Legal Ethics and Social Media

Legal Ethics and Social
Media
Instagram and Facebook in Eminent
Domain?
Regina Danner, Esq.
Richards, Watson & Gershon
Anthony DellaPelle, Esq., CRE
McKirdy, Riskin, Olson & DellaPelle, P.C.

What Are The Rules?
State
● Statutes:
E.g., California Government Code Section 6068, et seq.
● Rules of Professional Conduct
Federal
● ABA Model Rules of Professional Conduct
● ABA Model Code of Professional Conduct
● ABA 1908 Canons of Professional Ethics

Other Sources
● State Ethics Opinions
● State, local and regional bar association
opinions
● Out of state Ethics Opinions
● Other sources – ABA Formal & Informal
Ethics Opinions

Ethics Defined
● Usages and customs among members of
the legal profession, involving their
moral and professional duties toward
one another, toward clients, and
toward the courts.
● That branch of moral science which
treats of the duties which a member of
the legal profession owes to the public,
to the court, to his professional
brethren, and to his client.

Eminent Domain Standard
“It is the role of the eminent domain trial
lawyer, in the first instance, to breathe
life, meaning, and measure into the spirit
and value of the constitutional guarantee
of just compensation by his or her
advocacy . . .”
In Re Larson (1992) 616 A.2d 529, 597

The Way We Were
● Martindale's Directory first published in 1868 noting:
“The object of the work is to furnish to Lawyers, Bankers,
Wholesale Merchants, Manufacturers, Real Estate Agents, and
all others who may have need of business correspondents away
from home, the address of one reliable law firm, one reliable
bank, and one reliable real estate agent in each city and town in
the United States.”
● Martindale-Hubbell Law Directory first published in 1931 as a
two-volume set listing lawyers in America along with
biographical information.
● Last printed edition published in 2006.

LAWYERS.COM
● Martindale now boasted over 1 Million Lawyer
Reviews
● “Combining client reviews with the 150-year history of
Martindale-Hubbell® lawyer ratings that evaluate
lawyer ability and ethical behavior.”

A BRAVE NEW WORLD
● Biographical Information/Ratings
● LinkedIn ● Lawyers.com
● Avvo ● Findlaw.com
● Yelp ● Martindale.com
● Social Media/Research
● Facebook ● Snapchat
● Instagram ● Reddit
● Twitter ● Tumblr

To Blog or Not to Blog:
Still A Tricky Question
● General Information vs. Advertising?
● Free Speech vs. Regulated Advertising?
● Public Information vs. Discovery Abuse?
● Postings vs. Professional Responsibility?
● Communications vs. Confidential
Information?
Is there a Heightened Standard for Eminent
Domain Practitioners?

POSSIBLE BENEFITS OF
SOCIAL MEDIA:
 Networking
 Relationship-Building
 Credentialing
 Exhibit Expertise & Knowledge

RAW NUMBERS
 500 million members
 70% outside of USA
 Users in 200 countries, in 24 languages
 1.5M LinkedIn Groups
 LinkedIn adds 2 new users every second
 Profiles with photos get 21 more times
views

RAW NUMBERS
 Twitter has ~ 325 million accounts
 100 million active users per day
 79% of them outside the U.S.
 37% of users are between ages of 18 and
29
 500 million Tweets are sent every day
 Over 600 million search queries every day

RAW NUMBERS
 More than 2 billion members
 1.4 billion use it per day (1.1 billion of
which are mobile device daily users)
 Highest weekday use is 1-3 pm
 42% of marketers report that Facebook is
critical or important to their business
 4.75 billion pieces of content shared daily

RAW NUMBERS
 More than 1 billion members
 More than 50% of users are mobile
devices
 More than 30 million visitors per day
 You Tube on mobile alone reaches more
users ages 18-49 than any cable TV
network
 300 hours of video are uploaded every
MINUTE

Tony’s Social Media:
 FIRM WEBSITE: www.mckirdyriskin.com
 BLOG: njcondemnationlaw.com
 BLOG: realestatetaxappealsnj.com
 TWITTER: @eminentdomainNJ
 FACEBOOK: Anthony F. DellaPelle
 FACEBOOK: McKirdyRiskin
 LINKEDIN: www.linkedin.com/in/dellapelle
 LINKEDIN: www.linkedin.com/company/mckirdy-&-riskin-pa/
 GOOGLE +: ???
YOUTUBE: ???

TIPS FOR AVOIDING ETHICAL
PROBLEMS WHILE USING SOCIAL
MEDIA
 Consider whether posts and profiles constitute legal advice, legal
advertising, or a prohibited solicitation (RPC 7.3)
 Don’t make false of misleading statements (RPC 4.1, 4.3, 4.4, 7.1, 7.4)
– stay away from words like “expert” or “specialist”
 Don’t disclose privileged information or work product (ABA Formal
Opinion 10-457 – must obtain client consent – including inadvertently
revealing location and other info when traveling on confidential client
business
 Should judges be your “friends”? (ABA Formal Opinion 462)
 Don’t communicate with represented parties (RPC 4.2, 8.4(a)
 Be careful about inadvertently creating attorney-client relationships
(ABA Formal Opinion 10-457)
 Watch out for testimonials, reviews and ratings
 Can an attorney use social media in litigation?
 Is an attorney responsible for employee activities?

Scenario 1
ADVERTISING: When Does A Blog Cross the Line?
Stan is an eminent domain lawyer with his own firm. Stan spends a lot
of time writing his blog, “Condemnation is Cool”, about topics of
potential interest to other eminent domain lawyers and persons whose
property may be impacted by eminent domain. Stan writes his blog to
demonstrate his knowledge about eminent domain issues, enhance his
reputation, and increase his business. Each blog entry includes a
hyperlink to his firm web page and a statement that if the reader has
“any questions about eminent domain, you can contact me” at his
office number. His blog does not describe his practice or qualifications
and contains no overt statements of Stan’s availability for professional
employment. Is Stan’s blog a communication subject to regulation?

Scenario 1
A. Stan’s blog is merely informational and not subject to
regulation.
B. Stan’s blog constitutes a communication subject to
regulation.
C. Stan’s blog is absolutely not allowed as it does not
reflect both sides of the law and is misleading.
D. Stan’s blog constitutes an exercise of his First
Amendment right to free speech and cannot be
regulated.

Scenario 1
MRPC 7.1 provides that, “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.”
All blogs maintained by an attorney must comply with this rule. The question then
becomes whether the post concerns the availability for professional employment of
the member and his firm.
MRPC 7.2 states that, “(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.”
The Comment on Rule 7.2 explains, “This Rule permits public dissemination of
information concerning a lawyer’s name or firm name, address, email address,
website, and telephone number; the kinds of services the lawyer will undertake; the
basis on which the lawyer’s fees are determined, including prices for specific
services and payment and credit arrangements; a lawyer’s foreign language ability;
names of references and, with their consent, names of clients regularly represented;
and other information that might invite the attention of those seeking legal
assistance.”

Scenario 1
 MRPC 7.3 states:
(a) A lawyer shall not by in-person, live telephone or real-time electronic
contact solicit professional employment when a significant motive for the
lawyer’s doing so is the lawyer’s pecuniary gain, unless the person
contacted (1) is a lawyer; or (2) has a family, close personal, or prior
professional relationship with the lawyer.
 (b) A lawyer shall not solicit professional employment by written, recorded
or electronic communication or by in-person, telephone or real-time
electronic contact even when not otherwise prohibited by paragraph (a), if:
(1) the target of the solicition has made known to the lawyer a desire not to
be solicited by the lawyer; or (2) the solicitation involves coercion, duress or
harassment.
 (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 a person specified in paragraphs (a)(1) or (a)(2).

Scenario 1
A blog post that contains an offer to the reader to engage the
attorney or which is a step towards securing potential
employment, such as offering a free consultation, would be a
communication within the meaning of Rule 7.1 and subject to the
rules requirements and conditions. A post which provides or
offers only information or informational materials would not.
However, lawyers who provide general legal information online
should be careful to state that the information is “general in
nature and caution that it should not be understood as a substitute
for personal legal advice.” (Formal Opinion 10-457).
In our example, if Stan did not include the last phrase, “any
questions about eminent domain, you can contact me” in his blog
entries, than his blog would not constitute a communication
subject to the rule. This statement constitutes words of invitation
evidencing Stan’s availability for professional employment.

Scenario 1
A blog that is a part of an attorneys or law firm’s professional website will be
subject to the rule regulating attorney advertising to the same extent as the
website of which it is a part. Even without words of invitation or offer, a law
firm’s professional website that includes a description of the attorney’s law
firm and its history and practice; the education, professional experience and
activities of the firm’s attorneys and other features relating to the practice of
law indicates the firm’s availability for professional employment and is a
communication.
“Warnings or cautionary statements on a lawyer’s website can be designed to
and may effectively limit, condition, or disclaims a lawyer’s obligation to a
website reader. Such warnings or statements may be written so as to avoid a
misunderstanding by the website visitor that (1) a client-lawyer relationship
has been created; (20) the visitor’s information will be kept confidential; (3)
legal advice has been given; or (4) the lawyer will be prevented from
representing an adverse party.” Formal Opinion 10-457

Scenario 2
Websites: Formation of Attorney Client Relationship and Duty of Confidentiality
Your firm’s eminent domain website provides an electronic means for visitors to
make inquiries and submit legal questions. The site also requires that before a
question can be submitted the individual must check a box confirming that they
understand and agree that: (1) they may receive a response from the Law Firm;
(2) they will not be charged for the initial response; (3) they are not forming an
attorney-client relationship by submitting the questions; and (4) retaining the law
firm can only be by subsequent written agreement.
You receive an inquiry from the owner of a vacant parcel of land that is about to
be condemned for a roadway project. Several years ago, the owner successfully
rezoned the property from agricultural to multi-unit housing. Owner has not been
able to secure entitlements due to an ongoing dispute with a neighbor (who is also
looking to similarly develop his property) over the existence of an access easement
benefitting the neighboring property supposedly granted several decades earlier.
Owner informs attorney that he has a document purporting to be a grant of
easement, but that it is not recorded and does not think that the neighbor will be
able to locate it. Owner writes that he would like your firm to represent him and
asks whether the existence of the easement would have any impact on the value of
the property.
You review the information, but later discover that your firm already has been
retained by the neighboring landowner in connection with some entitlement work.
The next day you send the owner an e-mail stating that “We regret, we are unable
to assist you due to a conflict with one of our present clients.”

Scenario 2
A. Continue to represent the neighboring landowner
believing your website disclaimers are sufficient
protection against a claim that an attorney-client
relationship has been formed.
B. Continue to represent the neighboring landowner
because you believe the existence of the easement will
eventually be located though a separate information
source.
C. Determine you can no longer represent the neighboring
landowner because you have been disqualified.

Scenario 2
MRPC 1.18 Prospective Client:
 (a) A lawyer shall not use or reveal information acquired in
communications with a prospective client, except where RPC 1.9 would
permit re a former client
 (b) A lawyer shall not represent a client with interests materially adverse
to a prospective client if the info obtained could be significantly harmful
to the prospective client
 (c) If a lawyer is disqualified from representation under (b), no lawyer in
the firm may knowingly undertake or continue representation unless (1)
both client and prospective client consent and (2) the disqualified lawyer
is “timely screened” from participation and receives no part of the fee
 (d)person who communicates with the lawyer is a “prospective client”
and, if no attorney client relationship is formed, is a “former prospective
client”
MRPC 7.3 Personal Contact with Prospective Clients
 Unsolicited or solicited?
 Does it involve third-parties?

Scenario 2
Even absent an attorney-client relationship, an attorney may take on a
duty of confidentiality to a prospective client who “directly consults a
lawyer for the purpose of retaining the lawyer, securing the legal service or
advice from him in his professional capacity.” (Cal. State Bar Formal
Opinion Nos. 2003-161 and 2005-158)
Duty of confidentiality, does not preclude the inquiring firm from
continuing to represent ongoing corporate client where former employee
contacted firm to seek representation against corporate client. Assuming
that all information received from the prospective client is kept
confidential and completely shielded from any firm personnel engaged in
the representation of the corporate client. (N.J. State Formal Ethics
Opinion No. 695, 175 N.J.L.J. 1393 (2004))
An attorney that provides website visitors a means of communicating with
him or her may effectively disclaim owing a duty of confidentiality if the
disclaimer is in sufficiently plain terms to defeat a reasonable belief that
the lawyer is consulting confidentially with the website visitor.

Scenario 3
Posting Results on Social Media:
You have just received a ruling following a lengthy legal
issues trial that you prevailed on an entitlement issue
and will be able to present your client’s goodwill claim in
excess of $10,000,000 dollars. In your exuberance, you
decide to share the news and consider the following
carefully drafted alternatives:

Scenario 3
A. You grab your phone and tweet: “Just prevailed
with the Judge, I am the million dollar baby today,
join me for drinks at the Barka-lounge.”
B. You update your Facebook page to say: “Another
victory today, the client is thrilled - - Who wants to be
next?”
C. You update your blog “check out my recently
published article on Goodwill Entitlement - - just
prevailed using the same arguments.”

Scenario 3
MRPC 7.1, 7.2, 7.3 as stated above in Scenario 1 apply in this
instance.
In addition, MRPC 4.1(a) and 8.4(c) apply as well.
MRPC 4.1(a) provides, “In the course of representing a client a
lawyer shall not knowingly: …, (a) make a false statement of
material fact or law to a third person.”
MRPC 8.4(c) states, “It is professional misconduct for a lawyer to: …,
(c) engage in conduct involving dishonesty, fraud, deceit or
misrepresentation.”

Scenario 3
Material posted by an attorney on a social media
website will be subject to professional responsibility
rules and standards governing attorney advertising.
MRPC 7.2.
The restrictions imposed by the rules and standards
governing advertising are not relaxed merely because
such compliance might be more difficult or awkward
in a social media setting.
The MRPC apply to “written, recorded or electronic
communication” made “in-person, by telephone or
real-time electronic contact”. Thus, it would appear
this would apply to postings on Facebook or Twitter.
(Formal Opinion 10-457).

Scenario 3
The question for determining whether a posting seeks to solicit professional employment
under MRPC 7.3 is whether “a significant motive for the lawyer’s doing so is the
lawyer’s pecuniary gain …,”.
First post: Standing alone it is not a solicitation for professional employment under
MRPC 7.3 because it is not a message or offer concerning the availability for professional
employment. Attorney status postings that simply announce recent victories without an
accompanying offer about the availability for professional employment generally will not
qualify as a solicitation for professional employment.
Second post: The statement, “Another victory” standing along is not a solication for
professional employment under MRPC 7.3 for the same reason. However the last part,
“Who wants to be next?” is such a communication as it infers availability for
employment. Since this constitutes a solicitation for employment, the statement, “Client
is thrilled” requires that the attorney first obtain informed consent from their client
pursuant to MRPC 1.6 in order to disclose this information. The disclosure on social
media is not being made to carry out the representation of a client, but to promote the
lawyer. (Formal Opinion 10-457).
Third post: The posting is informational, but the motive for the lawyer’s posting is the
lawyer’s pecuniary gain.

Scenario 4
Confidential Information: Responding to Negative Online Reviews
You recently concluded representation of an owner of a large commercial
building, a portion of which was being condemned for a grade separation
project. The client owns dozens of commercial properties and has been
involved in several eminent domain actions throughout the years, each time
represented by a different attorney. Against your written recommendation,
client insisted on using an appraiser he had worked with in the past who
undertook an extremely aggressive valuation approach. The case went to
trial and resulted in a jury verdict well below the landowner’s appraised
value.
Following the verdict, client posted a negative review on AVVO stating that
you had “mangled his case” and failed to deliver on your promises of “a
huge verdict.” You discover that client has posted similar negative reviews
concerning previous attorneys following the conclusion of other cases with
unfavorable verdicts involving the same appraiser.

Scenario 4
A. You respond to the review stating that “you can’t help
someone who won’t listen to you.” You provide further
detail that the verdict was the result of the client’s
insistence on using an appraiser whose approach was
questionable, that you advised against it, and that in light
of a difficult client you provided exemplary legal services.
B. You respond to the review instead stating that your
“disgruntled client” can never be made happy and
provide links to other case results and reviews client has
posted.
C. You respond simply stating that “I strive to achieve the
best results possible for each client, but am limited to the
facts I have to work with.”
D. You do not respond at all

Scenario 4
California Rules of Professional Conduct
● Rule 3-100 Confidential Information of a Client: (A) A member
shall not reveal information protected from disclosure by Business
and Professions Code section 6068 (e)(1) without the informed
consent of the client.
Business and Professions Code
● Section 6068 (e): It is the duty of every member to maintain
inviolate the confidence, and at every peril to himself or herself to
preserve the secrets, of his or her client.
California Evidence Code
● Section 958: Breach of Duty Arising Out of Lawyer-Client
Relationship: There is no privilege as to a communication
relevant to an issue of breach, by the lawyer or by the client, of a
duty arising out of the lawyer-client relationship.

Scenario 4
An attorney is not ethically barred from responding generally to an online
review by a former client where the former client’s matter has concluded.
The duty of confidentiality survives the conclusion of the attorney client
relationship and prevents the attorney from disclosing confidential
information about the prior representation absent the former client’s
consent.
MRPC 1.9 (c): an attorney may not use information to the disadvantage
of a former client except as the Rules would permit or require or where
the information has become “generally known”.
Duty of confidentiality for former client applies to information learned by
the lawyer “by virtue of the representation.” This applies even to public
information if it was learned due to the representation. If the information
was learned outside the representation, it is not a client secret, and the
attorney is not bound to preserve it in confidence. (California State Bar
Formal Opinion No. 2016-195.)

Scenario 5
Social Media and Jurors: Research or Improper Contact with
Jurors?
Clara represents the City in an eminent domain action
involving the acquisition of a multi-family residential property.
Prior to commencing the jury voir dire, Clara is given a list of
the potential jurors. She notices that one of the first twelve
jurors has the same last name as the property owner. Clara
does a quick search on Facebook of the first panel of jurors.
Clara then asks her paralegal to dig a little deeper into the
juror with the same last name as the property owner. The
paralegal searches Twitter and Linked In, and then sends a
friend request on Facebook to the potential juror.

Scenario 5
A. Clara will be deemed to have acted improperly
because her paralegal sent a friend request.
B. Clara property exercised her duty to investigate
potential jurors for bias.
C. Clara should not have asked her paralegal to look
at potential jurors Twitter and Linked In pages.
D. Clara cannot investigate jurors by looking at their
social media accounts.

Scenario 5
This scenario deals with the duty of competence and the prohibition on
communication with jurors.
MRPC 1.1 states, “A lawyer shall provide competent representation to a
client. Competent representation requires the legal knowledge, skill,
thoroughness and preparation reasonably necessary for the
representation.”
Recent revisions to the ABA rule on competence requires lawyers to both
understand the basic features of technology and to be informed regarding
the risks and benefits associated with the use of relevant technology.
MRPC 1.1, comment 8.
The duty of competence may require lawyers to conduct an online
investigation of jurors, including looking at social media. To do that,
lawyers must understand how to utilize social media without violating
prohibitions on contacting jurors.
MRPC 3.5 precludes lawyers from communicating, directly or indirectly,
with anyone the lawyer knows to be a member of the jury venire or with
any juror during trial. Lawyers are also prohibited from directly or
indirectly conducting an out-of-court investigation of a juror or venire
member in a manner likely to influence the persons state of mind in
connection with jury service.

Scenario 5
Do you, as a competent lawyer, you have a duty to conduct online research regarding
potential jurors? There are mixed opinions on this subject.
One court held that the trial judge should have permitted a lawyer to use his
computer to conduct research on the venire panel. Carino v. Muenzen (NJ Superior
Ct. App. Div. Aug. 30, 2010). However, in a different case where a juror concealed
information about her litigation history during questioning in the dire phase of the
trial, the court indicated that a party must use reasonable efforts to investigate
juror’s litigation backgrounds during jury selection, or prior to the jury’s being
empaneled, and report relevant information to the court. Johnson v. McCullough,
306. S.W.2d 551, 558-559 (Mo. 2010).
What is a lawyer to do? A passive review of a juror’s website or electronic social
media (“ESM”), that is available without making an access or friend request, and of
which the juror is unaware, does not violate MRPC 3.5. This is analogous to driving
down the street where the juror lives to see the general area. The act of observing
which is open to the public would not constitute a communicative act.
However, an access or friend request to the juror is a problem. It is an active review
of the juror’s ESM by the lawyer and is a communication to a juror asking the juror
for information that the juror has not made public. This is analogous to driving to
the juror’s house and asking for permission to take a look inside.

Scenario 5
MRPC 8.4(a) states that a lawyer may not do through the acts of another what the
lawyer is prohibited from doing directly. See also In re Myers, 584 S.E.2d 357 (S.C.
2003). A friend request is at least an indirect, and therefore prohibited
communication. Similarly, tweets to a juror, chats or messaging would be prohibited.
A more complex situation is when viewing a person’s ESM leaves a record of the visit.
A juror can receive notice that particular persons have visited their Linked In page,
or receive a communication from the social media service that, for an extra fee, the
juror can see everyone who has visited their site for a certain period of time.
ABA Formal Opinion 14-466 concluded that a lawyer who uses a shared ESM
platform to passively view juror ESM, does not communicate with the juror. The
lawyer is not communicating with the juror, the ESM service is doing the
communicating based on the technical feature of the ESM.
However, in this ever evolving environment, the lawyer has the duty of competence
and must keep up with the rules.

Scenario 6
Groupon?
You firm decides to shake up its marketing
approach with a deal of the day offering “pre-
condemnation planning services” for
landowners that may be impacted by an
upcoming announced realignment project. You
consider posting the following “deals.”

Scenario 6
A. “Up to 2 hours of precondemnation planning for $400 dollars.
The deals terms and conditions specify that additional planning
or services will be at regular hourly rates of $400 per hour.
B. Offer a $50 a coupon that entitled the purchaser to “Up to 5
hours of precondemnation planning at the discounted rate of
$200 per hour.” The deals terms and conditions again specify that
additional planning or services will be at regular hourly rates of
$400 per hour.”
C. Offer a $50 a coupon that entitled the purchaser to “Up to 5
hours of precondemnation at the discounted rate of $200 per
hour.” In the deals terms and conditions you specify that: (1) the
purchase does not make the buyer either a prospective client or a
current client entitled to the duties owed by a lawyer; and (2) a
preliminary consultation must take place to determine the
existence of any conflicts of interest with the refund in the event a
conflict exists.

Scenario 6
MRPC 7.1(a)(4) Communications Concerning a Lawyer’s Service:
a communication regarding a lawyer’s services is “false or
misleading” if it relates to legal fees other than:
 a statement of a fee for an initial consultation
 a statement of a fixed or contingent fee charged for a specific
legal service
 a statement of a range of fees for specifically described legal
services
 statement of specified hourly rates which makes clear the
total charge will vary according to the hours devoted
 availability of credit arrangements or any fees charged by a
qualified legal assistance organization in which the lawyer
participates

Scenario 6
American Bar Association Formal Opinion 465: Lawyer’s
Use of Deal-of-the-Day Marketing Programs.
● Structuring the Deal to Avoid Ethical Issues: “Coupon
Deal” versus a “Prepaid Deal.”
● The Cost of Advertising Does Not Constitute Sharing of a
Legal Fee.
● Advertising Must Not Be False or Misleading
● Buyer Is Neither a Prospective Nor Current Client
● Competent Representation and Diligence
● Properly Managing Advance Fees

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