LEGAL ETHICS & SOCIAL MEDIA Title Goes Here...misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading. Navigating

Susannah P. Mroz

MAKING THE RIGHT CALL:

DISCIPLINING/TERMINATING THE

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Presented By:

Sarah Jung Evans

LEGAL ETHICS & SOCIAL MEDIA

Your Clients Are Online – What about you?

In 2008, only 15 percent of attorneys were engaged in online activity.

Susannah P. Mroz



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By 2010, that number had

increased to 57 percent.

Where are Attorneys online?

� Avvo

� LinkedIn

� Facebook

� Twitter

� Blogs

� Guest articles

� Firm websites

Navigating the Ethics of Being

Online

� RPC 1.6(a)

� A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent or the disclosure is impliedly authorized in order to carry out the representation …

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Online

� RPC 1.6(a) & Social Media

� Keep information relating to the

representation of a client confidential

unless you obtain informed client consent

otherwise.

� For example, an attorney discussing cases

on Twitter, Facebook or a blog may breach

confidences by stating what the attorney is

doing at a particular time.


Online

� RPC 1.6(a) & What NOT to do in Social Media� One assistant public defender in Illinois

whose actions have resulted in bar disciplinary action discussed actual cases on her blog in vivid detail:� “#12409 (the client’s jail identification

number) This stupid kid is taking the rap for his drug-dealing dirtbag of an older brother because “he’s no snitch.” 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 common sense.”


Online

� RPC 3.6

� An attorney who is or has participated in

the investigation or litigation of a matter

cannot make an extrajudicial statement he

or she knows or reasonably should know

will be public communication and has a

substantial likelihood of materially

prejudicing an adjudicative proceeding.

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Online

� RPC 3.6 & Social Media

� Be careful about blog posts, tweets, and Facebook updates (even so-called “private” ones) which may reveal information that may prejudice proceedings.

� This is particularly true because jurors use the Internet when they go home in the evening and there is a risk of mistrial if lawyers participating in the case are blogging or tweeting about it.


Online

� RPC 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.


Online

� RPC 7.1 & Social Media� Because a communication is considered

“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,” using Twitter to broadcast specific case results may be unwise (140 character limit).

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Online

� RPC 7.1 & Social Media� The comments to this rule state that “an

unsubstantiated comparison of the lawyer’s services or fees with the services or fees of other lawyers may be misleading if presented with such specificity as would lead a reasonable person to conclude that the comparison can be substantiated.” As such, if you choose to make statements in social media which compare you to other attorneys, it is wise to include the appropriate “disclaimer or qualifying language” which would avoid an unjustified expectation of certain results.

� You should consider this rule when soliciting client recommendations on LinkedIn.


Online

� RPC 7.2(b)� A lawyer shall not give anything of value to a

person for recommending the lawyer’s services, except that a lawyer may … (4) refer clients to another lawyer pursuant to an agreement not otherwise prohibited under these Rules that provides for the other person to refer clients or customers to the lawyer, if (i) the reciprocal referral agreement is not exclusive, and (ii) the client is informed of the existence and nature of the agreement.


Online

� RPC 7.2(b) & Social Media� For example, do not agree to send clients

exclusively to a colleague in exchange for a recommendation on LinkedIn.

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Online

� RPC 7.2(c)� Any communication made pursuant to this

Rule shall include the name and office address of at least one lawyer or law firm responsible for its content.

� Make sure any online advertising includes the name and office address of at least one attorney or firm responsible for the content.


Online

� RPC 7.3(a)� A lawyer shall not, directly or through a third

person, by in-person, live telephone or real-time electronic contact solicit professional employment from a prospective client when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain, unless the person contacted: (a) is a lawyer; (2) has a family, close personal or prior professional relationship with the lawyer; or (3) has consented to the contact by requesting a referral from a not-for-profit lawyer referral service.


Online

� RPC 7.3� Avoid real-time electronic contact with

prospective clients; this likely includes Facebook posts, email, tweeting.

� WA permits “general advertising and written, recorded or electronic communications to transmit information from lawyer to prospective client … rather than real-time electronic contact.” In other words, more static communications like blogs, and LinkedIn profiles are okay.

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Online

� LinkedIn� Be cautious regarding specialties; do not

“imply you are a specialist in a particular field of law…” RPC 7.4(d)

� Recommendation feature may violate RPC 7.2(b)

� Do not “spam” potential clients who have not reached out to you first.

� The "Recommendations" feature allows clients to say whatever they want. Ethical standards prevent some types of statements, such as comparisons to other attorney services absent objective data -- i.e., "Best lawyer in town." Pre-screen the recommendations before they are posted.


Online

� Twitter

� Like Facebook, you need to be sensitive to revealing confidential information.

� Must be cautious about providing legal advice, establishing an attorney-client relationship, or soliciting legal work.

� RPC 7.3 includes prohibition on solicitation via real-time electronic contact.


Online - Review

� In sum – use your common sense when engaging in social media as an attorney� Don’t misrepresent or mislead..

� Don’t create an attorney-client relationship online – You can offer legal education, keeping the information general, and don’t advise a person to take a particular action – affirmatively state that you are NOT their attorney.

� Don’t make quid pro quo recommendations of other attorneys, or permit inaccurate reviews of your services online.

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Online

� Getting in the Weeds – Using

Social Media in litigation

� Avoid violating the Stored

Communications Act

� Don’t pretend to be someone you are not to get them to “friend” you and give

you non-public information on Facebook.


Online

� Getting in the Weeds – Using Social Media in Litigation

� But you CAN obtain publicly available information from Facebook, Twitter, blogs

� However, if you ask for the non-public material in discovery, be sure that your request is sufficiently relevant and not overly broad.

� Subpoenas to Facebook, etc., have not been extremely successful.

THANK YOU!

Sarah Jung EvansOgletree, Deakins, Nash, Smoak & Stewart, P.C.

601 Union Street, Suite 4200Seattle, WA 98101

Telephone: [email protected]

Documents

LEGAL ETHICS & SOCIAL MEDIA Title Goes Here...misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading. Navigating