sixth annual in-house counsel conference panel 5 avoiding a bar complaint from your bff

Sixth AnnualIn-House Counsel

Conference

Panel 5Avoiding a Bar Complaint

from your BFF

22

PresentersAntone Johnson, Principal, Bottom Line

Law GroupJohn Lipsey, Vice President, Corporate

Counsel Services, LexisNexis Martindale-Hubbell

Jason Romwell, General Counsel, InsuranceLeads.com

Cortez Smith, Senior Legal Director, Yahoo! Inc.

Moderator - David S. Cohen, Director of Legal Affairs and Risk Management, Angels Baseball LP

33

Best Practices Tips for Attorneys in Social Media

John Lipsey

44

Best Practice 1Join a lawyer-only online site to

network/collaborate with legal peers - Research shows primary reasons

Question: What do you think are the top advantages of participating in an online legal professional network? Select up to three.

Corporate Counsel

Note: Item names have been shortened for display purposes

55

Best Practice 2Use Google Alerts or other reputation

aggregation tool to monitor the InternetThe

conversations are happening whether you are a part of them or not.

Opportunities await those who listen.

Enormous risks await those who don’t.

66

Best Practice 3Understand your goals in participating

in an online network and vet the network accordingly

Be cautious when:The site allows legal advice to be offeredThe site’s Terms and Conditions do not respect

your privacy, or will sell or rent your contact information

Company or entity creating the site is vague or unidentified

Site allows solicitation and spamming There is no authentication process following a

registration to ensure member identitySite allows anonymity Lacks robust privacy and communications

settings

77

Best Practice 4Your online profile is Your Public CV, so

do it rightThis is how employers, colleagues, and

peers research your skills and qualifications

Keep it clean, keep it real, and make sure it’s complete

Lack of online networking presence means you are “invisible.”

88

Best Practice 5Growing your network provides

immediate business benefits “We have a new matter in an unfamiliar jurisdiction.

Whom do I hire?”… “Whom do I know who can give me the inside scoop on my opponent?...”Search for lawyer based on practice area,

region, firm, etc. Review profile for relevanceRead articles/cases published by prospective

lawyerReview rating and client reviewsInstant referral via common connectionsDue diligence Selection decision

99

Best Practice 6When online, segment your audience

using public, private or confidential groupsFind “Relevant” Colleagues

Common interestsNarrow peer groups into smaller, more focused

clusters Enables “deep dives” into subject matter with

trusted colleaguesGroups are Focused and Intimate

Introduce yourself to the group and offer brief background

Participate frequently and offer ideas, questions and insights

Be helpful and pro-active

1010

Best Practice 7Extend the “footprint” of your current

networking activities by leveraging them online“What are you working on” feature

(LinkedIn)Use to promote or market ideas or activities

Drive traffic to your blog and presentationsBlog, Slide share, comments feed

Articles you’ve writtenImportant published decisionsOrganizations and committeesPro bono workCharitable work and community

involvement

1111

Best Practice 7Use all aspects

of the profile opportunity to demonstrate your thought-leadership so when others look you up, you stand apart

1212

Best Practice 8Leverage

online lawyer ratings and client reviews to vet outside counsel

User-generated reviews provide members reliable lawyer recommendations from other corporate counsel clients who have actually used an attorney’s services

1313

Best Practice 9When engaged online, truthfulness and

transparency are essentialBe transparent and clear in identity and

intentionAdhere to ethical rules and guidelines

governing counselYOYOW - You own your own wordsBe responsive and trustworthyFinish what you start Value and create thought leadership

1414

Best Practice 10Eight minutes per day is all it takes to

fully engage onlineSpend 5 minutes a day scanning RSS

feeds, blogs and emails1 second to check reputation alert, topic

or company key word alert5 minutes to respond-- if need be -- to a blog

post or social media entrySend email to author of great article – invites

to connect if she responds

1515

Best Practice 10Log into professional network every few

days for about 8-10 minutesConnects to 1-3 people every few visitsWrites a personalized email to 1-2 connectionsScans forums or blogs

Comments briefly or posts a messageOnce or twice a month (at least) – write

or co-writes a blog entry or post content you’ve already created (article, presentation, case, etc.)Twitter new blog postPost blog on network profileRSS sends blog entry automatically to all

subscribersRespond to comments

1616

COMPANIES/LAW FIRMS AND SOCIAL MEDIA USE

BY EMPLOYEES AND ATTORNEYS

Cortez Smith

1717

SOCIAL MEDIA USE What should companies/law firms do

when employees/attorneys use social media to talk about their companies/firms?

1818

SOCIAL MEDIA USE Approaches

No specific policyTotal ban?Social Media Policy/Guidelines

1919

SOCIAL MEDIA USECommon social media guidelines

Protect company confidential/proprietary information

Respect third party IP rightsTruthful statementsNo offensive statementsMedia contacts/inquiries

2020

Social Media and IP

Antone Johnson

2121

Social Media and IPSocial media provide endless

opportunities for employees and companies to get into troubleIP infringementConfidentiality breachesLoss of trade secret protectionDefamationHarassment and discriminationAntitrust violations, unfair trade

practices, etc.

2222

Social Media and IPLaws do not keep pace with rapidly

evolving usage patternsFour years ago, Twitter didn’t existFacebook access was restricted to

students until late 2006Google Wave? Gravity? What’s next?

2323

Social Media and IPSocial media present unprecedented

challenges to the enforcement of IP rights

Mistakes can be costlyUp to $150K statutory damages per

occurrence for copyright violationsAttorneys’ fees, defense costs, court

costs, etc.In June 2009, Jammie Thomas-Rasset was

found liable for $1.92 million damages in a case brought by RIAA for illegally sharing 24 songs

2424

Social Media and IPWho is most likely to get sued?

Hint: Plaintiffs’ lawyers work on contingency!

Most rank-and-file employees are judgment-proof

Most companies have substantial assets and/or insurance policies

Case law re: vicarious liability is developing, but who wants to be the case of first impression?

2525

Social Media and IPSafe harbors apply to operators of UGC

sites, not usersCopyright: DMCA Section 512 notice and

take-downEverything else: CDA Section 230

immunityGood for them, but what about the rest

of us?Trade secret protection can be lost by

disclosure

2626

Social Media and IPEvery company, regardless of industry,

needs a social media policyPolicies mean little unless they are

realistic, enforceable in theory, and enforced in practice

Every employee with computer access should be educated about the basics of IP and online liability

HR and/or IT departments should emphasize as part of new hire orientation

2727

Social Media and IPTips for crafting an effective social media

policy:Keep it short so people will actually read itFlexibility by functional area/business unit is

essentialEverything starts with good judgment and

oversightWhen in doubt, check with your manager or Corporate

CommunicationsAssume all statements made through social media are

made to the entire worldAvoid any references to confidential or proprietary

informationMaintain a clear boundary between personal and official

communications

Clarify ownership of IP created in or for social media

2828

Social Media and IPOriginal content is king; post only your

own wordsWhen referring to other content from

around the Web, link to it rather than copying

Attribution is key; many IP claims are motivated by credit rather than economics

Steer clear of risky content (music, videos, photos) unless original

For brand and content owners, monitoring social media can be an effective tool for enforcing their own IP rights

2929

Spying on your Potential BFF

(or Using SM to Investigate Employment Candidates)

Jason Romrell

3030

A Wealth of Information…

3131

Consider this unlikely scenario:

3232

Consider this unlikely scenario:

3333

Potential ProblemsEthics Violations

MRPC 4.1Lawyer shall not knowingly make false

statements of material fact or law to a third person…

CA B&PC 6068(d)Lawyer must employ…means only as are

consistent with the truth…CA B&PC 6101

The commission of any act involving moral turpitude, dishonesty or corruption…constitutes a cause for disbarment or suspension.

3434

Potential ProblemsEthics Violations

MRPC 8.4Misconduct for a lawyer to violate the RPC,

knowingly assist or induce others to do so, or do so through the acts of another…

CRPC 1-100Gives the State Bar Board of Governors power

to discipline lawyers for a willful breach of any of the CRPC.

CA B&PC 6128Lawyer is guilty of misdemeanor who…is guilty

of any deceit or collusion, or consents to any deceit or collusion…

3535

More Potential ProblemsDiscriminationInvasion of PrivacyTerms of Use ViolationsCriminal ViolationsBad Hiring DecisionsEmployee MoraleReputation (your and your client’s)

3636

Potential SolutionsHave a written policy on using SM for

background purposes.Follow your policy…consistently.Keep accurate records (electronic

discovery will make “hiding” your tracks difficult).

Don’t be stupid.Consider what purpose your investigation

will fulfill, then limit your search accordingly.

Don’t forget people are people.Some people lie about themselves. Some

people lie about other people. Do you know the difference?

3737

Potential Solutions

Don’t do anything you wouldn’t be proud to openly and completely share with others.

Be “transparent” (but don’t breach any confidences).

3838

30 Ethics Tips in 30 Minutes

Antone JohnsonJohn Lipsey

Jason Romrell Cortez Smith

3939

Mr. RomrellUnderstand the tools…or get the

heebie jeebies

4040

Mr. LipseyAsking subordinate employees to hand

over passwords to sites in order to review what other employees are saying about your brand constitutes “coercion,” and therefore permission is not “authorized” according to the Stored Communications Act (Houston’s Restaurant Case)

4141

Mr. JohnsonSocial media provide endless

opportunities for employees or counsel to make damaging admissions - this can come back to bite you

4242

Mr. SmithDo not disclose confidential company

business or client matters in your online profile, blog or comment post

4343

Mr. RomrellDon’t be a Twittiot

4444

Mr. LipseyLinkedIn “Testimonials” may constitute

“advertisements” in California and therefore subject to ABA Model Rule 7.2 governing lawyer advertising

4545

Mr. JohnsonCommunications regarding your

location can cause an inadvertent violation of the attorney’s duty of confidentiality (Rule 3-100)

4646

Mr. RomrellDon’t defame (also known as “yes, SM

counts as published”)

4747

Mr. LipseyUsing third parties’ passwords to

access social networking site in order to obtain impeachment evidence against a witness is unethical (Philly Bar Assn. Prof. Guidance Comm.)

4848

Mr. JohnsonWhen addressing legal subjects in

blogs, forums, or sites such as Avvo.com, take care to phrase discussions in terms of offering general legal information rather than legal advice to avoid inadvertent formation of an attorney-client relationship

4949

Mr. SmithCheck if your company or law firm has

a social media policy and if so, make sure you comply with it

5050

Mr. RomrellDon’t allow employees to play dirty

5151

Mr. LipseyBe honest and transparent about your

identity online at all times

5252

Mr. JohnsonData sharing can blur the boundary

between personal and professional on-line conduct

5353

Mr. SmithIf you form an online business with a

non-lawyer, do make sure that none of the business involves the practice of law

5454

Mr. RomrellBeware the pitfalls of using pretexting

as an investigative technique – good old fashioned investigative work not allowed when using Social Media tools

5555

Mr. LipseyWhen monitoring employees online

behavior and punishing them for policy violations, punishments must be meted out even handedly to all employees engaged in similar infractions

5656

Mr. JohnsonCommunications which would

otherwise be protected by attorney-client privilege or attorney work product doctrine can lose the privilege if other parties are included in the communication

5757

Mr. SmithDo not provide anonymous legal advice

in online comment posts or chat rooms

5858

Mr. RomrellPrivacy Rules!

The general rule is that you should not disclose anything that a “reasonable person” wouldn’t want disclosed.  What does your company want (or not want) disclosed?

5959

Mr. LipseyLegal advice given online to

unsophisticated non-professionals could inadvertently create attorney-client relationship and resulting ethical obligations

6060

Mr. JohnsonThe duty of confidentiality can be

compromised in many ways if an online social networking service is used to communicate with coworkers or co-counsel

6161

Mr. SmithDo not use copyrighted material (i.e.,

photos, text, etc.) in your online communications without permission of the copyright holder or licensor

6262

Mr. RomrellGuess what…the elements of

negligence don’t change just because you’re on a Social Media site

6363

Mr. LipseyUsing hypotheticals and eliminating

any explicit or implicit references to client names are important to ensuring “safe” online communications

6464

Mr. JohnsonGeographic boundaries are nonexistent

online. Formation of a long-distance attorney-client relationship can result in the unauthorized practice of law in a state in which you are not admitted to the Bar

6565

Mr. SmithIf you are using social media to attract

clients, do retain for two years a true and correct copy of your written communication or recording (i.e., video or audio)

6666

Mr. RomrellCan you inadvertently contract (or

modify a contract) through a Social Media site?  Yes.

6767

Mr. LipseyJust because ethics rules and the law

would allow you to deal with negative online activity directed at you or your company – it doesn’t mean you should use those methods (e.g., cease and desists)

6868

Mr. RomrellWhen a Friend is not a Friend (even if

they follow you, invite you or otherwise stalk you)

6969

Questions?

7070

Contact InformationAntone Johnson, Bottom Line Law

Group(310) 776-5484,

AFJ@bottomlinelawgroup.comJohn Lipsey, LexisNexis

(323) 662-0399 , john.lipsey@lexisnexis.com

Jason Romwell, InsuranceLeads.com(800) 647-2164 Ext. 192,

jasonr@insuranceleads.com Cortez Smith, Yahoo! Inc.

(310) 907-2713, cortez@yahoo-inc.com