Embed Size (px)
Citation preview
Using Social Media EthicallyOctober 15, 2014
Erin Wright Lothson, Esq.Corporate Counsel, Intellectual PropertyGroupon, Inc.
Roadmap
§Illinois Rules of Professional Conduct
§Social Media Issues
§Best Practices
2
Illinois Rules of Professional Conduct
3
Illinois Rules of Professional Conduct
Reality§ Current Illinois Rules of Professional Conduct don’t fit new
technology
§Lack any explicit mention of lawyers’ use of social media
Solution§ABA established a working group to evaluate and propose reforms to the Model Rules of Professional Conduct.§ ABA Commission on Ethics 20/20
§ Amendments to the Model Rules were approved in August 2012 by the ABA House of Delegates
4
Lawyers’ Duties
Four common ways lawyers violate the Rules of Professional Conduct when using social media: § violate duties owed to clients; § violate duties owed to third parties; § violate duties to ensure the administration of
justice; and § fail to adhere to rules regarding advertising.
5
Violating The Rules Is Professional Misconduct
§Lawyers must not violate the Rules of Professional Conduct.“It is professional misconduct for a lawyer to: violate or attempt to violatethe Rules of Professional Conduct, knowingly assist or induce another todo so, or do so through the acts of another.” Ill. Rules of Prof’l Conduct R.8.4(a) (2010).
§A lawyer cannot evade responsibility for misconduct by directing an agent or employee to act in a way prohibited by the Rules. Rule 5.3.
6
Duties Owed to Clients
When using social media, the three most relevant duties that lawyers owe to their clients are:
(1) confidentiality, a. Past, present & future clients
(2) loyalty (conflicts), and
(3) truthfulness.
7
Duty of Confidentiality
§ Violation, whether intentional or inadvertent.
§For example, an assistant public defender in Illinois was fired and suspended from practicing for 60 days after she revealed confidential information in a blog post.
§The assistant public defender concealed her client’s identity by referring to him by his jail identification number, even though the identity of her client was easily determinable with such information.
§ In the blog post, she referred to her client as a “stupid kid” and chastised him for “taking the rap for his drug-dealing dirt bag of an older brother.” § In re Peshek, M.R. 23794 (2010).
8
Duty of Honesty
§ Professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. Rule 8.4.§ Exaggerating experience online may rise to the level of
misconduct.
§ For example, a South Carolina lawyer violated this duty by exaggerating his experience level. The lawyer was a 2008 grad but falsely stated he graduated law school in 2005. The lawyer also falsely stated he handled matters in federal court, which he had not, and listed 50 practice areas in which he had little or no experience.§ In re Dannitte Mays Dickey, No. 27090 (2012).
§ May only practice law in the jurisdiction where you’re admitted to practice. Rule 5.5(a).
9
Duty of Loyalty
§ Communications create “prospective clients” under Rule 1.18. § Does the person have a “reasonable expectation of
confidentiality”? § The ABA recommends disclaimers to avoid any
misunderstanding.
10
Duties Owed To Third Parties
§ Can’t knowingly make false statements. Rule 4.1.
§ Can’t portray yourself as disinterested to someone who’s unrepresented. Rule 4.3.
§ Can’t speak to someone who’s represented about the lawsuit at issue. Rule 4.2.
11
Duties Owed To Third Parties
Friending or Following§ Can you withhold strategic information?
§ Don’t need to disclose the reasons for making the friend request if the lawyer uses her real name and profile. § New York City Bar Ass’n Comm. on Prof’l & Judicial Ethics, Op. 2010-2
(2010).
§ Some require the lawyer to disclose their motive when requesting to friend an adverse party. § Philadelphia Bar Ass’n Comm. on Prof’l Guidance, Op. 2009-02 (2009).
12
Duty to Ensure the Administration of Justice
§ No ex parte communications with Judges online. Rule 3.5.
§ Lawyers can’t make statements that are false or with a reckless disregard for the truth. Rule 8.2(a).§ For example, a Florida lawyer was publically reprimanded and fined after
he wrote a blog post that described a judge as an “evil, unfair witch” and questioned her mental stability. § See Steven Seidenberg, Seduced: For Lawyers, the Appeal of Social Media is Obvious. It’s
Also Dangerous, ABA Journal (Feb. 1, 2011).
13
Duty to Ensure the Administration of Justice
§ Can’t use social media to make statements that “would pose a serious and imminent threat to the fairness of a proceeding in the matter.” Rule 3.6(a).§ Posting about pending cases.
§ For example, a California lawyer had his license suspended after he wrote a blog entry about a trial in which he served as a juror.§ See James M. McCauley, Blogging & Social Networking for
Lawyers: Ethical Pitfalls, The Ethics Guru: Legal Ethics Blawg (Jan. 20, 2010.)
14
Duties Regarding Advertisements
§ When communicating about your services, can’t make false or misleading communications. Rule 7.1.
§ The words “Advertising Material” must appear at the beginning and ending of any electronic communication unless exempted from the Rules. Rule 7.3.
§ But it may be impractical to shoehorn notices or disclaimers into certain social media platforms.
§Twitter’s 140 character limit
15
Duties Regarding Advertisements
§ If online activities promote a law practice, the activity is considered lawyer advertising. § For example, a lawyer’s tweet proclaiming a court victory is likely
an advertisement, and therefore subject to the Rules on advertisements.
§ But a personal blog or Facebook page that does not mention the writer’s profession is likely not an advertisement.
§ Trouble often arises when lawyers blend both.
16
Duties Regarding Advertisements
§ Right to include accurate, non-misleading information about yourself, your practice, and your firm online. § ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 10-457 (2010).
§ Should update online information regularly.
§ Okay to include information about current or former clients online if you obtain your clients’ informed consent.
§ Lawyers are prohibited from allowing third parties to create unjustified expectations or otherwise mislead a prospective client.
§The South Carolina and Ohio Bar Associations have issued opinions that require lawyers to police online posts created by third parties for misrepresentations.
17
Duties Regarding Advertisements
§ Endorsement v. Recommendation
§Endorsement: General statement of approval.§Short words or phrases that describe what you do.§Recommendation: Statement by a client or former
client about an experience with the lawyer. §Longer, more detailed testimonials.
18
Duties Regarding Advertisements
19
Duties Regarding Advertisements
LinkedIn Endorsements & Recommendations§Rule 7.1 governs communications concerning a lawyer's services;
§Rule 7.2(b) prohibits lawyers from giving “anything of value” for a recommendation;
§Rule 7.4(c) allows lawyers to identify awards, certificates, or recognition to describe the lawyer’s qualifications so long as the reference is truthful, verifiable, and not misleading.
§Consider: Martindale’s AV and Super Lawyers ratings are almost entirely the result of peer endorsements.
§ See Adam W. Lasker, Lawyers and LinkedIn Endorsements: Proceed With Caution, Illinois Bar Journal (Jan. 2013).
20
Duties Regarding Advertisements
LinkedIn Endorsements§ Some states do not find this to be a violation.§ The Florida Bar Guidelines for Networking Sites (Revised May 8,
2012).§ South Carolina Bar Ethics Advisory Opinion 09-10.
§ California requires a disclaimer such as “this testimonial or endorsement does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter. Rule 1.400§ Indiana expressly prohibits a lawyer from using or
participating in the use of any form of communication that contains a testimonial about or endorsement of a lawyer. Rule 7.2(d).
§ The Illinois ARDC has not ruled on the issue.21
Lawyers & Social Media
22
Lawyers & Social Media
§ There is no explicit mention of lawyers’ use of social media in the Rules.
§ The ABA, ISBA, state supreme courts, and other organizations have announced opinions that apply the Rules and other similar rules regulating professional conduct to lawyers who use social media.
§ Rules apply to both professional and personal uses.
23
Golden Rules
BEST PRACTICES§ Duties Owed To Current Clients § Refrain from posting information about client matters online;
§Or obtain approval to do so.
§ Duties Owed To Third Parties § Use caution when blasting general legal advice over social media.
§ Avoid posting false or misleading statements.
§ Use caution about who you friend or follow.
24
Golden Rules
BEST PRACTICES§ Regarding Judges§ Avoid communicating inappropriately with judges.§ Avoid publically commenting on their abilities.
§ Duties Regarding Advertisements§Websites, posts, tweets, blasts, and comments must be accurate.§ Should be up to date.§ Disclaimers should be clear and noticeable.
25
Golden Rules
BEST PRACTICES
§ Duties Regarding Advertisements§Must bear all required notices and disclaimers. § Short and sweet will do: e.g. This communication does not
create the attorney-client relationship. This communication constitutes general legal advice directed to the public at large. Consult an attorney regarding the facts specific to your case in your jurisdiction.§ Customize your Twitter background and include your disclaimer§ Incorporate your disclaimer in your Bio / Profile§ #lawyerad #advertisement #disclaimer
26
Golden Rules
BEST PRACTICES§ Duties Regarding Advertisements§ Disclaimers can be used to prevent an unauthorized multi-
jurisdictional practice.
§ If you believe it is appropriate to provide general guidance, you should state you are not intending to provide legal advice, and that the person should seek legal advice from his or her own lawyer.
§ “I don’t know all of the relevant facts, so I cannot give you legal advice. You should consult your own lawyer. However, from what you have written, it sounds like …”
27
Golden Rules
BEST PRACTICES§Duties Regarding Advertisements§ LinkedIn Endorsements and Recommendations§ No false statements.§ Should be legitimate, not quid pro quo.§ Avoid endorsing judges.§ Remove endorsements that violate the Rules.§ Revise your profile to remove skills listed and the endorsement feature on
LinkedIn will disappear; or§ Click on “Manage Endorsements” where you can show or hide
endorsements by certain individuals.
28
Golden Rules
MORE BEST PRACTICES§ You are personally responsible for the material you post.
§ Review what’s visible.
§ Be sure you understand how public/private something is.
§ Identify yourself.
§ Respect your audience.
§ Admit mistakes.
§ Re-post and provide correct information.
§ Avoid political endorsements, politics and religion.
§ Respect copyrights.
§ Public domain websites including the Library of Congress.
§ Add value.
§ When you use social media, you consent to the platform’s terms of use.
29
