Legal Ethics of Social Media (PA)
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A Continuing Legal Education (CLE)Presentation on the legal ethics of social media based on the PA Rules of Professional Responsibility. Presented at the Dickinson School of Law in September 2011.
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Legal Ethics of Social Media (PA)
- 1. The Legal Ethics of Social Media Tweeting, Blogging, Linking, Digging and the Rules of Professional Responsibility Presented by: Ed Lanza September 2011
- 2. The Tangled Web We Weave
- 3. Are Luddites Incompetent? Rule 1.1 – Competence Rules require legal knowledge, skill, thoroughness and preparation Can a 21st century lawyer claim competence if she’s not online? Does over-reliance on the Internet compromise our competence? Modern lawyers need to be good at many things.
- 4. Lawyering at the Speed of Light Rules 1.3 & 1.4 - Diligence & Communication E-tools allow lawyers to do more in less time (the curse of the Blackberry) Clients have come to expect more communication at all times Social media is tailor-made for interaction in real time (twitter, chat, texting, skype) Avoid snap judgments!
- 5. It’s Just Between Us “Friends” ;-) Rule 1.6 – Confidentiality Lawyers have a duty of confidentiality that may conflict with social media activities Don’t discuss a case without client’s consent Electronic communications may be subject to discovery and disclosure The lawyer’s duty to safeguard client confidential data should trump social networking
- 6. Confidentiality (continued) Clients can waive confidentiality by using social media (blog, chat, Facebook, etc.) The lawyer must advise the client of the dangers of social media Keeping client secrets in the age of WikiLeaks is a challenge Lawyers must discuss with clients the potential of security breaches (hacking, cyber-spying, etc.)
- 7. You Had Me at Hello! (match.com) Rules 1.8, 1.13, 1.16, 1.18 – The Attorney-Client Relationship An online “consultation” may create a relationship (simple Q&A) The creation of an attorney-client relationship comes with a host of legal duties and responsibilities On a blog use a disclaimer – “this is not legal advice; seek counsel”
- 8. Friending the Enemy Rule 4 – Dealings with Third Persons No lying or deceit A reader may interpret a post literally that you intended as a joke (no irony online) You must not communicate with a 3rd person who is represented by counsel You can’t use Facebook to contact an opposing party or violate a 3rd person’s right in order to get evidence
- 9. Handbook on Website Research
- 10. The Simpson Trial Syndrome Rule 3.6 – Trial Publicity No extrajudicial statements that are prejudicial to a proceeding A lawyer can mitigate the effects of adverse trial publicity Stick to neutral facts that are “of record” This rule may interfere with a lawyer’s “marketing” efforts
- 11. Multi-Jurisdictional Practice Online Rule 5.5 – Unauthorized Practice of Law You cannot practice in a state unless you are admitted The web knows no jurisdictional boundaries Temporary services (with admitted lawyer) and Pro Hac Vice admissions
- 12. Advertising Rule 7.2 – Ad restrictions Television-era rules for the Internet age Blogging as a marketing tool Rule 7.3 – Direct contact with client Solicitation by “real-time electronic communication” Jurisdictions are split on whether chat or IM are objectionable
- 13. Free Speech Is Not Free Rule 8.2 – Statements on Judges Officers of the Court can’t criticize the Court freely Sean Conway, Esq.: “Evil, Unfair Witch” No First Amendment protection
- 14. Miranda Warnings You have the right to remain silent. Anything you say can and will be used against you. You have the right to talk to a lawyer. You can stop talking at any time. Do you understand these rights? Do you still want to make a statement?
- 15. The Future & the Cloud Privilege & Confidentiality in the paperless office Where are the client’s records and who’s the custodian? The Cloud is cost-effective, but proper security is costly
- 16. Questions? Edward G. Lanza, Esq. (717) 237-7162 | elanza@eckertseamans.com September 2011
Editor's Notes
- It all starts at the beginning – the first rule in the Code requires lawyers to, among other things:- continuous learning, training and study- sharpen existing legal skill and acquire new skills- keep abreast of changes in the lawAll these areas can be enhanced by judicious use of technology and e-toolsIt’s a double-edged sword – you need to be online to be informed, but you can’t abandon old-fashioned ways of sharpening your legal knowledge and skills.
- The curse of the BlackberryA double-edge sword: 1. we can work and communicate faster2. working faster may lead to instant analysis, quickie advice, rushed judgment and mistakesLawyers must beware of the temptation to provide instant answers to tough questions.If we don’t have time to think and reflect, we are likely to act thoughtlessly (not a good thing)
- A public defender in Illinois was charged with publishing client confidences when she blogged about indigents she represented and referred to them by first name or jail ID number.In another case,
- The availability of THE CLOUD and cloud-related service creates a whole new level of pitfalls for lawyers.While cloud services may be more cost-effective, lawyers must be conscious of the additional levels of security that may be required to protect confidentiality.
- Hypo:AFacebook friend posts the following on your wall: “My doctor botched my vasectomy. My wife is pregnant. I want to sue.” A lawyer friend responds: “Don’t bother. No damages, no case.”
- You’d think that the no-lying rule is a “no-brainer.” But there are more than a few examples of lawyers lying to the Court. During a quick search on the Internet, I found two examples of a lawyer asking a judge for a trial extension based on a death in the family, only to have the judge look on Facebook and finding vacation and party pictures (TX & NY).Rule 4.4 – A lawyer shall not use methods of obtaining evidence that violate the legal rights of a third person.What if an opposing party has used social media (Facebook) to post incriminating information to “friends.”
- Lawyers have used traditional discovery methods (interrogatories, depositions, etc.) to obtain information about litigants on the other side of contentious disputes.More and more, online searches have become part of the lawyer’s most powerful investigatory tools. However, care must be taken to use these tools properly while staying within bounds of ethical conduct.This image is taken from:Handbook on Conducting Research on Social-Networking Websites in CaliforniaCreated by David Lee and Shane Witnov at theSamuelson Law, Technology & Public Policy Clinic, UC Berkeley School of LawFor: The Santa Clara County Public Defender’s Office
- The rule forbids the establishment of “an office or other systematic and continuous presence in the jurisdiction for the practice of law.” Rule 5.5(b)(1).There is a question as to whether an online presence is systematic and continuous enough so as to trigger a violation of the rules.
- The rules describe restrictions on advertising or “public communication.” What about LinkedIn recommendations?There is a question about what constitutes public communication and whether something like a blog is the type of public communication that the rules seek to regulate (it’s a hybrid).In Pennsylvania, you can have direct contact through email, but not a chat room. Whether rule 7.3 is violated will depend on the type of communication used (a blog may be OK, but Skype may not).Philadelphia Bar Association, Professional Guidance Committee, Opinion 2010-6 (June 2010).
- In 2008, an attorney in Florida was fined $1,200 for a blog post in which he called a judge and “evil, unfair witch.” The Florida Supreme Court considered the litigants’ first amendment arguments and ultimately found that the fine was appropriate.