Ethical Considerations When Ethical Considerations When Using Social MediaUsing Social Media

Kimberly C. MetzgerIce Miller LLPJames Dimos

Frost Brown Todd LLC

““The future is already here; The future is already here; it’s just not evenly distributed.”it’s just not evenly distributed.”

William Gibson

What We’ll Cover

Web 2.0 and Social Media – A Basic Taxonomy What is Your “Internet Presence”? Why Lawyers Are Using Social Media and Web 2.0 Legal Issues and Ethics for Web 2.0 – Basic Rules Ethical Concerns for Common Scenarios Conclusions and Suggesting a Few Action Steps

Key Web 2.0Key Web 2.0 ConceptsConcepts

•User-generated Content•Internet as application platform•Multiple channels•Global•Third-party Hosting / Loss of Control•Social / Community

What is my current online presence?

Do I want an online presence?

WHY HAVE A WEB PRESENCE?WHY HAVE A WEB PRESENCE?

Why Have A Web Presence

• 1 – To learn• 2 – To network• 3 – To be a better communicator• 4 – For the profession• 5 – Fun

The goals of business development efforts

• Increased visibility• Developing a good

reputation• Becoming trusted• Getting clients

Traditional ways to develop business

• Bar associations• Trade groups• Clubs• Alumni groups• Cocktail parties

Traditional ways are limited by time and space

Social media is less limited by time and space

Objectives of social media

• Connection• Conversation• Credential

building

What Are My Choices?

LinkedIn

Facebook

Twitter

Blogs

Some More Web 2.0• MySpaceMySpace• MartindaleMartindale• SlideshareSlideshare• Legal OnrampLegal Onramp• Legal ZoomLegal Zoom• Bid Bid

What can I do when I don’t like what is being said about me online?

Communications Decency Act• Section 230 of the Communications Decency Act, passed in

1996, is perhaps the most relevant to online defamation. It provides: "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider".

• Effectively, this section immunizes both ISPs and Internet users from liability for torts committed by others using their website or online forum, even if the provider fails to take action after receiving actual notice of the harmful or offensive content.

Communications Decency Act

• There are court cases and other actions have led to ISPs being forced to remove content from their servers and even provide personal details including the IP address of known offenders.

• Also some ISPs will act quickly to remove defamatory content from their servers out of fairness or liability concerns.

What Do The Rules Say?

REGULATING SOCIAL AND PROFESSIONAL NETWORKING SITES

• As with other aspects of the law, technology may outpace the drafters of laws and rules.

• Indiana has provided general guidance in the “7-series” of the Indiana Rules of Professional Conduct.

• The Court amended these rules on October 14, 2010, effective January 1, 2011.

A GENERAL OBSERVATION REGARDING THE NEW RULES

• The amendments appear to reflect a change in rule writing philosophy.

• Instead of detailed prohibitions, the Court has made more generalized statements of what is permitted or prohibited.

• Should provide more flexibility and guidance in keeping up with technology.

RULE 7.1 COMMUNICATIONS CONCERNING A LAWYER’S SERVICES

• This is a new rule as 7.1 was previously reserved.

• “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.”

RULE 7.1 COMMUNICATIONS CONCERNING A LAWYER’S SERVICES

• As with other amendments, the details are located in the comments.

• Cmte 1—”governs all communications about a lawyer’s services, including advertising permitted by Rule 7.2. Whatever means are used to make known a lawyer’s services, statements about them must be truthful.” (emphasis added)

RULE 7.1 COMMUNICATIONS CONCERNING A LAWYER’S SERVICES

• Cmt 2—Notes that truthful statements that are misleading are also prohibited.

• Sets forth a long list of the types of statements that may be ”truthful” but still misleading.

• Similar to the list set forth in the old Rule 7.2 (c ) though more extensive.

RULE 7.1 COMMUNICATIONS CONCERNING A LAWYER’S SERVICES

• Worth noting– “Contains a claim about a lawyer, made by a third

party, that the lawyer could not personally make consistent with the requirements of this rule”

– Contains a representation, testimonial, or endorsement of a lawyer or other statement that, in light of all the circumstances, is intended or is likely to create an unjustified expectation about the lawyer, or law firm or a person’s legal rights.

RULE 7.2 ADVERTISING

• Rule 7.2(a)--“Subject to the requirements of this rule, a lawyers and law firms may advertise their professional services and law related services. The term ‘advertise’…refers to any manner of public communication partly or entirely intended or expected to promote the purchase or use of the professional services of a lawyer, law firm, or any employee of either involving the practice of law or law-related services.”

RULE 7.2 ADVERTISING

• Rule 7.2(b)—A lawyer shall not give anything of value to a person for recommending or advertising the lawyer’s services except:– The reasonable costs of the communications– The usual charges of a legal services or lawyer

referral program– Non-exclusive cross-referral agreement with other

lawyers or non-lawyers, if disclosed to client– Purchase of a law practice

RULE 7.2 ADVERTISING

• Rule 7.2(c)—Any communication subject to the rules must include the name and office address of at least one lawyer or law firm responsible for its content and a copy must be maintained for six years after its dissemination.

RULE 7.2 ADVERTISING• Once again, the comments provide more detail as

to permissible subjects of advertising.• Comment 2 reflects the list previously contained in

Rule 7.2(b)• Comment 4 expressly states that while lawyers

cannot pay others for channeling professional work, a lawyer can pay for such things directory listings, advertisements, domain-name registrations, sponsorship fees, etc. Lawyers can also compensate employees, agents and vendors for marketing and client-development services.

RULE 7.3 DIRECT CONTACT WITH PROSPECTIVE CLIENTS

• A lawyer (including the lawyer’s employee or agent) shall not by in-person, live telephone or real-time electronic contact solicit professional employment from a prospective client when a significant motive for a lawyer’s doing so is the lawyer’s pecuniary gain unless the person contacted:– Is a lawyer

– Has a family, close personal or prior professional relationship with the lawyer.

RULE 7.3 DIRECT CONTACT WITH PROSPECTIVE CLIENTS

• A lawyer shall not solicit professional employment from a prospective client by in-person or by written, recorded, audio, video, or electronic communication, including the Internet if:– The prospective client has made known to the lawyer a desire not to be solicited

– The solicitation involves coercion, duress or harassment

– The solicitation concerns within 30 days of a personal injury, wrongful death or accident or disaster

– The solicitation involves a specific matter and the lawyer knows or has reason to know that the person is represented by counsel

– The lawyer knows or should know that the mental state of the person solicited makes it unlikely that the person would use reasonable judgment in hiring a lawyer.

RULE 7.3 DIRECT CONTACT WITH PROSPECTIVE CLIENTS

• Every written, recorded, or electronic communication from a lawyer soliciting professional employment…shall:– Include the words “Advertising Material” at the

beginning of any written communication and at the beginning and end of a recorded one;

– A copy must be filed with the Indiana Supreme Court at or prior to its dissemination

– A filing fee of $50 must accompany the filing– Retain a list of the names and addresses, including email

addresses of all persons solicited.

RULE 7.3 DIRECT CONTACT WITH PROSPECTIVE CLIENTS

• A lawyer cannot accept referrals from a lawyer referral service unless:– A lawyer referral service operated by an ABA accredited law school– Operated or sponsored on a not-for-profit basis by a bona fide non-

profit community organization– Operated or sponsored on a not-for-profit basis by a governmental

agency– Operated, sponsored or approved by a bona fide bar association

whose lawyer referral service has been sanctioned by the Disciplinary Commission

– Operated by a court– Military legal assistance offices– A non-profit that provides lawyer referral services to its members

RULE 7.4 COMMUNICATION OF FIELDS OF PRACTICE AND SPECIALIZATION

• May communicate that you practice or do not practice in a particular field of law

• Cannot claim a specialty unless obtained a certification as a specialist as provided for under Admission and Discipline Rule 30 and the certifying organization is identified in the communication

• A lawyer who is admitted before the USPTO may use the designation “Patent Attorney” and a lawyer engaged in Admiralty may use the designation “Admiralty” or “Proctor in Admiralty.”

What Are Issues Specific to Web 2.0?

FACEBOOK

• Lawyers must conduct themselves as they would in any other setting.

• Philadelphia Bar Association—A lawyer having his assistant “friend” a hostile witness through Facebook in order to conduct witness research without revealing purpose of the request is prohibited.

• Bar Association of the City of New York—A lawyer may not attempt to gain access to a social networking website under false pretenses, either directly or through an agent.

• Texas—Lawyer complaints about judges that are posted on Facebook may be improper.

LinkedIn

• Be cautious regarding specialties. • Recommendation feature may violate rules

concerning testimonials or endorsement of a lawyer and regarding statements or opinions regarding the quality of the legal services.

• Information sharing may constitute giving legal advice.

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.

• Solicitation via real-time electronic contact.

BLOGS AND MESSAGE BOARDS

• Blogs may be considered legal advertising under the RPC.

• As with Twitter, you need to be sensitive about what is posted.– Consider disabling the comment feature so that a

dialogue is not established.• Consider including a disclaimer.

How Do I Begin?

A Few Things To Consider

Why you are doing it Creating sharp lines between mediums Maintaining your presence Ethical Fundamentals Privacy Concerns Disclaimers

Privacy

Disclaimers

American Bar Association• Formal Opinion 10-457 on Lawyer Websites• “Warnings or cautionary statements on a lawyer’s website

can be designed to and may effectively limit, condition or disclaim a lawyer’s obligation to a website reader.”– Such limitations must be reasonably understandable,

properly placed and not misleading.– Must provide a clear warning in a conspicuous place, in a

readable format understandable by a reasonable person.– The limitation can be undercut if the lawyer acts or

communicates contrary to the disclaimer.

Ethical Considerations When Ethical Considerations When Using Social MediaUsing Social Media

Kimberly C. MetzgerIce Miller LLPJames Dimos

Frost Brown Todd LLC