
 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.’”
Florida Judicial Ethics Advisory Committee Advisory
Opinion 2009-20 (2009) http://goo.gl/8Q3QE

Domville v. State
 Citing the Florida Advisory Opinion
 Defendant sought disqualification of judge
who is a Facebook friend of the prosecutor.
 Judge refused to self-disqualify.
 Court of Appeal reversed order denying
disqualification and certified question to
Florida Superior Court.
 Florida Supreme Court denied review.
Domville v. State, 103 So.3d 184 (Fla. App. 2012)
http://goo.gl/6NnK62 ;
certification of question, 125 So. 3d 178 (2013);
rev. den. 110 So. 3d 441 (2013)

Domville v. State
 “Domville has alleged facts that would create in a
reasonably prudent person a well-founded fear of
not receiving a fair and impartial trial...”
 “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.”

 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

Please contact me with
any questions or copies
of materials referred to
in this presentation.
mjk@mkolberlaw.com

2015 Social Media and Legal Ethics

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