ethical issues in social media rowe 2014 cle

8/10/2019 Ethical Issues in Social Media Rowe 2014 CLE

http://slidepdf.com/reader/full/ethical-issues-in-social-media-rowe-2014-cle 1/19

Ethical Issues in Social Media

Brian Rowe, Esquire

Brian Rowe is a professor and technologist working at Northwest Justice Project, managing the National

Technology Assistance Project and teaching at the University of Washington and Seattle University. He is

also the President of the Board for Washington Lawyers for the Arts. Brian teaches as an adjunct in the

areas of Privacy law, Ethics, Copyright and Information Policy.

Brian has worked for Creative Commons, Public Knowledge, the Washington State Access to Justice

Board, Microsoft, Wizards of the Coast, and Disability Rights Washington. He is also a social media

expert with a modest YouTube following and twitter @sarterus. Brian has 10 years of experience

working with non-profits and social media.

Brian has a background in Information technology and law. Brian holds a B.S. in Informatics and a B.A. in

Political Science, both for the University of Washington and a J.D. for Seattle University. And was the

winner of the 2009 WSBA IP Section Scholarship Award and a Google Public Policy Fellowship.

This packet is licensed under a CC-BY License – Brian Rowe @ Northwest Justice Project

These Materials build on the work of Nicole I. Hylaned of FrankFurk Kurnit Klein & Selz and Kurt M.

Bulmer and are used under fair use

November 20th

, 2014

http://nwjustice.org/



https://www.lsntap.org/




http://thewla.org/

http://thewla.org/

http://thewla.org/

http://thewla.org/






ArticlesSocial Media, Ethics, and “Expertise”: What’s a Lawyer to Do?

10 Tips for Avoiding Ethical Lapses When Using Social Media

Lawyers may look at what jurors post online, but only if it's available to the public

Ethic Opinion WSBA Cloud Computing 2215

RPC Covered include:RPC 1.1 - Competence

RPC 1.6 - Confidentiality RulesRPC 1.18 - Duties to Prospective ClientsRPC 4.2 - Communication with Persons represented by CounselRPC 4.3 - Dealing with Unrepresented PersonRPC 4.4 4.4 - Respect for the Rights of Third Persons

RPC 7.1, 7.2, 7.3, 7.4 - Advertising rules

Useful Links

HTTPS Everywhere - eff.org/https-everywhere

Social Media Guidelines - New York State Bar Association -

nysba.org/Sections/Commercial_Federal_Litigation/Com_Fed_PDFs/Social_Media_E

thics_Guidelines.html

Other AttachmentSlides Rowe

Ethic Guidelines NYSBA

Rowe Twitter Anti-slapp

http://mcle.mywsba.org/IO/print.aspx?ID=1662



https://www.eff.org/https-everywhere


https://www.nysba.org/Sections/Commercial_Federal_Litigation/Com_Fed_PDFs/Social_Media_Ethics_Guidelines.html







Social Media, Ethics, and “Expertise”: What’s a Lawyer to

Do?

By Nicole Black

The good news? Lawyers are finally beginning to understand the impact of social media and

many have begun to interact on a variety of social networks. The bad news? Legal ethics

committees across the country have noticed this influx and have issued conflicting, and

sometimes confusing, opinions regarding the ethical issues presented when lawyers interactonline.

LinkedIn: An Unintended Ethical Minefield

For many lawyers, LinkedIn seems to be the “safest” site with which to test the social media

waters, in large part because LinkedIn holds itself out as the “professional” social networ k, an

idea that many lawyers find appealing.

Not surprisingly, LinkedIn is the most popular social media site among lawyers. In fact,

according to the American Bar Association’s 2013 Legal Technology Survey, more than 98

percent of individual lawyers who responded to the survey reported that they use LinkedIn.

Interestingly, even though LinkedIn is used primarily for professional networking, it nevertheless

presents a number of potential ethical pitfalls for lawyers. For example, for years, many

speculated that the now-defunct (on individual profiles) “Specialties” field that was included bydefault on LinkedIn profiles was problematic since it arguably violated the ethical rules which

prohibit lawyers from stating an area of specialization for which they were not certified.

That issue became moot in March 2012 when the “Specialties” designation was replaced on

individual profiles, but not on “Company Pages,” with the new term “Skills and Expertise.” But,

as you will soon see, according to some ethics committees, even that terminology has the potential to be problematic, since it can arguably be misleading to legal consumers.

Philadelphia Bar on “Skills and Expertise”

The first ethics committee to address this issue was the Professional Guidance Committee of the

Philadelphia Bar Association in Opinion 2012-8. The committee was tasked with determiningwhether an attorney could ethically list his or her areas of practice in the “Skills and Expertise”

section” and if so, could the attorney also use the proficiency categories under the “Sk ills andExpertise” section, which permit the lawyer to indicate the level of skill proficiency as a beginner, intermediate, advanced or expert.

The committee concluded that a lawyer may list practice areas under the LinkedIn heading“Skills and Expertise” since doing so is akin to listing practice areas on law firm websites.

However, the committee reached a different decision regarding the sub-categories of that section

that permit the LinkedIn user to indicate that he or she is an “expert” in a particular practice area.

http://www.americanbar.org/content/newsletter/publications/law_practice_today_home/lpt-archives/november13/social-media-ethics-and-expertise.html#author


http://www.philadelphiabar.org/WebObjects/PBAReadOnly.woa/Contents/WebServerResources/CMSResources/Opinion2012-8Final.pdf







The Committee advised that doing so could mislead a potential client in violation of Rules 7.1

and 7.4 to believe that the lawyer was a “specialist” in that area. Thus the Committee concluded

that “while the inquirer may list her practice area under the general category of “Skills andExpertise” ... the inquirer may not categorize herself as expert or as an “expert” or for that matter

“experienced” outside of the parameters of Rule 7.4...”

New York Bar on “Specialties”

The New York State Bar Association Committee on Professional Ethics addressed a similar issuein June 2013 in Opinion 972. Interestingly, in this opinion, the committee considered whether a

lawyer or law firm could list areas of practice under the “Specialties” category -- which no

longer appears on individual profiles but can still be found on “Company Pages.”

The committee concluded that only individual lawyers certified as specialists in an area of

practice could list those areas of practice under the “Specialties” heading, assuming thedisclaimer provisions of Rule 7.4(c) were met. Of course, since that category was removed from

individual lawyer’s profile pages over a year before this opinion was issued, this particularconclusion is essentially meaningless.

The committee also concluded that non-certified lawyers and law firms could not list areas of

practice under the “Specialties” heading. Again, while this holding is moot for individuallawyers, it does provide guidance for law firms that have set up “Company Pages” and clarifiesthat areas of practice cannot be listed under “Specialties.”

Another interesting issue raised in this opinion, but which the committee declined to address,was whether Rule 7.4 would be violated if “a lawyer or law firm could, consistent with Rule

7.4(a), list practice areas under other headings such as ‘Products & Services’ or ‘Skills and

Expertise.’”

So, while the ethics of doing so remains up in the air in New York, lawyers and law firms in all jurisdictions would be wise to think twice before listing their areas of practice under those

sections of their LinkedIn profiles. This is because even though doing so passes muster in

Philadelphia, as you will see below, the Florida Bar recently reached a contrary decision.

Florida Bar on “Skills and Expertise”

The Florida Bar has addressed the permissibility of listing practice areas under the “Skills andExpertise” category on two occasions.

First, in April 2013, the Florida Bar issued social media advertising guidelines for its attorneys.

The guidelines addressed a number of ethical issues that can arise when lawyers interact on

social media sites, including the issues surrounding categorizations on sites that might imply“expertise” in an area of law to legal consumers. In that regard, the guidelines emphasize that

lawyers have an obligation to avoid misleading the public: “Regulations include prohibitions

against any misleading information, which includes references to past results that are not

http://www.nysba.org/CustomTemplates/Content.aspx?id=28101



http://www.floridabar.org/TFB/TFBResources.nsf/Attachments/18BC39758BB54A5985257B590063EDA8/$FILE/Guidelines%20-%20Social%20Networking%20Sites.pdf?OpenElement







objectively verifiable, predictions or guaranties of results, and testimonials that fail to comply

with the requirements listed in Rule 4-7.13(b)(8).

Regulations also include prohibitions against statements characterizing skills, experience,

reputation or record unless they are objectively verifiable. Lawyers and law firms should review

the lawyer advertising rules in their entirety to comply with their requirements.”

This same issue was addressed by the Florida Bar just a few months later, with the issuance of a

September 11 advisory advertising opinion. In this opinion, the committee reached a decisionthat was contrary to the Philadelphia decision discussed above, concluding that lawyers who are

not certified in a practice area “may not list areas of practice under the header ‘Skills &

Expertise’ even if it was noted elsewhere on their LinkedIn profiles that they are neither certified

nor an ‘expert.’”

Of course, the Florida Bar tends to issue the most restrictive opinions when it comes to lawyers’social media interactions, so lawyers in other jurisdictions should keep that in mind and avoid

blindly following the Florida Bar’s determination. Nevertheless, these opinions are instructiveand indicate that lawyers should proceed with caution, and carefully consider their jurisdiction’s

past holdings regarding listing skills, expertise, and specialties, whether on or offline.

In other words, let someone else be the test case. After all, it’s better to be safe than sorry!

About the Author

Nicole Black is an attorney and a director at MyCase, a cloud-based law practice management platform. She can be reached at [email protected].

http://www.americanbar.org/content/newsletter/publications/law_practice_today_home/lpt-

archives/november13/social-media-ethics-and-expertise.html

http://it-lex.org/wp-content/uploads/2013/09/Florida-Bar-Opinion-re-LinkedIn-Redacted.pdf



mailto:[email protected]







10 Tips for Avoiding Ethical Lapses When Using Social

Media

Christina Vassiliou Harvey, Mac R. McCoy, Brook Sneath

About the Authors:

Christina Vassiliou Harvey is an associate at Lomurro Davison Eastman & Muñoz PA in

Freehold, New Jersey. Mac R. McCoy is a shareholder at Carlton Fields Jorden Burt, P.A. in

Tampa, Florida. Brook Sneath is a business development and marketing coordinator at PhelpsDunbar LLP in Tampa, Florida.

You may be among the thousands of legal professionals flocking to social media sites like

LinkedIn, Facebook , Twitter , or Google+ to expand your professional presence in the emergingdigital frontier. If so, have you paused to consider how the ethics rules apply to your online

activities? You should. Some of the ethical constraints that apply to your social media usage as alegal professional may surprise you. Moreover, legal ethics regulators across the country are beginning to pay close attention to what legal professionals are doing with social media, how

they are doing it, and why they are doing it. The result is a patchwork quilt of ethics opinions and

rule changes intended to clarify how the rules of professional conduct apply to social mediaactivities.

This article provides 10 tips for avoiding ethical lapses while using social media as a legal

professional. The authors cite primarily to the ABA Model Rules of Professional Conduct (RPC)and select ethics opinions from various states. In addition to considering the general information

in this article, you should carefully review the ethics rules and ethics opinions adopted by the

specific jurisdiction(s) in which you are licensed and in which your law firm maintains anoffice.

1. Social Media Profiles and Posts May Constitute Legal Advertising

Many lawyers – including judges and in-house counsel – may not think of their social media profiles and posts as constituting legal advertisements. After all, legal advertising is limited to

glossy brochures, highway billboards, bus benches, late-night television commercials, and the

back of the phonebook, right? Wrong. In many jurisdictions, lawyer and law firm websites are

deemed to be advertisements. Because social media profiles (including blogs, Facebook pages,and LinkedIn profiles) are by their nature websites, they too may constitute advertisements.

For example, the Florida Supreme Court recently overhauled that state’s advertising rules tomake clear that lawyer and law firm websites (including social networking and video sharing

sites) are subject to many of the restrictions applicable to other traditional forms of lawyer

advertising. Similarly, California Ethics Opinion 2012-186 concluded that the lawyer advertisingrules in that state applied to social media posts, depending on the nature of the posted statement

or content.

http://www.lomurrolaw.com/attorneys/9/christina-harvey


http://www.cfjblaw.com/mmccoy



http://www.linkedin.com/


http://www.facebook.com/



https://twitter.com/



http://www.google.com/+



http://www.floridasupremecourt.org/decisions/2013/sc11-1327.pdf



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http://ethics.calbar.ca.gov/Portals/9/documents/Opinions/CAL%202012-186%20%2812-21-12%29.pdf















2. Avoid Making False or Misleading Statements

The ethical prohibition against making false or misleading statements pervades many of theABA Model Rules, including RPC 4.1 (Truthfulness in Statements to Others), 4.3 (Dealing with

Unrepresented Person), 4.4 (Respect for Rights of Third Persons), 7.1 (Communication

Concerning a Lawyer's Services), 7.4 (Communication of Fields of Practice and Specialization),and 8.4 (Misconduct), as well as the analogous state ethics rules. ABA Formal Opinion 10-457

concluded that lawyer websites must comply with the ABA Model Rules that prohibit false or

misleading statements. The same obligation extends to social media websites.

South Carolina Ethics Opinion 12-03, for example, concluded that lawyers may not participate in

websites designed to allow non-lawyer users to post legal questions where the website describes

the attorneys answering those questions as “experts.” Similarly, New York State Ethics Opinion972 concluded that a lawyer may not list his or her practice areas under the heading “specialties”

on a social media site unless the lawyer is appropriately certified as a specialist – and law firms

may not do so at all.

Although most legal professionals are already appropriately sensitive to these restrictions, some

social media activities may nevertheless give rise to unanticipated ethical lapses. A commonexample occurs when a lawyer creates a social media account and completes a profile without

realizing that the social media platform will brand the lawyer to the public as an “expert” or a

“specialist” or as having legal “expertise” or “specialties.” Under RPC 7.4 and equivalent stateethics rules, lawyers are generally prohibited from claiming to be a “specialist” in the law. The

ethics rules in many states extend this restriction to use of terms like “expert” or “expertise.”

Nevertheless, many professional social networking platforms (e.g., LinkedIn and Avvo) may

invite lawyers to identify “specialties” or “expertise” in their profiles, or the sites may by defaultidentify and actively promote a lawyer to other users as an “expert” or “specialist” in the law.

This is problematic because the lawyer completing his or her profile cannot always remove oravoid these labels.

3. Avoid Making Prohibited Solicitations

Solicitations by a lawyer or a law firm offering to provide legal services and motivated by

pecuniary gain are restricted under RPC 7.3 and equivalent state ethics rules. Some, but not all,state analogues recognize limited exceptions for communications to other lawyers, family

members, close personal friends, persons with whom the lawyer has a prior professional

relationship, and/or persons who have specifically requested information from the lawyer.

By its very design, social media allows users to communicate with each other or the public at-

large through one or more means. The rules prohibiting solicitations force legal professionals to

evaluate – before sending any public or private social media communication to any other user – whom the intended recipient is and why the lawyer or law firm is communicating with that

particular person. For example, a Facebook “friend request” or LinkedIn “invitation” that offers

to provide legal services to a non-lawyer with whom the sending lawyer does not have anexisting relationship may very well rise to the level of a prohibited solicitation.

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http://www.scbar.org/MemberResources/EthicsAdvisoryOpinions/OpinionView/ArticleId/1211/Ethics-Advisory-Opinion-12-03.aspx












Legal professionals may also unintentionally send prohibited solicitations merely by using

certain automatic features of some social media sites that are designed to facilitate convenient

connections between users. For instance, LinkedIn provides an option to import e-mail address books to LinkedIn for purposes of sending automatic or batch invitations. This may seem like an

efficient option to minimize the time required to locate and connect with everyone you know on

LinkedIn. However, sending automatic or batch invitations to everyone identified in your e-mailaddress book could result in networking invitations being sent to persons who are not lawyers,family members, close personal friends, current or former clients, or others with whom a lawyer

may ethically communicate. Moreover, if these recipients do not accept the initial networking

invitation, LinkedIn will automatically send two follow up reminders unless the initial invitationis affirmatively withdrawn. Each such reminder would conceivably constitute a separate

violation of the rules prohibiting solicitations.

4. Do Not Disclose Privileged or Confidential Information

Social media also creates a potential risk of disclosing (inadvertently or otherwise) privileged or

confidential information, including the identities of current or former clients. The duty to protect privileged and confidential client information extends to current clients (RPC 1.6), former clients

(RPC 1.9), and prospective clients (RPC 1.18). Consistent with these rules, ABA FormalOpinion 10-457 provides that lawyers must obtain client consent before posting information

about clients on websites. In a content-driven environment like social media where users are

accustomed to casually commenting on day-to-day activities, including work-related activities,

lawyers must be especially careful to avoid posting any information that could conceivablyviolate confidentiality obligations. This includes the casual use of geo-tagging in social media

posts or photos that may inadvertently reveal your geographic location when traveling on

confidential client business.

There are a few examples of lawyers who found themselves in ethical crosshairs after postingclient information online. For example, in In re Skinner , 740 S.E.2d 171 (Ga. 2013), the GeorgiaSupreme Court rejected a petition for voluntary reprimand (the mildest form of public discipline

permitted under that state’s rules) where a lawyer admitted to disclosing information online

about a former client in response to negative reviews on consumer websites. In a more extremeexample, the Illinois Supreme Court in In re Peshek , M.R. 23794 (Ill. May 18, 2010) suspended

an assistant public defender from practice for 60 days for, among other things, blogging about

clients and implying in at least one such post that a client may have committed perjury. The

Wisconsin Supreme Court imposed reciprocal discipline on the same attorney for the samemisconduct. In re Disciplinary Proceedings Against Peshek , 798 N.W.2d 879 (Wis. 2011).

Interestingly, the Virginia Supreme Court held in Hunter v. Virginia State Bar , 744 S.E.2d 611(Va. 2013), that confidentiality obligations have limits when weighed against a lawyer’s First

Amendment protections. Specifically, the court held that although a lawyer’s blog posts were

commercial speech, the Virginia State Bar could not prohibit the lawyer from posting non-

privileged information about clients and former clients without the clients’ consent where (1) theinformation related to closed cases and (2) the information was publicly available from court

records and, therefore, the lawyer was free, like any other citizen, to disclose what actually

transpired in the courtroom.





http://www.state.il.us/court/SupremeCourt/Announce/2010/051810.pdf



http://iln.isba.org/2010/05/18/illinois-supreme-court-disbars-12-suspends-26











5. Do Not Assume You Can “Friend” Judges

In the offline world, it is inevitable that lawyers and judges will meet, network, and sometimeseven become personal friends. These real-world professional and personal relationships are, of

course, subject to ethical constraints. So, too, are online interactions between lawyers and judges

through social media (e.g., becoming Facebook “friends” or LinkedIn connections) subject toethical constraints.

Different jurisdictions have adopted different standards for judges to follow. ABA FormalOpinion 462 recently concluded that a judge may participate in online social networking, but in

doing so must comply with the Code of Judicial Conduct and consider his or her ethical

obligations on a case-by-case (and connection-by-connection) basis. Several states have adopted

similar views, including Connecticut (Op. 2013-06), Kentucky (Op. JE-119), Maryland (Op.2012-07), New York (Op. 13-39, 08-176), Ohio (Op. 2010-7), South Carolina (Op. 17-2009),

and Tennessee (Op. 12-01).

In contrast, states like California (Op. 66), Florida, Massachusetts (Op. 2011-6), and Oklahoma(Op. 2011-3) have adopted a more restrictive view. Florida Ethics Opinion 2009-20, for

example, concluded that a judge cannot friend lawyers on Facebook who may appear before the judge because doing so suggests that the lawyer is in a special position to influence the judge.

Florida Ethics Opinion 2012-12 subsequently extended the same rationale to judges using

LinkedIn and the more recent Opinion 2013-14 further cautioned judges about the risks of usingTwitter. Consistent with these ethics opinions, a Florida court held that a trial judge presiding

over a criminal case was required to recuse himself because the judge was Facebook friends with

the prosecutor. See Domville v. State, 103 So. 3d 184 (Fla. 4th DCA 2012).

6. Avoid Communications with Represented Parties

Under RPC 4.2 and equivalent state ethics rules, a lawyer is forbidden from communicating with

a person whom the lawyer knows to be represented by counsel without first obtaining consent

from the r epresented person’s lawyer. Under RPC 8.4(a) and similar state rules, this prohibitionextends to any agents (secretaries, paralegals, private investigators, etc.) who may act on the

lawyer’s behalf.

These bright-line restrictions effectively prohibit lawyers and their agents from engaging in

social media communications with persons whom the lawyer knows to be represented by

counsel. This means that a lawyer may not send Facebook friend requests or LinkedIn invitations

to opposing parties known to be represented by counsel in order to gain access to those parties’ private social media content. In the corporate context, San Diego County Bar Association

Opinion 2011-2 concluded that high-ranking employees of a corporation should be treated as

represented parties and, therefore, a lawyer could not send a Facebook friend request to thoseemployees to gain access to their Facebook content.

On the other hand, viewing publicly accessible social media content that does not precipitatecommunication with a represented party (e.g., viewing public blog posts or Tweets) is generally

considered fair game. That was the conclusion reached by Oregon Ethics Opinions 2013-189 and

http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/formal_opinion_462.authcheckdam.pdf




http://www.jud.ct.gov/Committees/ethics/sum/2013-06.htm



http://courts.ky.gov/commissionscommittees/JEC/JEC_Opinions/JE_119.pdf



http://www.courts.state.md.us/ethics/pdfs/2012-07.pdf




http://www.nycourts.gov/ip/judicialethics/opinions/13-39.htm



http://www.courts.state.ny.us/ip/judicialethics/opinions/08-176.htm



http://www.supremecourt.ohio.gov/Boards/BOC/Advisory_Opinions/2010/Op_10-007.doc



http://www.judicial.state.sc.us/advisoryOpinions/displayadvopin.cfm?advOpinNo=17-2009



http://www.tncourts.gov/sites/default/files/docs/advisory_opinion_12-01.pdf



http://www.caljudges.org/files/pdf/Opinion%2066FinalShort.pdf



http://www.mass.gov/courts/sjc/cje/2011-6n.html



http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=464147



http://www.jud6.org/legalcommunity/legalpractice/opinions/jeacopinions/2009/2009-20.html








http://www.4dca.org/opinions/Sept%202012/09-05-12/4D12-556.op.pdf



https://www.sdcba.org/index.cfm?pg=LEC2011-2




http://www.osbar.org/ethics/toc.html


























2005-164, which analogized viewing public social media content to reading a magazine article or

a published book.

7. Be Cautious When Communicating with Unrepresented Third Parties

Underlying RPC 3.4 (Fairness to Opposing Party and Counsel), 4.1 (Truthfulness in Statementsto Others), 4.3 (Dealing with Unrepresented Person), 4.4 (Respect for Rights of Third Persons),

and 8.4 (Misconduct), and similar state ethics rules is concern for protecting third parties against

abusive lawyer conduct. In a social media context, these rules require lawyers to be cautious inonline interactions with unrepresented third parties. Issues commonly arise when lawyers use

social media to obtain information from third-party witnesses that may be useful in a litigation

matter. As with represented parties, publicly viewable social media content is generally fair

game. If, however, the information sought is safely nestled behind the third party’s privacysettings, ethical constraints may limit the lawyer’s options for obtaining it.

Of the jurisdictions that have addressed this issue, the consensus appears to be that a lawyer may

not attempt to gain access to non-public social media content by using subterfuge, trickery,dishonesty, deception, pretext, false pretenses, or an alias. For example, ethics opinions in

Oregon (Op. 2013-189), Kentucky (Op. KBA E-434), New York State (Op. 843), and New YorkCity (Op. 2010-2) concluded that lawyers are not permitted (either themselves or through agents)

to engage in false or deceptive tactics to circumvent social media users’ privacy settings to reach

non-public information. Ethics opinions by other bar associations, including the Philadelphia BarAssociation (Op. 2009-02) and the San Diego County Bar Association (Op. 2011-2), have gone

one step further and concluded that lawyers must affirmatively disclose their reasons for

communicating with the third party.

8. Beware of Inadvertently Creating Attorney-Client Relationships

An attorney-client relationship may be formed through electronic communications, including

social media communications. ABA Formal Opinion 10-457 recognized that by enabling

communications between prospective clients and lawyers, websites may give rise to inadvertentlawyer-client relationships and trigger ethical obligations to prospective clients under RPC 1.18.

The interactive nature of social media (e.g., inviting and responding to comments to a blog post,

engaging in Twitter conversations, or responding to legal questions posted by users on a message board or a law firm’s Facebook page) creates a real risk of inadvertently forming attorney-client

relationships with non-lawyers, especially when the objective purpose of the communication

from the consumer’s perspective is to consult with the lawyer about the possibility of forming a

lawyer-client relationship regarding a specific matter or legal need. Of course, if an attorney-client relationship attaches, so, too, do the attendant obligations to maintain the confidentiality of

client information and to avoid conflicts of interest.

Depending upon the ethics rules in the jurisdiction(s) where the communication takes place, use

of appropriate disclaimers in a lawyer’s or a law firm’s social media profile or in connection with

specific posts may help avoid inadvertently creating attorney-client relationships, so long as thelawyer’s or law firm’s online conduct is consistent with the disclaimer. In that respect, South

Carolina Ethics Opinion 12-03 concluded that “[a]ttempting to disclaim (through buried






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language) an attorney-client relationship in advance of providing specific legal advice in a

specific matter, and using similarly buried language to advise against reliance on the advice is

patently unfair and misleading to laypersons.”

9. Beware of Potential Unauthorized Practice Violations

A public social media post (like a public Tweet) knows no geographic boundaries. Public social

media content is accessible to everyone on the planet who has an Internet connection. If legal

professionals elect to interact with non-lawyer social media users, then they must be mindful thattheir activities may be subject not only to the ethics rules of the jurisdictions in which they are

licensed, but also potentially the ethics rules in any jurisdiction where the recipient(s) of any

communication is(are) located. Under RPC 5.5 and similar state ethics rules, lawyers are not

permitted to practice law in jurisdictions where they are not admitted to practice. Moreover,under RPC 8.5 and analogous state rules, a lawyer may be disciplined in any jurisdiction where

he or she is admitted to practice (irrespective of where the conduct at issue takes place) or in any

jurisdiction where he or she provides or offers to provide legal services. It is prudent, therefore,

for lawyers to avoid online activities that could be construed as the unauthorized practice of lawin any jurisdiction(s) where the lawyer is not admitted to practice.

10. Tread Cautiously with Testimonials, Endorsements, and Ratings

Many social media platforms like LinkedIn and Avvo heavily promote the use of testimonials,endorsements, and ratings (either by peers or consumers). These features are typically designed

by social media companies with one-size-fits-all functionality and little or no attention given to

variations in state ethics rules. Some jurisdictions prohibit or severely restrict lawyers’ use oftestimonials and endorsements. They may also require testimonials and endorsements to be

accompanied by specific disclaimers. South Carolina Ethics Opinion 09-10, for example,

provides that (1) lawyers cannot solicit or allow publication of testimonials on websites and (2)lawyers cannot solicit or allow publication of endorsements unless presented in a way that wouldnot be misleading or likely to create unjustified expectations. The opinion also concluded that

lawyers who claim their profiles on social media sites like LinkedIn and Avvo (which include

functions for endorsements, testimonials, and ratings) are responsible for conforming all of theinformation on their profiles to the ethics rules.

Lawyers must, therefore, pay careful attention to whether their use of any endorsement,

testimonial, or rating features of a social networking site is capable of complying with the ethics

rules that apply in the state(s) where they are licensed. If not, then the lawyer may have no

choice but to remove that content from his or her profile.

Conclusion

Despite the risks associated with using social media as a legal professional, the unprecedented

opportunities this revolutionary technology brings to the legal profession to, among other things,

promote greater competency, foster community, and educate the public about the law and theavailability of legal services justify the effort necessary to learn how to use the technology in an

ethical manner. E-mail technology likely had its early detractors and, yet, virtually all lawyers







are now highly dependent on e-mail in their daily law practice. Ten years from now, we may

similarly view social media as an essential tool for the practice of law.

http://www.americanbar.org/publications/blt/2014/01/03_harvey.html






Lawyers may look at what jurors post online, but only if it's available to

the public

Posted Jul 01, 2014 08:40 am CDT

By Terry Carter

Illustration by Tim Marrs

Courts have been dealing for a while now with jurors discussing the trials they’re decidingthrough postings on websites accessible to the public and electronic social media that allowrestrictions on access, such as Facebook, Myspace, LinkedIn and Twitter. Trial judges generally

try to restrict such activities with admonitions in their instructions to the jury.

But as more and more lawyers are looking to websites and social media to learn more about both

sitting jurors and prospective jurors, they, too, need some guidance on just how far they may go.

The ABA Standing Committee on Ethics and Professional Responsibility offered its advice in

Formal Opinion 466 (PDF), issued April 24. Formal opinions are based on the ABA Model

Rules of Professional Conduct, which provide the substantive basis for binding rules governinglawyers in every state and the District of Columbia, although the rules in California follow a

different format.

The gist of Formal Opinion 466 is that, within the context of Model Rule 3.5, a lawyer may

review a juror’s or potential juror’s various postings on websites and social media. But the

lawyer should not send jurors or prospective jurors a request for access, either directly orindirectly, to their social media accounts because doing so would amount to a violation of the

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http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/formal_opinion_466_final_04_23_14.authcheckdam.pdf






prohi-bition in Model Rule 3.5(b) against ex parte communications with jurors that are not

authorized by law or court order.

In a footnote, the ethics committee states that it “does not take a position on whether the standard

of care for competent lawyer performance requires using Internet research to locate information

about jurors that is relevant to the jury selection process. We are also mindful of the recentaddition of Comment [8] to Model Rule 1.1. This comment explains that a lawyer ‘should keep

abreast of changes in the law and its practice, including the benefits and risks associated with

relevant technology.’ “

The various types of social media are rapidly moving and morphing targets, which means that

today’s guidelines may be outdated by tomorrow. Ethics opinions traditionally have been cut in

stone, but they now might be etched in warm wax.

“Technology changes so fast it’s always now a game of catch-up,” says Donald R. Lundberg, a partner and deputy general counsel at Barnes & Thornburg in Indianapolis who is a member of

the ethics committee. “We tried to keep it generic enough to be useful for a while.”

DRIVE-BY VIEWING

Formal Opinion 466 addresses three levels of lawyer review of a juror’s Internet footprints:

• Passive review of a juror’s website or social media profile that is available without making an

access request, and is done without the juror’s knowledge. The opinion states that the “mere actof observing” is not improper ex parte conduct, comparing it to driving down the juror’s street to

get a sense of the neighborhood.

• The lawyer requests access to the juror’s social media account, which the opinion describes asan active review. The opinion concludes that such a request amounts to ex parte communication

prohibited by Model Rule 3.5(b), much like stopping the car to ask the juror’s permission to lookinside the juror’s house.

• The juror becomes aware through a notification feature of the social media or website that the

lawyer has conducted a passive review of the juror’s publicly available infor -mation. The

opinion states that the social media entity, not the lawyer, is communicating with the juror, just

as if a neighbor told the juror that the lawyer drove down the street.

For now, LinkedIn, which focuses on professional networking, is the only form of social media

that automatically notifies users when someone has viewed their profiles. The opinionrecommends that lawyers read each site’s terms of use and be aware that the terms can change

frequently.

In March, the New York State Bar Association reached a different conclusion from ABA Formal

Opinion 466 on what amounts to communication with a juror. The New York bar issued Social

Media Ethics Guidelines stating that automatic, third-party notification to a potential juroramounts to improper, ex parte communication by a lawyer. The state bar’s action followed









similar findings by committees of the New York County Lawyers’ Association and the New

York City Bar Association.

Under Guideline No. 3, a lawyer may view the public portion of a person’s social media profile

or public posts even if that person is represented by another lawyer. But the lawyer must be

aware that certain networks may send an automatic message to the person whose account is being viewed that identifies who is viewing the account as well as other information about the

viewer.

A comment to the guideline states that lawyers should “always use caution when conducting

[jury] research” to ensure that no communication with jurors occurs. Opinions issued by the New

York City and New York County bars state that even inadvertent contact with a prospective or

sitting juror caused by an automatic notice sent by a social media network may be considered atechnical ethical violation. But those opinions have not taken a definitive position that such

unintended automatic contact is subject to discipline.

The ABA ethics committee considered that position but instead concluded that a lawyer whouses a shared electronic social media platform “to passively view juror ESM under these

circumstances does not communicate with the juror. The lawyer is not communicating with the juror; the ESM service is communicating with the juror based on a technical feature” of the site.

The committee added a suggestion for judges to advise jury pools that the lawyers havelegitimate interests in learning more about their backgrounds, and that they likely will be looking

for information about them on the Internet, including social media. “Discussion by the trial judge

of the likely practice of trial lawyers reviewing juror ESM during the jury orientation processwill dispel any juror misperception that a lawyer is acting improperly merely by viewing what

the juror has revealed to all others on the same network,” states Opinion 466.

“Frankly, that was a different twist on a garden-variety ethics opinion,” Lundberg says. “We

went beyond saying ‘This is what the rules would say about that,’ and recommend how judges

might treat social media. They’re already giving them fairly strong warnings aboutcommunicating about the trial on social media, or doing their own independent investigations on

the Internet,” he says.

“That’s a good point,” says Ignatius Grande, a co-chair of the social media committee of the

Commercial and Federal Litigation Section of the New York State Bar Association, which issued

the more restrictive guideline on automated notification. “If judges warn jurors of possible

background checks, and it’s probably being done more often, then it might be somewhat less anissue. I doubt it’s being mentioned in every jury trial, and getting that notification can affect a

juror,” says Grande, an attorney at Hughes Hubbard & Reed in New York City who is the firm’s

director of practice support.

MIXED SIGNALS

ABA Formal Opinion 466 hedges on the issue of a lawyer’s obligation to notify the court when

an Internet search turns up misconduct by a juror and concludes that the history of Model Rule



3.3, which addresses the issue, “is muddled concerning whether a lawyer has an affirmative

obligation to act upon learning that a juror has engaged in improper conduct that falls short of

being criminal or fraudulent.”

The opinion notes that the ABA House of Delegates adopted a recommendation by the Ethics

2000 Commission that amended Model Rule 3.3(b) to direct lawyers to take “reasonableremedial measures, including, if necessary, disclosure to the tribunal” when the lawyer learns

that a juror is engaging, or intends to engage, in criminal or fraudulent conduct. But the

commission, which conducted an extensive review of the Model Rules, had intended that ModelRule 3.3 be revised to also cover lesser wrongdoing —“improper conduct.” But this intent of the

Ethics 2000 Commission “was never carried out,” the ethics committee states in its opinion.

For now, if a lawyer comes across publicly available information about a juror on the Internetthat indicates a violation of court instructions but not criminal or fraudulent actions, applicable

law might trigger the lawyer’s duty to report it to the court under Model Rule 3.3(b).

Formal Opinion 466 reminds lawyers that the recent addition of Comment 8 to Model Rule 1.1says they should keep up with the benefits and risks of technology, which cut both ways: Good

lawyering means using social media, but using it properly.

Even then, it might bite them. Plaintiffs lawyer Spencer Aronfeld of Aronfeld Trial Lawyers inCoral Gables, Florida, used his iPad in a Miami courtroom in 2012 to look at the Facebook pageof a potential juror in a medical-malpractice case concerning amputation after a failed penile

implant. The Internet connection was weak, and Aronfeld repeatedly twisted and turned the

device in various directions for access, at one point unknowingly sending a “friend” request tothe potential juror, who happened also to be a prosecutor — who promptly notified the judge of

the contact.

“The judge was basically reading me my rights and was going to hold me in criminal contempt,”

says Aronfeld, who might as well have argued that a dog ate his homework. But another lawyer

in the courtroom had observed Aronfeld’s gyrations with the iPad and explained to the courtwhat had happened. But, Aronfeld says, “even today I have a hard time laughing about it.”

This article originally appeared in the July 2014 issue of the ABA Journal with this headline:“What You See Is What You Get: Lawyers may look at what jurors post online, but only if it’s

available to the public.”

http://www.americanbar.org/groups/professional_responsibility/policy/ethics_2000_commission.html








2215 2012 RPC 1.1, 1.6, 1.15A


This opinion addresses certain ethical obligations related to the use of online data storage managed by

third party vendors to store confidential client documents.

Illustrative Facts:

Law Firm contracts with third-party vendor to store client files and documents online on remote server

so that Lawyer and Client could access the documents over the Internet from any remote location.

Rules of Professional Conduct Implicated:

RPC 1.1, 1.6, 1.15A

Analysis:

Various service providers are offering data storage systems on remote servers that can be accessed by

subscribers from any location over the Internet. This is one aspect of so-called “cloud computing,” and

lawyers may be interested in using these services to store confidential client documents and other data.

Use of these third party storage systems, however, means that confidential client information is outside

of the direct control of the lawyer and raises particular ethical questions.

Under RPC 1.6, a lawyer owes a client the duty to keep all client information confidential, unless the

information falls within a specified exception. The duty of confidentiality extends beyond deliberate

revelations of client information and requires a lawyer to protect client information against all

disclosure. Comment 16 to RPC 1.6 states: “A lawyer must act competently to safeguard information

relating to the representation of a client against inadvertent or unauthorized disclosure by the lawyer or

other persons who are participating in the representation of the client or who are subject to the

lawyer’s supervision. See Rules 1.1, 5.1 and 5.3.” In order to use online data storage, a lawyer is under a

duty to ensure that the confidentiality of all client data will be maintained.

In addition to client confidentiality, the lawyer is also under a duty to protect client property, under RPC

1.15A. A lawyer using online data storage of client documents is therefore under a duty to ensure that

the documents will not be lost.

It is impossible to give specific guidelines as to what security measures should be in place with a third

party service provider of online data storage in order to provide adequate protection of client material,

because the technology is changing too rapidly and any such advice would be quickly out of date. It is

also impractical to expect every lawyer who uses such services to be able to understand the technology

sufficiently in order to evaluate a particular service provider’s security systems. A lawyer using such a






service must, however, conduct a due diligence investigation of the provider and its services and cannot

rely on lack of technological sophistication to excuse the failure to do so. While some lawyers may be

able to do more thorough evaluations of the services available, best practices for a lawyer without

advanced technological knowledge could include:

1. Familiarization with the potential risks of online data storage and review of available general audience

literature and literature directed at the legal profession, on cloud computing industry standards and

desirable features.

2. Evaluation of the provider’s practices, reputation and history.

3. Comparison of provisions in service provider agreements to the extent that the service provider

recognizes the lawyer’s duty of confidentiality and agrees to handle the information accordingly.

4. Comparison of provisions in service provider agreements to the extent that the agreement gives the

lawyer methods for retrieving the data if the agreement is terminated or the service provider goes out

of business.

5. Confirming provisions in the agreement that will give the lawyer prompt notice of any nonauthorized

access to the lawyer’s stored data.

6. Ensure secure and tightly controlled access to the storage system maintained by the service provider.

7. Ensure reasonable measures for secure backup of the data that is maintained by the service provider.

A lawyer has a general duty of competence under RPC 1.1, which includes the duty “to keep abreast of

changes in the law and its practice.” RPC 1.1 Comment 6. To the extent that a lawyer uses technology in

his or her practice, the lawyer has a duty to keep informed about the risks associated with that

technology and to take reasonable precautions. The lawyer’s duties discussed in this opinion do not rise

to the level of a guarantee by the lawyer that the information is secure from all unauthorized access.

Security breaches are possible even in the physical world, and a lawyer has always been under a duty to

make reasonable judgments when protecting client property and information. Specific practices

regarding protection of client property and information have always been left up to individual lawyers’

judgment, and that same approach applies to the use of online data storage. The lawyer must take

reasonable steps, however, to evaluate the risks involved with that practice and to ensure that steps

taken to protect the information are up to a reasonable standard of care.

Because the technology changes rapidly, and the security threats evolve equally rapidly, a lawyer using

online data storage must not only perform initial due diligence when selecting a provider and entering

into an agreement, but must also monitor and regularly review the security measures of the provider.

Over time, a particular provider’s security may become obsolete or become substandard to systems

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