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Ethics and social media -- Bar Association


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The ethics of social media for lawyers.

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Ethics and social media -- Bar Association

  1. 1. Ethically Navigating Facebook, LinkedIn, and Social Media For the Law Practice Steve Mehta, Mediator
  2. 2. Why Are You Here? <ul><li>You…. </li></ul><ul><li>Heard about presenter with dashing good looks. </li></ul>
  3. 3. Why Are You Here? <ul><li>You…. </li></ul><ul><li>Would like to learn more legal and ethical implications about social media before jumping in with both feet. </li></ul>
  4. 4. Today’s Session <ul><li>1. What is Social Media? </li></ul><ul><li>2. Why Social Media & Social Networking? </li></ul><ul><li>3. The Big Ones - overview </li></ul><ul><li>4. Uses </li></ul><ul><li>5. Legal and Ethical Issues </li></ul><ul><li>6. Mistakes </li></ul>
  5. 5. What is Social Media? <ul><li>It is an on-line conversation </li></ul><ul><li>“ Online applications, platforms and media which aim to facilitate interaction, collaboration and the sharing of content” </li></ul><ul><li>Social media emphasizes the importance of interaction, the consumer and the community. </li></ul><ul><ul><li>Power to the People, Social Media Tracker. Wave 3, 3/08 </li></ul></ul>
  6. 6. Why Social Media Matters <ul><li>LinkedIn </li></ul><ul><ul><li>45 million users, strongly business-oriented, valued at $1 billion, </li></ul></ul><ul><ul><li>19 th Most Popular Site in U.S. </li></ul></ul><ul><li>Facebook </li></ul><ul><ul><li>#1 Website in world! </li></ul></ul><ul><ul><li>668,000 incoming links </li></ul></ul><ul><ul><li>350 Million Users (12/2/09) </li></ul></ul><ul><ul><li>45 million status updates a day </li></ul></ul><ul><li>Twitter </li></ul><ul><ul><li>Fastest growing social network </li></ul></ul><ul><ul><li>72.5% of the 44 million Twitter users joined during the first five months of 2009. </li></ul></ul><ul><ul><li>As of 2/09 Twitter had 1382% growth. (that was with 7 million members) </li></ul></ul><ul><ul><li>Recently turned down $.5 Billion buyout offer from Facebook </li></ul></ul><ul><li>YouTube </li></ul><ul><ul><li>4 th Most Popular Site in World </li></ul></ul><ul><ul><li>Accounts for 25% of all Google searches </li></ul></ul><ul><li>Coming soon </li></ul><ul><ul><li>Google Buzz </li></ul></ul>
  7. 7. Professional Social Media <ul><li>Avvo </li></ul><ul><li>JDSupra </li></ul><ul><li>Linkedin </li></ul><ul><li>Plaxo </li></ul><ul><li>Yelp </li></ul><ul><li>Google Places </li></ul><ul><li>Findlaw </li></ul><ul><li>Facebook </li></ul>
  8. 8. Can You Be Googled? <ul><li>Jurors can and do Google you </li></ul><ul><li>How visible are you on Google? </li></ul><ul><li>Do People find the things you want to be found when they Google you? </li></ul>
  9. 9. Blogging <ul><li>Definition: type of website, with regular entries of commentary, descriptions of events, or other material such as graphics or video. </li></ul><ul><li>People read the blog by finding the content on internet or subscribing to your blog </li></ul><ul><li>People Interact with your blog </li></ul>
  10. 10. Blogging <ul><li>73% of people using internet have read a blog. </li></ul><ul><li>U.S.: 23% read daily; 42% read weekly </li></ul>
  11. 11. Twitter <ul><li>“ Blogging on Speed” </li></ul>
  12. 12. Legal Related Uses of Social Media <ul><li>Increase your presence on the web </li></ul><ul><li>Increase social relationships with clients </li></ul><ul><li>Provide information to clients </li></ul><ul><li>Update clients on legal issues </li></ul><ul><li>Communicate with clients – more and more are messaging directly through the media </li></ul>
  13. 13. Legal Related Uses of Social Media <ul><li>Learn Information About Your Area </li></ul><ul><li>Network with other professionals </li></ul><ul><li>Increase your awareness to media </li></ul><ul><li>Self Promotion </li></ul><ul><li>Research on legal topic </li></ul><ul><li>Research on witnesses/opposing parties </li></ul>
  14. 14. Witness Investigation <ul><li>Trend is evident to investigate witnesses and parties on social media </li></ul>
  15. 15. Party Admissions <ul><li>Statements in Social Media would be considered admissible ADMISSIONS </li></ul><ul><li>Used daily in mediation </li></ul><ul><li>In court </li></ul>
  16. 16. Lawyer Gives Examples of Husbands‘ Divorce Cases Undone by Facebook <ul><li>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. </li></ul><ul><li>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. </li></ul><ul><ul><li>Story reported by Mark Hansen in ABA Journal </li></ul></ul><ul><li>Party in employment mediation claimed Wrongful Termination but on Facebook stated that it was layoff and that she was glad </li></ul>
  17. 17. Professional Obligation to Your Client <ul><li>Advise client of the risk of posting photos and information </li></ul><ul><li>Do you advise them to stop posting? </li></ul><ul><li>Do you get copies of their Facebook and Twitter posts? </li></ul><ul><li>Do you tell them to delete their posts? </li></ul><ul><ul><li>Spoliation. </li></ul></ul>
  18. 18. Standard of Care <ul><li>What is the legal standard? </li></ul><ul><li>Letter? </li></ul><ul><li>Is an oral warning sufficient? </li></ul><ul><li>Is it your duty to look at a client’s social media? </li></ul><ul><li>What about an opposing party? </li></ul>
  19. 20. Advertising <ul><li>State Bar opinion 2001-155 – Website is communication and not solicitation </li></ul><ul><ul><li>Must not be false and misleading RPC1-400, B&P 6157.1 </li></ul></ul><ul><ul><li>Factually Substantiated B&P6158 </li></ul></ul><ul><li>LA, proposed rules that specifically addressed Internet advertising by attorneys were declared unconstitutional by a U.S. District Court </li></ul><ul><li>Must disclose advertising – difficult in a tweet </li></ul><ul><li>Cross Jurisdictional Practice of Law </li></ul>
  20. 21. Advertising <ul><li>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 </li></ul><ul><li>Must be retained for year. 6159.1 </li></ul>
  21. 22. Social Media Profiles Might be Subject to State Bar Advertising Rules <ul><li>The Tennessee Board = LinkedIn profiles as advertising. </li></ul><ul><li>State Bar of Texas = LinkedIn and Facebook profiles do not need to be filed for advertising review. </li></ul><ul><li>Often a lawyer’s LinkedIn profile contains only the exempt information, so it doesn’t trigger the advertising rules. 6158.2 </li></ul>
  22. 23. Is It Ethical for a PR Agency or Others to Write an Unattributed Post for a Lawyer’s Blog? <ul><li>Personal Nature of Blog vs. Corporate Nature is determinative. </li></ul><ul><li>Arguably misleading because clients might think that you have written the material and are therefore knowledgeable about a particular topic. </li></ul>
  23. 24. Conflict of Interest and Conflict Checks <ul><li>Facebook friends don’t come with a built-in conflicts check, so lawyers have to be careful. </li></ul>
  24. 25. Recommending Feature on LinkedIn <ul><li>Giving/Receiving </li></ul><ul><li>Reciprocal – You recommend my back, I’ll do yours </li></ul><ul><li>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 </li></ul>
  25. 26. Designation as Expert on LinkedIn <ul><li>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) </li></ul><ul><li>“ My practice focuses exclusively on bankruptcy” rather than “I specialize in bankruptcy.” </li></ul>
  26. 27. Website Names <ul><li> </li></ul><ul><li> </li></ul><ul><li>Misrepresentation Issues identified above </li></ul><ul><li>Consequences are Bar Discipline </li></ul>
  27. 28. Real Time Communications – or Solicitations? <ul><li>Twitter </li></ul><ul><li>“ If you are looking for a DUI lawyer, I can give you my Twitter big break on fees…email me.” </li></ul><ul><ul><li>contact would violate ethical rules in a number of states. </li></ul></ul><ul><li>“ Just got out of the Cobb County jail. Anyone know a good inexpensive DUI lawyer?” The response to  that  tweet would be permitted in some states, because the tweeter asked for a lawyer. </li></ul><ul><li>Tweeting you are drafting a MSJ could violate confidentiality </li></ul>
  28. 29. Confidentiality <ul><li>“ Just talked to my client who totally lied to me about all the facts.” </li></ul><ul><li>Date and Time of the tweet gets posted -- Potential of revealing information to someone who might know that the client was meeting with the lawyer that day. </li></ul><ul><li>Location Stamp on Facebook/Social media when you post. </li></ul>
  29. 30. Ex Parte Communications <ul><li>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. </li></ul>
  30. 31. Pretexting <ul><li>Friending a witness to obtain information </li></ul><ul><li>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. </li></ul><ul><li>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). </li></ul>
  31. 32. Communicating with Opposing Client <ul><li>CRPC 2-100/ABA 4.2 Cannot Communicate with represented party re: subject of representation without counsel permission </li></ul><ul><li>Friending on Facebook </li></ul><ul><li>What about Twitter where they can publicly follow you? </li></ul>
  32. 33. Lack of Candor Toward the Tribunal <ul><li>Facebook posts that are contrary to what was told to judge. </li></ul><ul><li>B&PC 6068(d) and B&PC 6128 require California lawyers to be truthful in all statements, whether to the court, opposing parties, clients, or third parties. </li></ul>
  33. 34. YouTube Videos <ul><li>In Texas, merely including an attorney’s contact information on a purely educational video, without soliciting contact, does not constitute advertisement. </li></ul><ul><li>Advertising Rules </li></ul>
  34. 35. Judicial Ethics <ul><li>May a judge post comments or material on their social networking page? </li></ul><ul><li>May a judge have &quot;friends&quot; on their page that happen to be lawyers that appear before them in court? </li></ul><ul><li>May a committee campaigning for a judge's candidacy establish a social networking page on behalf of the campaign? </li></ul><ul><li>Can a judge do his own research on social media? </li></ul>
  35. 36. Creating Attorney Client Relationship <ul><li>Depending on the information revealed, an attorney-client relationship could easily be formed over Facebook or in a series of e-mails </li></ul><ul><li>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 </li></ul><ul><li>Could be legal advice </li></ul><ul><li>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) </li></ul>
  36. 37. Social Media Public Reprimand <ul><li>Respondent represented a college student in relation to allegations that he possessed a controlled substance. </li></ul><ul><li>Respondent published the following entry on her blog: </li></ul><ul><li>#127409 (the client’s jail identification number) This stupid kid is taking the rap for his drug-dealing dirtbag of an older brother because &quot;he’s no snitch.&quot; 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. </li></ul><ul><li>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. </li></ul><ul><li>What about calling the judge an A$$H0LE </li></ul><ul><ul><li>“ 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. </li></ul></ul>
  37. 38. Example <ul><li>Frank R. Wilson, a lawyer in San Diego, caused a criminal conviction to be set aside and sent back to a lower court because of his blog postings as a juror. </li></ul><ul><li>Mr. Wilson received a 45-day suspension, paid $14,000 in legal fees and lost his job. </li></ul>
  38. 39. Discovery of Social Media <ul><li>Privacy v. Discovery rights </li></ul><ul><li>Motion practice </li></ul>
  39. 40. Discovery: Stored Communications Act <ul><li>&quot;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.“ </li></ul><ul><li>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. </li></ul>
  40. 41. What About These?
  41. 42. Social Media Issues <ul><li>Create a policy </li></ul><ul><li>Look at </li></ul><ul><li>Identity theft </li></ul><ul><li>Defamation (law is behind social media) </li></ul>
  42. 43. Connecting with Clients <ul><li>Attorney – Client privilege </li></ul><ul><li>Are they clients, friends or both? </li></ul><ul><li>Check privacy settings and contact settings </li></ul><ul><li>Work product issues? </li></ul>