Social Media and Social Media and Professional Ethics: Professional Ethics:

A Guide for Practitioners A Guide for Practitioners

June 22, 2011Moderator: Julie Gromer

Director of Webinars, LJN’s Web Audio Conference Division

jgromer@alm.com

Peter TorenPeter J. Toren is is a shareholder with Shulman, Rogers, Pordy, Gandal & Ecker where he specializes in intellectual property litigation, data protection and social media law. Prior to joining Shulman Rogers, Mr. Toren was a partner with Kasowitz, Benson, Torres & Friedman and Sidley Austin in New York. He was also a federal prosecutor with the Computer Crime & Intellectual Property Section of the Criminal Division of the United States Department of Justice and is the author of numerous articles and of the treatise Intellectual Property & Computer Crimes (Law Journal Press 2003) which has been updated 15 times since it was first published in 2003.

Program OverviewProgram Overview

• Social Media• Ethical Considerations

–Unauthorized Practice of Law–Competence, Diligence and Supervision–Confidentiality/Privilege–Creation of Unintended Attorney-Client Relationships–Conflict of Interest–Advertising/Solicitation–Duty of Loyalty–False/Misleading Communications–Communications with Third Parties–Use by the Judiciary–Trial Publicity

Why It MattersWhy It Matters

Easy to Get into TroubleEasy to Get into Trouble

• Attorneys simply don’t know what they can and can’t do.• Rules are ambiguous.• Application of ethical rules to social media varies greatly between jurisdictions.

Social Media - What is it?Social Media - What is it?

• Forms of electronic communication through which users create online communities to share information, ideas, personal messages and other content

• “Web 2.0” – Describes Internet websites that revolve around information sharing and user-centered design, and that allow users to create, upload, or modify content

Social Media - What it Looks LikeSocial Media - What it Looks Like

7

Hot-button topicHot-button topic

• Social media: everyone is doing it–600 million people are now using Facebook–175 million use Twitter – 50 million tweets/day!–126 million blogs on the internet–# of lawyers using social media grew from 15% in

2008 to 43% in 2009.

Use of Social Media WebsitesUse of Social Media Websites

• Use of social media websites may constitute the practice of law in a jurisdiction in which the attorney is not licensed.

• Activity that is substantial enough to constitute a systemic/continuous presence

• Maintains an interactive website/purposefully avails itself of a jurisdiction/reasonable to conclude that the law firm will be subject to the ethical rules in such jurisdiction

Unauthorized Practice of LawUnauthorized Practice of Law

• MRPC – 5.5(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; or

(2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction

FactorsFactors

• Physical presence is not required – Use of “telephone, fax, computer or other modern technological means could constitute unauthorized practice of law.

• Depends upon the nature/extent of the contacts

Disclaimers: Limit to Jurisdiction Licensed/Legal Knowledge

Competence/Diligence/SupervisionCompetence/Diligence/Supervision

MRPC 1.1 – A lawyer shall provide competent representation to a client

• Legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

• Lawyer must have a basic understanding of how the Internet/Social Media Websites function

• Lawyers cannot avoid responsibility by delegating supervision to other individuals (MRPC 5.1-5.3)

Must implement policies and procedures which regulate the use of social media

Confidentiality/PrivilegeConfidentiality/Privilege

MRPC 1.6: Prohibits attorneys from revealing 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

ExceptionsExceptions

• Prevent reasonable certain death/substantial bodily harm• Prevent the client from committing a crime/fraud that is

reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of another and in furtherance of which the client has used or using the lawyer’s services.

• Prevent/mitigate/rectify substantial injury to the financial interests or property of another that is reasonable certain to result or has resulted from the client’s commission of a crime/fraud in furtherance of which the client has used the lawyer’s services

ExceptionsExceptions

• Secure legal advice about the lawyer and the client

• Establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or respond to allegations in any proceeding concerning the lawyer’s representation of the client

• Comply with other law or court order

Inadvertent/Unauthorized DisclosureInadvertent/Unauthorized Disclosure

• No attorney-client communications should occur through social media

• Choose a means of communication that will provide a reasonable expectation of privacy

• Keep abreast of technological advances in security• Inadvertent disclosure

– Providing a list of “selected representations” on a firm website

Attorney-Client RelationshipsAttorney-Client Relationships

MRPC 1.18

(a) A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.

(b) Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation

Attorney-Client RelationshipsAttorney-Client Relationships

(c) A lawyer . . . shall not represent a client with interests materially adverse to those of a prospective client in the same or substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person. If a lawyer is disqualified from representation . . . , no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such matter.

ExceptionsExceptions

• Both the affected client AND the prospective client have given informed consent, confirmed in writing OR

• The lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; AND

• The disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee there from; AND

• Written notice is promptly given to the prospective client

Conflicts Conflicts

• Rule 1.18: If a lawyer is disqualified from representation . . . no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such matter

• Except if both the affected client and prospective client consent, or if the tainted lawyer who received the information “took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client AND the disqualified lawyer is timely screened from the representation

WebsitesWebsites

• A website is a “communication” about the lawyer or the lawyer’s services that is subject to the ethics rules.– Lawyer’s communications should be predominantly

informational– Communications that include a factual statement must

be able to be substantiated. – Information should not create an unjustified expectation.– Must obtain client’s consent– If the site provides links to other firms’ sites, there

should be clear explanations as to whether or not the firms are affiliated. (Ariz. Bar. 97-04)

Unintended RelationshipUnintended Relationship

• Attorneys must carefully monitor their websites and use of social media to avoid creating an attorney-client relationship (ABA Formal Op. 10-457)– Websites that invite inquiries may create a

prospective client-lawyer relationship.– Lawyers who respond to website-initiated inquires

about legal services should consider the possibility that Rule 1.18 may apply

Suggestions Suggestions

• Disclaim the existence of creating an attorney-client relationship

• Relationship is only created upon the express agreement from the lawyer

• Caution prospective clients not to send a lawyer confidential information w/o confirmation of an agreement to undertake representation

Danger of Social MediaDanger of Social Media

• Website advocates a position that is contrary to that of a firm client

• May create a conflict of interest that would not initially be discoverable by the law firm

• Cause embarrassment for a lawyer or the law firm.• Not even the most rigorous procedures may

prevent it

Advertising/SolicitationAdvertising/Solicitation

• Supreme Court: To preserve the “free flow” of commercial information, states could not wholly ban advertising by lawyers, but could regulate false, deceptive or misleading statements. (Bates v. State Bar of Arizona)

Model RulesModel Rules

• Rule 7.1 “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.”

Model RulesModel Rules

• Rule 7.2 – (a) A lawyer may advertise services through written recorded or electronic communication, including public media.

(b) A lawyer shall not given anything of value to a person for recommending the lawyer’s services except that a lawyer may– pay the reasonable costs for an ad– pay for qualified lawyer referral service

Rule 7.3 Direct Contact with Prospective ClientsRule 7.3 Direct Contact with Prospective Clients

• A lawyer shall not by in-person, live telephone or real time electronic contact or solicit professional employment from a prospective client when a significant motive for the lawyer’s doing do is the lawyer’s pecuniary gain, unless the person contact (1) is a lawyer; or (2) has a family, close personal, or prior

professional relationship with the lawyer.• Every communication constituting an advertisement

“shall include the words ‘Advertising Material” on the outside envelope, and at the beginning and ending of any recorded or electronic communication

May Be Difficult to Apply These Rules to the InternetMay Be Difficult to Apply These Rules to the Internet

• Written in 1st person• Often do not state “hire me.”• What about publication on Facebook or

LinkedIn of a lawyer’s latest litigation success?

Formal Opinion 10-457Formal Opinion 10-457

• Recognizes that websites have become a common means by which lawyers communicate with the public

• “[l]awyer websites may provide biographical information about lawyers, including educational background, experience, area of practice, and contact information (telephone, fax and email address).

• Information about the law firm, such as its history, experience, and areas of practice, including general descriptions prior engagements

WarningsWarnings

Lawyers must: (1) not include false, fraudulent, or misleading information on websites;

(2) Comply with the requirements of Rule 7

(3) Be mindful of the expectations created by the Website.

The information should be updated on a regular basis. Carefully manage inquires invited through the website. Legal information should include qualifying statements or disclaimers that “may preclude a finding that a statement is likely to create unjustified expectations or otherwise mislead a prospective client.

Does Your Website Promote Your Law Practice?Does Your Website Promote Your Law Practice?

Arizona Op. – Ethical advertising requirements apply, “communications should be predominantly informational.”

- Must include the cities where the lawyer has offices and/or will actually perform the work.

- Copies be maintained for three years- Factual statements “must be able to be substantiated”

Other general considerations when deciding what information Other general considerations when deciding what information many be on a law firm website are:many be on a law firm website are:

(1) The information should not create an unjustified expectation

(2) Fee information must comply with ER 7.1(e)(3) If a firm wants to list some of its existing clients and/or

include an endorsement from an existing client, the firm must obtain the clients’ consent prior to including their identities in the website

(4) If the site provides links to other firms’ sites, there should be clear explanations as to whether or not the

firms are affiliated.” Arizona State bar. Op. 97-04 (1997).

ExamplesExamples

• If I put details of a substantial victory on my website or Facebook page, is that advertising or am I just communicating to my 500+ closest friends on Facebook.?

• “If I’m doing this to help get myself hired, it is an ad.”

• Difficult to comply with the rules.• Some states require attorney ads to be

approved or pre-approved.

Duty of LoyaltyDuty of Loyalty

• MRPC 1.8(a): “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.”

• “I am going to argue my first motion.”• “I am nervous about today in court.”

False/Misleading CommunicationsFalse/Misleading Communications

• MRPC 7.1: 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.

Third-Party PostingsThird-Party Postings

May an attorney be held responsible for information about him or her posted by a third-part.

Ex- If a client posts a positive recommendation on LinkedIn must that recommendation comply with the requirements of Rule 7.1

To the extent that the recommendation may create an unjustified expectation or otherwise mislead a prospective client

Compliments Must ConformCompliments Must Conform

S.C.Bar. – Ad. Op. 99-09: Lawyer must act against too-favorable comments posted by a client on the client’s own online.Once a lawyer learns of these comments, the lawyer must tell the client to conform its statements to the ethics rules. If the client refuses, the lawyer must stop representing the client, or the lawyer will be deemed to have authorized/adopted the comments.

Communication with Third PartiesCommunication with Third Parties

MRPC 4.2 – In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order

LimitationsLimitations

• Oregon State Bar Association: a lawyer may access the website of an opponent represented by counsel if the website is open and available to the public and is similar to “reading a magazine article . . . written by that adversary.What about if an attorney must interact with a represented party to gain access to the party’s social media post? May violate Rule 4.2

Non-public postsNon-public posts

• What about accessing non-public social media posts of an unrepresented party using subterfuge to gain access?– MRPC 4.1(a) forbids a lawyer from making

“a false statement of material fact or law to a third person.”

– Rule 8.4(c) forbids a lawyer from engaging “in conduct involving dishonesty, fraud, deceit or misrepresentation.

Friending the EnemyFriending the Enemy

• May a lawyer withhold information when contacting an unrepresented individual on a non-public website?– NYC Bar: “An attorney or her agent may use her

real name and profile to send a friend request to obtain information from an unrepresented person’s social networking website without also disclosing the reasons for making the request.”

– Is this any different from an investigator buying a witness a drink at a bar.

The City of Brotherly LoveThe City of Brotherly Love

– Other bar associates have reached the opposite conclusion and found that legal ethics require an attorney to make a full of the motive for making a friend request.

– “Omits a highly material fact-namely that the 3rd party who asks to be allowed access to the witness’s pages is doing so only because he is intent on obtaining information . . . to impeach the testimony of the witness.

– Purposefully conceals the fact from the witness for the purpose of inducing the witness to allow access.

Judges Do It TooJudges Do It Too

• Important issue to judges and lawyers who may run afoul of rules in this area.

• An attorney who uses social media to contact a judge may also be found to have committed professional misconduct by “knowingly assisting a judge or judicial official in conduct that is a violation of applicable rules of judicial conduct or other law.”

Can You and a Judge Be “Friends”Can You and a Judge Be “Friends”

• Fla. Ethics op: Because the judge’s social media page would list the attorney as a friend of the judge, it conveys the impression that the attorney is in a special position to influence the judge and violates Canon 2 (“A Judge Shall Avoid Impropriety and the Appearance of Impropriety in all of the Judge’s Activities”)– Shall not convey to others the impression that

they are in a special position to influence the judge

Can’t We All Just Be FriendsCan’t We All Just Be Friends

• Online friendship would violate judicial Canon 5A that provides “a judge shall conduct all of the judge’s extra-judicial activities so that they do not (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge.”

• Judge shall perform judicial duties without bias or prejudice and shall not act in a manner that casts reasonable doubt on the judge’s capacity to act impartially.

In KY, SC and NY We can!In KY, SC and NY We can!

• Friending someone on a social media website does not imply those online “friends” are in a special position to influence the judge– The committee’s view is that the designation of a friend

on a social networking site does not, in and of itself, indicate the degree or intensity of a judge’s relationship with the person who is the friend. The committee conceives such terms as “friend” “fan” and “follower” to be terms of art used by the site, not in the ordinary sense of those words.

– Online friendships are less threatening than friendships in the real world, transparent

But Beware!But Beware!

• Lawyers in KY, SC and NY must consider carefully whether, in any particular case, the judge’s social media connections with an attorney may give rise to the level of a “close social relationship

• Judge may be under a duty to disclose it to opposing counsel or recuse himself from the case.

• If the judge fails to take this step, the attorney may be ethically obligated to do so.

Be Careful What You WriteBe Careful What You Write

• Florida attorney posted comments on a local blog– Called the judge an “evil unfair witch,” “seemingly mentally

ill,” “clearly unfit for her position and knows not what it means to be a neutral arbiter.”

– Florida Bar: Attorney violated five ethics rules, including Rule 4-8.2(a) (making false or reckless statements regarding the qualifications or integrity of a judge.); Rule 4-8.4(d) (engaging in professional conduct that is prejudicial to the administration of justice.

– Fla. Supreme Court rejected his claim that actions were protected by the 1st Amendment.

– Reprimand and a fine.

No Clear DirectionNo Clear Direction

• Oregon, Utah, Virginia and W. Va. – commercial activities by lawyers in chat rooms may violate ethical rules on solicitation

• California/D.C. – Refused to extend solicitation rules to real time online communications.

• MRPC 7.3 – Solicitations “shall include the words “Advertising Material” . . . at the beginning and ending of any recorded or electronic communication” unless certain exceptions apply.

• IS IT POSSIBLE TO COMPLY WITH THIS REQUIREMENT WHEN TWEETING, FOR EXAMPLE?

• Instruct employees that use of the internet and social media sites (if allowed) shall not interfere with work– Content-neutral policy– Difficult to enforce, given

blurring between private and public, work and personal

• Clearly state that employees have no expectation of privacy when using the employer-provided computer network– But even with notice, be aware of privacy

rights of employees– Stored Communications Act, Federal

Wiretap Act, other statutory implications– Beware – case law is still developing

Trial PublicityTrial Publicity

• MRPC 3.6(a): “A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.”

• (c) “A lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.”

ConclusionConclusion

• The work “technology” is not in the Model Rules commentary.

• You can’t be in the business world and not have the work technology mentioned.

Q&A

Exclusive offer to webinar participants!

Visit http://www.LawCatolog.comEnter promo code 2227609 at checkout

Save 10% on

Web 2.0: Hiring and Firing Decisions Based on Social

Media Postings

On Demand Webinarby Law Journal Newsletters

Thanks for joining us today!

For Upcoming Webinars visit:

www.ljnonline.com/conferences