The Ethics of Law Practice and Legal Marketing in a Social Media Environment (ICLEF)


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The Ethics of Law Practice and Legal Marketing in a Social Media Environment (ICLEF)

  1. 1. Cynthia SharpPresented by• Professional CLE Speaker• Attorney Business Coach
  2. 2. The Ethics of Law PRACTICE ANDLEGAL Marketing in a Social Media Environment Event Sponsor: March 14, 2013 2
  3. 3. Preliminary Thoughts•I decided to attend “Social Media” because:•I would be really happy if we could cover the following: 3
  4. 4. Wake Up To Social Media! 4
  5. 5. Attorneys Using Social Media 56% 43% 15% Quadrupled in 2 years! 5
  6. 6. • 2 Billion internet users in the world • 7 billion people in the world • More than 1 billion Social Network users2012 Simply Zesty; Online PR & Social Media 6
  7. 7. Facebook Friends Cynthia SharpBruce Steiner Ron Fatoullah 7
  8. 8. Facebook Friends Cynthia SharpBruce Steiner Ron Fatoullah 8
  9. 9. Facts About•100% of Fortune 500 Companies Have Executives on Linkedin•200 Million Members•Every Second - 2 New Member Joins 9
  10. 10. 1.6 billionsearch queries 300 million tweets 10
  11. 11. Social Media Practical Applications• Marketing• Practice Area • Develop Internal Social Media Policy • Compliance Procedures • Criminal Defense • Civil Litigation• Litigation/Research Tool 11
  12. 12. Social Media•New Case Law•Interesting Ethical Issues 12
  13. 13. Digital Immigrant or Digital Native? 13
  14. 14. Social Media as a Marketing Tool STRATEGY BRAND PROFILE EXECUTION 14
  15. 15. Information About Legal Services • Protected Form of Commercial Speech • Subject to Rules 4-7.1 - 7.5 15
  16. 16. Information About Legal Services• 7.1 - Communication Concerning a Lawyers Services• 7.2 - Advertising• 7.3 - Direct Contact with Prospective Clients• 7.4 - Communication of Fields of Practice andSpecialization• 7.5 - Firm Names and Letterheads 16
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  18. 18. American Bar Association Formal Opinion 10-457 18
  19. 19. Free Commercial Speech orRegulated Attorney Advertising 19
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  22. 22. • Recommendations feature• “Specialties” Field• “Answers” Section 22
  23. 23. Use Common Sense! 23
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  25. 25. ICLEF @ICLEFFamily #Law Case Review re: childsupport due on irregular bonus income. #legal, 2013 25
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  27. 27. Research Tool Write down 3 ways that you use the internet to research 27
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  29. 29. Citation Forms DevelopedRittman, S. (Spring 2008). Don’t Use the “R” Word. Retrieved on January 25, 2011 from 29
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  31. 31. Litigation Tool 31
  32. 32. Mining Information •Vetting Jurors •Pretexting (“Friending”) 32
  33. 33. Internet Research by Jurors 33
  34. 34. Discovery•Warn clients not to discuss their case online•Standard Applied: Reasonably calculated to lead to discovery of admissible evidence•Notice to produce 34
  35. 35. Technical Revolution - Ethical Evolution 35
  36. 36. Confidentiality Notice This electronic transmission and any attached documents or other writings are confidential and are for the sole use of the intended recipient(s) identified above. This message may contain information that is privileged, confidential or otherwise protected from disclosure under applicable law. If the receiver of this information is not the intended recipient, or the employee, or agent responsible for delivering the information to the intended recipient, you are hereby notified that any use, reading, dissemination, distribution, copying or storage of this information is strictly prohibited. If you have received this information in error, please notify the sender by return email and delete the electronic transmission, including all attachments from your system. 36
  37. 37. Ethical Evolution •Terminology •Competence •Confidentiality •Communication •Duties to Prospective Clients •Receipt of Erroneously Sent Document •Supervision of NonLawyer Assistants •Advertising 37
  38. 38. TerminologyMRPC 1.0 Terminology (o) Writing or Written Comment 9 to MRPC 1.0{Screening} 38
  39. 39. Competence“To maintain the requisite knowledge and skill, alawyer should keep abreast of changes in the lawand its practice, including the benefits and risksassociated with relevant technology, engage incontinuing study and education and comply withall continuing legal education requirements towhich the lawyer is subject.” - Comment 6 to MRPC 1.1 (as amended) 39
  40. 40. Redaction IssuesLong gone are the days when the attorney duty of confidentiality imposed by Model Rule 1.6was satisfied by maintaining a fireproof steel locked filing cabinet behind a secured office door.The technological revolution has taken us beyond the world of desktop computers with adedicated server to the stratosphere of cloud computing and the genius of smartphones andelectronic tablets.The portability of our “second brain” results in additional ethical responsibilitiesthat must not be ignored. Lawyers’ obligations have radically changed in light of the methods bywhich confidential client and personal information is now carried and stored. 40
  41. 41. Data Disaster 41
  42. 42. Duty of Confidentiality MRPC 1.6 42
  43. 43. Communication“... A lawyer should promptly respond to oracknowledge client communications.” - Comment [4] of MRPC 1.4 (asamended) 43
  44. 44. Duties to Prospective Clients “...[a] person becomes a prospective client by consulting with a lawyer about a client-lawyer relationship with respect to a matter”. - Comment 2 to MRPC 1.18 (as amended) 44
  45. 45. Does a Communication Constitute a Consultation?•Did the lawyer encourage or solicit inquiries about a proposed representation?•Did the person encounter any warnings or cautionary statements that were intended to limit, condition, waive or disclaim the lawyer’s obligations?•Were those warnings or cautionary statements clear and reasonably understandable?•Did the lawyer act or communicate in a manner that was contrary to the warnings or cautionary statements? 45
  46. 46. Receipt of Erroneously Sent DocumentsLawyer receiving electronically stored information thathe or she knows or reasonably should know was sentinadvertently must  promptly notify the sender of themistake (Model Rule 4.4(b))   Duty to notify extends to metadata. (Comment 2) 46
  47. 47. Recommended Metadata ScrubbersMetadata Assistant: Protect: 47
  48. 48. Do You Secure PDF Files Before You Transmit? Suggested Office Policy: “When there is no legitimate reason to transmit an editable document, we will always send SECURE PDFs.” 48
  49. 49. You Cannot Delegate Ethical ResponsibilitiesModel Rule 5.3 requires attorneys who outsourcework to non-attorneys to “make reasonable effortsto ensure that the non-lawyers’ services are providedin a manner that is compatible with the lawyer’sprofessional obligations”. 49
  50. 50. Attorney Advertising RulesLawyers may pay Internet-based lead generators forgenerating client leads, as long as the lead generator doesnot “recommend” the lawyer.   (MRPC 7.2, Comment 5)Only a “target communication initiated by the lawyer”directed to a “specific person” that “offers to provide”legal services is a solicitation. Communications to thegeneral public, including Internet banners, are notsolicitations. (MRPC 7.3) 50
  51. 51. Rule 1-3 “A lawyer shall act with reasonable diligence and promptness in representing a client.” Comment 2 - “A lawyers work load must be controlled so that each matter can be handled competently.” 51
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  54. 54. Law FirmSocial Media Policy 54
  55. 55. Online or In Line•Keep client confidences•Avoid appearance of establishing client-attorney relationship•Be polite•Don’t fight•Don’t bad mouth law firm, colleagues or judges. 55
  56. 56. Moving Forward•Did you learn anything new today?•Did you gain any insight into yourself or someone else?•Do you plan to change any of your behaviors as a result of today’s session?
  57. 57. Evaluations 57
  58. 58. Connect with Cindylike us follow us connect with us follow us share with us The Sharper Lawyer
  59. 59. The Sharper Lawyer now offers a complimentary half hour coaching session. Email Cindy for more details!
  60. 60. Thank You The Sharper Lawyer