ethical risks of attorney social media activity...

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Presenting a live 90-minute webinar with interactive Q&A

Ethical Risks of Attorney Social Media Activity:

Navigating the Dangers of LinkedIn, Twitter, Facebook, Blogs Avoiding Inadvertent Attorney Advertising and Client Relationships,

Disclosure of Privileged Information and Damage to Reputation

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

WEDNESDAY, OCTOBER 7, 2015

Travis Crabtree, Member, Gray Reed & McGraw, Houston

Karen Lee Lust, Esq., Reed Smith, Washington, D.C.

Linda V. Priebe, Partner, Culhane Meadows, Washington, D.C.

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Travis Crabtree

Gray Reed & McGraw

[email protected]

Ethical Risks of Attorney Social Media Activity

Commercial speech is generally defined as speech designed to “propose a commercial transaction” or speech “related solely to the economic interests of the speaker and its audience.”

REGULATED ADVERTISING OR FREE SPEECH?

CITED CASES

•Texans Against Censorship, Inc. v. State Bar of Texas, 888

F.Supp. 1328, 1342 (E.D. Tex. 1995)

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JIM ADLER & ASSOCIATES

TELL YOUR FRIENDS ABOUT US. No one expects them, but

accidents do happen. If someone you know has been injured, we

can help. At the Law Offices of Jim S. Adler, we’ve helped

thousands of people get compensated for their injuries. Please give

our toll free number to someone who needs our services…We

thank you for your past support and are ready to help to help you

again.

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http://www.jimadler.com/

GREATWOOD HOMEOWNERS

A meeting of interested homeowners will be held … to discuss the

structural problems of houses in your neighborhood, including

foundation problems, which were built by VILLAGE BUILDERS.

All Greatwood homeowners are invited to attend the [sic] exchange

information with your neighbors concerning structural problems to

your houses.

CITED CASES

•George R. Neely v. Comm’n, 196 S.W.3d 174, 184 (Tex. 2006)

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THE TEXAS DISCIPLINARY RULES OF PROFESSIONAL CONDUCT

Part VII of the “Rules” deals with “Information about Legal Services” - in other words, advertising. Courts have determined that Part VII only applies to commercial speech.

CITED CASES

•Texas Against Censorship, 888 F.Supp @ 1342-43

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TO FILE OR NOT TO FILE?

The first step when dealing with online communications is to determine whether your online materials need to be submitted to the State Bar’s Advertising Review Committee.

.

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http://www.texasbar.com/Template.cfm?Section=For_Attorneys&CONTENTID=23680&TEMPLATE=/ContentManagement/ContentDisplay.cfm

DOMAIN NAMES

Trade Names for Domain Names Acceptable, But Can’t Otherwise Violate the

Rules -- www.dwibadass.com

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http://www.dwibadass.com/

WEB VIDEOS AND PODCASTS

Any lawyer who advertises in the public media through an “infomercial or comparable presentation, state that the presentation is an advertisement: both verbally and in writing.”

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http://lrmlawblog.com/distressedassets/category/podcasts/

http://lrmlawblog.com/distressedassets/category/podcasts/

SOCIAL MEDIA

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BLOGGING

Used by many lawyers to comment on current events and developments in the law.

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BLOGGING

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http://www.dallasfortworthinjurylawyer.com/2008/12/ambulance_and_car_accident_in.html

http://patterico.com/2009/03/04/kathy-kelly-retracts/

BLOGGING

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BLOGGING

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http://www.law.com/jsp/law/LawArticleFriendly.jsp?id=900005548887

BLOGGING

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CHAT ROOMS

The same rules apply to message boards as they would if there was a cocktail party for book lovers.

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POSTING VIDEO DEPOSITIONS ON YOUTUBE

New trends come and go faster than the State Bar could ever implement rules to apply to them.

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http://www.law.com/jsp/tx/PubArticleTX.jsp?id=1202426514966

SOCIAL MEDIA

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http://www.loweringthebar.net/2009/03/motion-for-new-trial-based-on-jurors-twittering.html

http://blog.internetcases.com/2009/03/17/facebook-message-was-not-witness-tampering/

SOCIAL MEDIA

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SOCIAL MEDIA

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SOCIAL MEDIA

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SOCIAL MEDIA

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SOCIAL MEDIA

RULE 7.01

Rule 7.01 Firm Names and Letterheads (a) A lawyer in private practice shall not practice under a trade name, a name that is misleading as to the identity of the lawyer or lawyers practicing under such name, or afirm name containing names other than those of one or more of the lawyers in the firm, except that the names of a professional corporation, professional association, limited liability partnership, or professional limited liability company may contain "P.C.," "P.A.," "L.L.P.," "P.L.L.C.," or similar symbols indicating the nature of the organization, and if otherwise lawful a firm may use as, or continue to include in, its name the name or names of one or more deceased or retired members of the firm or of a predecessor firm in a continuing line of succession. Nothing herein shall prohibit a married woman from practicing under her maiden name. (b) A firm with offices in more than one jurisdiction may use the same name in each jurisdiction, but identification of the lawyers in an office of the firm shall indicate the jurisdictional limitations on those not licensed to practice in the jurisdiction where the office is located. (c) The name of a lawyer occupying a judicial, legislative, or public executive or administrative position shall not be used in the name of a firm, or in communications on its behalf, during any substantial period in which the lawyer is not actively and regularly practicing with the firm. (d) A lawyer shall not hold himself or herself out as being a partner, shareholder, or associate with one or more other lawyers unless they are in fact partners, shareholders, or associates. (e) A lawyer shall not advertise in the public media or seek professional employment by written communication under a trade or fictitious name, except that a lawyer who practices under a trade name as authorized by paragraph (a) of this Rule may use that name in such advertisement or such written communication but only if that name is the firm name that appears on the lawyer's letterhead, business cards, office sign, fee contracts, and with the lawyer's signature on pleadings and other legal documents. (f) A lawyer shall not use a firm name, letterhead, or other professional designation that violates Rule 7.02(a).

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http://www.law.cornell.edu/ethics/tx/code/TX_CODE.HTM









RULE 7.02

Rule 7.02 Communications Concerning a Lawyer's Services (a) A lawyer shall not make a false or misleading communication about the qualifications or the services of any lawyer or firm. A communication is false or misleading if it: (1) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading; (2) is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate these rules or other law; (3) compares the lawyer's services with other lawyers' services, unless the comparison can be substantiated by reference to verifiable, objective data; (4) states or implies that the lawyer is able to influence improperly or upon irrelevant grounds any tribunal, legislative body, or public official; or (5) designates one or more specific areas of practice in an advertisement in the public media or in a written solicitation unless the advertising lawyer is competent to handle legal matters in each such area of practice. (b) Rule 7.02(a)(5) does not require that a lawyer be certified by the Texas Board of Legal Specialization at the time of advertising in a specific area of practice, but such certification shall conclusively establish that such lawyer satisfies the requirements of Rule 7.02(a)(5) with respect to the area(s) of practice in which such lawyer is certified. (c) A lawyer shall not advertise in the public media that the lawyer is a specialist except as permitted under Rule 7.04. (d) Any statement or disclaimer required by these rules shall be made in each language used in the advertisement or writing with respect to which such required statement or disclaimer relates; provided however, the mere statement that a particular language is spoken or understood shall not alone result in the need for a statement or disclaimer in that language.

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RULE 7.04

Rule 7.04 Advertisements in the Public Media (a) A lawyer shall not advertise in the public media that the lawyer is a specialist, except as permitted under Rule 7.04(b) or as follows: (1) A lawyer admitted to practice before the United States Patent Office may use the designation "Patents," "Patent Attorney," or "Patent Lawyer," or any combination of those terms. A lawyer engaged in the trademark practice may use the designation "Trademark," "Trademark Attorney," or "Trademark Lawyer," or any combination of those terms. A lawyer engaged in patent and trademark practice may hold himself or herself out as specializing in "Intellectual Property Law," "Patent, Trademark, Copyright Law and Unfair Competition," or any of those terms. (2) A lawyer may permit his or her name to be listed in lawyer referral service offices that meet the requirements of Article 320d, Revised Statutes, according to the areas of law in which the lawyer will accept referrals. (3) A lawyer available to practice in a particular area of law or legal service may distribute to other lawyers and publish in legal directories and legal newspapers a listing or an announcement of such availability. The listing shall not contain a false or misleading representation of special competence or experience, but may contain the kind or information that traditionally has been included in such publications. (b) A lawyer who advertises in the public media: (1) shall publish or broadcast the name of at least one lawyer who is responsible for the content of such advertisement. (2) shall not include a statement that the lawyer has been certified or designated by an organization as possessing special competence or a statement that the lawyer is a member of an organization the name of which implies that its members possess special competence, except that:

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RULE 7.04 (CONT.)

Rule 7.04 Advertisements in the Public Media (cont.) (i) a lawyer who has been awarded a Certificate of Special Competence by the Texas Board of Legal Specialization in the area so advertised, may state with respect to each such area, "Board Certified, [area of specialization]--Texas Board of Legal Specialization;" and (ii) a lawyer who is a member of an organization the name of which implies that its members possess special competence, or who has been certified or designated by an organization as possessing special competence, may include a factually accurate statement of such membership or may include a factually accurate statement, "Certified [area of specialization] [name of certifying organization]," but such statements may be made only if that organization has been accredited by the Texas Board of Legal Specialization as a bona fide organization that admits to membership or grants certification only on the basis of objective, exacting, publicly available standards (including high standards of individual character, conduct, and reputation) that are reasonably relevant to the special training or special competence that is implied ant that are in excess of the level of training and competence generally required for admission to the Bar; and (3) shall state with respect to each area advertised in which the lawyer has not been awarded a Certificate of Special Competence by the Texas Board of Legal Specialization, "Not Certified by the Texas Board of Legal Specialization," however, if an area of law so advertised has not been designated as an area in which a lawyer may be awarded a Certificate of Special Competence by the Texas Board of Legal Specialization, the lawyer may also state, "No designation has been made by the Texas Board of Legal Specialization for a Certificate of Special Competence in this area." (c) Separate and apart from any other statements, the statements referred to in paragraph (b) shall be displayed conspicuously with no abbreviations, changes, or additions in the quoted language set forth in paragraph (b) so as to be easily seen or understood by an ordinary consumer. (d) Subject to the requirements of Rule 7.02 and of paragraphs (a), (b), and (c) of this Rule, a lawyer may, either directly or through a public relations or advertising representative, advertise services in the public media, such as (but not limited to) a telephone directory, legal directory, newspaper or other periodical, outdoor display, radio, or television. (e) All advertisements in the public media for a lawyer or firm must be reviewed and approved in writing by the lawyer or a lawyer in the firm. (f) A copy or recording of each advertisement in the public media and relevant approval referred to in paragraph (e), and a record of when and where the advertisement was used, shall be kept by the lawyer or firm for four years after its last dissemination.

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RULE 7.04 (CONT.)

Rule 7.04 Advertisements in the Public Media (cont.) (g) In advertisements utilizing video or comparable visual images, any person who portrays a lawyer whose services or whose firm's services are being advertised, or who narrates an advertisement as if he or she were such a lawyer, shall be one or more of the lawyers whose services are being advertised. In advertisements utilizing audio recordings, any person who narrates an advertisement as if he or she were a lawyer whose services or whose firm's services are being advertised, shall be one or more of the lawyers whose services are being advertised. (h) If an advertisement in the public media by a lawyer or firm discloses the willingness or potential willingness of the lawyer or firm to render services on a contingent fee basis, the advertisement must state whether the client will be obligated to pay all or any portion of the court costs and, if a client may be liable for other expenses, this fact must be disclosed. If specific percentage fees or fee ranges of contingent fee work are disclosed in such advertisement, it must also disclose whether the percentage is computed before or after expenses are deducted from the recovery. (i) A lawyer who advertises in the public media a specific fee or range of fees for a particular service shall conform to the advertised fee or range of fees for the period during which the advertisement is reasonably expected to be in circulation or otherwise expected to be effective in attracting clients, unless the advertisement specifies a shorter period; but in no instance is the lawyer bound to conform to the advertised fee or range of fees for a period of more than one year after the date of publication. (j) A lawyer or firm who advertises in the public media must disclose the geographic location, by city or town, of the lawyer's or firm's principal office. A lawyer or firm shall not advertise the existence of any office other than the principal office unless: (1) that other office is staffed by a lawyer at least three (3) days a week; or (2) the advertisement discloses the days and times during which a lawyer will be present at that other office. (k) A lawyer may not, directly or indirectly, pay all or a part of the cost of an advertisement in the public media for a lawyer not in the same firm unless such advertisement discloses the name and address of the financing lawyer, the relationship between the advertising lawyer and the financing lawyer, and whether the advertising lawyer is likely to refer cases received through the advertisement to the financing lawyer. (l) If an advertising lawyer knows or should know at the time of an advertisement in the public media that a case or matter will likely be referred to another lawyer or firm, a statement of such fact shall be conspicuously included in such advertisement.

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RULE 7.04 (CONT.)

Rule 7.04 Advertisements in the Public Media (cont.) (m) No motto, slogan, or jingle that is false or misleading may be used in any advertisement in the public media. (n) A lawyer shall not include in any advertisement in the public media the lawyer's association with a lawyer referral service unless the lawyer knows or reasonably believes that the lawyer referral service meets the requirements of Article 320d, Revised Statutes. (o) A lawyer may not advertise in the public media as part of an advertising cooperative or venture of two or more lawyers not in the same firm unless each such advertisement: (1) states that the advertisement is paid for by the cooperating lawyers; (2) names each of the cooperating lawyers; (3) sets forth conspicuously the special competency requirements required by Rule 7.04(b) of lawyers who advertise in the public media; (4) does not state or imply that the lawyers participating in the advertising cooperative or venture possess professional superiority, are able to perform services in a superior manner, or possess special competence in any area of law advertised, except that the advertisement may contain the information permitted by Rule 7.04(b)(2); and (5) does not otherwise violate the Texas Disciplinary Rules of Professional Conduct. (p) Each lawyer who advertises in the public media as part of an advertising cooperative or venture shall be individually responsible for: (1) ensuring that each advertisement does not violate this Rule; and (2) complying with the filing requirements of Rule 7.07.

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RULE 7.05

Rule 7.05 Prohibited Written Solicitations (a) A lawyer shall not send or deliver, or knowingly permit or cause another person to send or deliver on the lawyer's behalf, a written communication to a prospective client for the purpose of obtaining professional employment if: (1) the communication involves coercion, duress, fraud, overreaching, intimidation, undue influence, or harassment; (2) the communication contains information prohibited by Rule 7.02 or fails to satisfy each of the requirements of Rule 7.04(a) through (c), and (h) through (o) that would be applicable to the communication if it were an advertisement in the public media; or (3) the communication contains a false, fraudulent, misleading, deceptive, or unfair statement or claim. (b) Except as provided in paragraph (e) of this Rule, a written solicitation communication to prospective clients for the purpose of obtaining professional employment: (1) shall conform to the provisions of Rule 7.04(a) through (c); (2) shall be plainly marked "ADVERTISEMENT" on the first page of the written communication, and the face of the envelope also shall be plainly marked "ADVERTISEMENT," however, if the written communication is in the form of a self-mailing brochure or pamphlet, the word "ADVERTISEMENT" shall be: (i) in a color that contrasts sharply with the background color; and (ii) in a size of at least 3/8 vertically or three times the vertical height of the letters used in the body of such communication, whichever is larger. (3) shall not be made to resemble legal pleadings or other legal documents; (4) shall not contain a statement or implication that the written communication has received any kind of authorization or approval from the State Bar of Texas or from the Law Advertisement and Solicitation Review Committee; (5) shall not be sent in a manner, such as by registered mail, that requires personal delivery to a particular individual; (6) shall not reveal on the envelope used for the communication, or on the outside of a self-mailing brochure or pamphlet, the nature of the legal problem of the prospective client or nonclient; and (7) shall disclose how the lawyer obtained the information prompting such written communication to solicit professional employment if such contact was prompted by a specific occurrence involving the recipient of the communication or a family member of such person(s).

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RULE 7.05 (CONT.)

Rule 7.05 Prohibited Written Solicitations (cont.) (c) All written communications to a prospective client for the purpose of obtaining professional employment must be reviewed and either signed by or approved in writing by the lawyer or a lawyer in the firm. (d) A copy of each written solicitation communication, the relevant approval thereof, and a record of the date of each such communication; the name and address to which each such communication was sent; and the means by which each such communication was sent shall be kept by the lawyer or firm for four years after its dissemination. (e) The provisions of paragraph (b) of this Rule do not apply to a written solicitation communication: (1) directed to a family member or a person with whom the lawyer had or has an attorney-client relationship; (2) that is not motivated by or concerned with a particular past occurrence or event or a particular series of past occurrences or events, and also is not motivated by or concerned with the prospective client's specific existing legal problem of which the lawyer is aware; (3) if the lawyer's use of the communication to secure professional employment was not significantly motivated by a desire for, or by the possibility of obtaining, pecuniary gain; or (4) that is requested by the prospective client.

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Social Media in the

Legal Profession

2014/2015 State Bar & Case Law Updates

Karen Lee Lust, Reed Smith LLP

Is Social Media Attorney Advertising?

• If a blog or a social media profile is used exclusively for personal purposes and not professional, no

• But where there is a hybrid use (semi-professional, mix of personal and business), attorneys should err on the side of caution to ensure it complies with attorney advertising and ethics rules

• Some states that require advertising material to be submitted prior to publication) or must include a disclaimer in states that require a disclaimer on all lawyer advertisements

• “Attorney Advertising”

• Past outcomes are not a guarantee of future results

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LinkedIn

• LinkedIn is the most popular social media site among lawyers - over 98

percent of individual lawyers use it.

• American Bar Association’s 2013 Legal Technology Survey

• Are they using it ethically, in compliance with attorney advertising and ethics

rules?

• New guidance has recently been issued by various state bars, as well as

through advisory opinions

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LinkedIn (NYSBA Social Media Update, 2015)

• NYCLA, Formal Op. 748 addresses the types of content on LinkedIn that may be considered “attorney advertising”:

• “[i]f an attorney’s LinkedIn profile includes a detailed description of practice areas and types of work done in prior employment” it should be marked as “attorney advertising”

• A lawyer’s LinkedIn profile that contains basic biographical information and a mere listing of previous employment – not advertising

• A profile that “includes subjective statements regarding an attorney’s skills, areas of practice, endorsements, or testimonials from clients or colleagues, however, is likely to be considered advertising.”

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Model Rules of Professional Conduct

• Model Rule 7.1 –Communications Concerning A Lawyer's Services

• 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.

• Model Rule 7.2 - Advertising

• (a) Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through written, recorded or electronic communication, including public media.

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LinkedIn: Specialties and Expertise

• Lawyers shall not advertise areas of practice under headings in social media platforms that include the

terms “specialist,” unless the lawyer is certified by the appropriate accrediting body in the particular

area. (NYRPC 7.1, 7.4; see also NYCLA Op. 748).

• LinkedIn has changed their “Specialties and Expertise” heading to “Skills and Expertise” as of March 2012

(but see Philadelphia Bar Association in its 2012-8 Opinion v. Florida Bar Association’s 9/2013 Opinion)

• Certain states have issued ethics opinions prohibiting lawyers from listing their practice areas under

headings of “specialist” and also “expert” but this, too, is in flux

• The Florida Bar’s April 2013 guidelines on specialization/expertise were determined to be in violation of

the 1st Amendment in Searcy v. Fla. Bar, No. 4:13cv664-RH/CAS (N.D. Fla. Sept. 30, 2015)

• A limited exception to identification as a specialist may exist for lawyers who are certified “by a

private organization approved for that purpose by the American Bar Association” (e.g., patent

attorney; CIPP by IAPP). 40

LinkedIn Profiles: “Endorsements”

• Because the rules contemplate “testimonials or endorsements,” attorneys who allow “Endorsements” from other users and “Recommendations” to appear on one’s profile fall within Rule 7.1(d), and therefore must include the disclaimer set forth in Rule 7.1(e).

• An attorney who claims to have certain skills must also include this disclaimer because a description of one’s skills—even where those skills are chosen from fields created by LinkedIn—constitutes a statement “characterizing the quality of the lawyer’s services” under Rule 7.1(d).

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LinkedIn Profiles: Endorsements

• A lawyer must ensure the accuracy of third-party legal endorsements,

recommendations, or online reviews posted to the lawyer’s social media

profile. To that end, a lawyer must periodically monitor and review such

posts for accuracy and must correct misleading or incorrect information

posted by clients or other third-parties. (NYRPC 7.1-7.4)

• A lawyer cannot passively allow misleading endorsements as to her skills and

expertise to remain on a profile controlled by her.

• LinkedIn vs. Yelp, Google, Avvo, Martindale (may require “curative” posts)

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Use of Awards, Rankings on

Social Media

• Several state ethics boards have examined whether attorneys may include their designation as a Super Lawyer or ranking on the Best Lawyers list in advertising and/or social media

• Generally, it is permitted, provided that

• The designation is clearly from an identifiable third party (i.e. the attorney has been chosen as a Super Lawyer by Key Professional Media, Inc., rather than the attorney is self-identifying as super lawyer)

• The year and specialty area must be clearly listed (many of the ratings groups have badges with these details that can be added to websites and social media profiles)

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The Flip Side of Social Media

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When Social Media Turns Negative

• Attorneys may have to contend with negative comments or reviews posted on social media by current or former clients (NY and California Opinions)

• An attorney may respond generally, but is prohibited from revealing privileged or confidential client information to respond to statements made by current or former clients online

• While New York recognizes the Self-Defense exception to Rule 1.6, it does not apply in this situation, where no actual or threatened legal proceeding against the lawyer exists

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Side Note: LinkedIn & Juror Communications

• An attorney is ethically permitted to view the public portion of a person’s social media website, profile or posts, whether represented or not, for the purpose of obtaining information about the person, including impeachment material for use in litigation

• Unintentional communications with a represented party may occur if a social media network automatically notifies that person when someone views her account.

• Is that enough to impact a juror’s state of mind?

• Conflict between NY State Bar (an ethical violation) and the ABA (considers this only a “passive review”)

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Twitter

• Utilizing the disclaimer “Attorney Advertising” given the confines of

Twitter’s 140 character limit (which in practice may be even less than 140

characters when including links, user handles or hashtags) may be impractical

or not possible.

• Yet, such structural limitation does not provide a justification for not

complying with the ethical rules governing attorney advertising. Thus,

consideration should be given to only posting tweets that would not be

categorized as attorney advertising.

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Twitter: a “Real-Time” or “Interactive”

Advertisement?

• “Real-time or interactive” advertising, such as instant messaging or chat rooms involving live responses – provided in real time – are prohibited under NYSBA Op. No 1009.

• Practitioners are advised that both the social media platforms and ethical guidance in this area are evolving and care should be used when using any potentially “live” or real-time tools.

• Pennsylvania Rules of Professional Conduct differ, according to the Philadelphia Bar Association: solicitation through a chat room is permissible, because it is more akin to targeted direct mail advertisements, which are allowed under Pennsylvania’s ethics rules.

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Advertising Retention Requirements

• Rule 7.1(k) of the NYRPC provides that:

• All advertisements “shall be preapproved by the lawyer or law firm.”

• A copy of an advertisement “shall be retained for a period of not less than three years

following its initial dissemination,” but specifies an alternate one-year retention period

for advertisements contained in a “computer-accessed communication”

• ‘‘computer-accessed communication’’ - any communication made by or on behalf of a

lawyer or law firm that is disseminated through “the use of a computer or related

electronic device, including, but not limited to, web sites, weblogs, search engines,

electronic mail, banner advertisements, pop-up and pop-under advertisements, chat

rooms, list servers, instant messaging,” etc.

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Answering Questions via Social Media

• General responses vs. Specific responses to a question – the more general the

question, the better.

• Before answering a question posed, an attorney should consider:

• Does it conceivably establish an attorney-client relationship?

• Was there a conflict check in advance?

• Can the response be viewed by others?

• Does the response disclose privileged or confidential information?

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Social Media Ethics & Attorney Competence

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© 2015 Linda V. Priebe, Culhane Meadows PLLC NOT FOR DUPLICATION OR DISTRIBUTION www.CulhaneMeadows.com

SM Ethics 4 Attys:

Woulda, Coulda, Shoulda? October 7, 2015

Linda V. Priebe, Social Media & Ethics Compliance

Washington, DC


What We’ll Talk About • Atty E duties re SM use in DC, VA & MD

– Competence

– Confidentiality

– Advertising

– Investigation

– Evidence

• Note Also Re Law Firm SM Policies -

– ER NLRB EE T&C of Emp; EEOC hiring, State HR Law, EE Data Privacy/Security,

EU? (FB & Tw Ireland)

– Ads FTC & State Law; Data Privacy/Security, EU; polit & charitable solic

– EE Official Use (SM Admin)/Personal/Professional Use

– Firm Public Comment Moderation i.e., “Take down”

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My Ethics Compliance

• My suggestions do not constitute the standard of care in atty disc or

malpractice in any jurisdiction

– Not legal advice either

– But may help you avoid weak ethics or malpractice claims

– Be sure to consult counsel familiar w/ SM tech; atty bar rules &

choice of law in your practice jurisdictions

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DC Bar Counsel Gene Shipp

• World of lawyers is changing faster than ABA and courts can study and address attorney

professional rules and issues.

• So fast that the high-profile celebrity who visits your office may be unhappy with your staff’s violation of

Rule 1.6 when their photo is shared on Facebook even before you’ve had a chance to say hello.

• Legal commentators call SM the new “Wild West” & “ethics minefield”

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ABA Legal Tech Survey 2013

• 98% of attorneys on LinkedIn

• 33% on Facebook

• 81% report using social media for career development &

networking

• 44% (2012) utilizing social media for case investigation

• 81% for client development

• 68% do not comply w/ Firm SM policies

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• MRPC, DC, VA & MD bar rules not the same

• Aug 2012 ABA House of Delegates changes to MRPC

– E-mail is now “electronic communications”

– Atty competence now requires understanding risks and benefits of new

technology

– “phone call” is now “client communications”

– “Discusses” is now “consults” re: potential clients

• U must learn info from potential client to form A/C reln

– “Television” is now “email”, “website” & “Internet” re attorney ads

ABA Comm’n Ethics 20/20

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ABA Comm’n Ethics 20/20-2

• MRPC NEW 1.6(c) Atty must make reasonable efforts to prevent inadvertent, unauthorized

disclosure, or access to “info relating to rep” (Not just confidences)

• Choice of Law re Attorney Discipline (MRPC 8.5 comment)

– Bar adjudicator can consider parties agreement re which jurisdiction’s Bar rules apply

– If in writing and client gives informed consent

• Now pending before state bars for adoption

– VA Prop’d 1.1 Comm 6: . . . a lawyer should engage in continuing study and education in areas of

practice. Attention should be paid to benefits and risks associated with relevant technology.

– VA Prop’d 1.6 d: Lawyer shall make reasonable efforts to prevent inadvertent or unauth

disclosure or unauth access to info protected under this Rule (A/C Priv’d info, embarrassing or

detrimental except Ct info per Hunter) (Factor = emp comp IT)

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DC Atty Ad Rules

• DC streamlined compared to other jurisdictions

• If more than one bar, comply with most stringent

• DC 7.1 No false or misleading communications re attorney services

– Including omissions

– No “assertion(s) … that cannot be substantiated”

• No DC 7.2, 7.3 or 7.4

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VA Atty Ad Rules

• VA 7.1 No false or misleading communs re atty services

– inc’g omissions

– No results w/o specified disclaimer in specified type face

– Ad req’s name & office of responsible atty

– Comment: client refs w/ consent OK if not false or misleading or violate 8.4

(Misconduct via another)

• VA 7.3 Electronic communs require “ADVERTISING MATERIAL” at beginning & end. ?

SM esp Twitter (Atty Ad?; FTC “Ad:”)

– Unless atty, family, personal or prior pro reln, or prior non-ad contact

• VA 7.4 OK to state limiting practice in particular fields of law

– “Recognized or certified as specialist” OK if USPTO; Admiralty; Mediation

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• MD 7.1 No false or misleading communs re atty services – 6/14 inc Linkedin/SM

– Inc’g omissions, results, comparisons (unless can be substantiated)

– Endorsements & testimonials from “bona fide pre-existing client” OK

– Must monitor content posted on SM page by 3rd parties for E compliance

• MD 7.2 Real-time communications OK ONLY if NOT in person contact – SM DMs? Chats?

– Ad req’s name of responsible atty

• MD 7.3 Real-time electronic contact OK when

– Person contacted is atty

– Family, close personal, prior prof’l reln

– Electronic communs must inc “Advertising Material” at beginning & end ? SM esp Twitter (Atty Ad?; FTC

“Ad:”)

• MD 7.4 Communs re practice in particular legal fields OK

– “shall not hold self out publicly as a specialist” except USPTO & Linkedin Skills, Expertise & Specialist

fields (E Opin 2014-05 June 2014 In consid whole Linkedin profile not misleading to public)

MD Atty Ad Rules

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• DC & VA currently silent

• MD 7.2 Copy or recording of ad must be retained

for 3 years

• Retention commonly required by other bars

• Wise for attorney evidence of compliance

Archiving Atty SM Ads

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• Specialization OK?

– DC: OK if can be substantiated

– VA: Only if cert’d by USPTO, Admiralty, VA Sup Ct ex: Mediation

– MD: NO except USPTO + Linkedin Skills, Expertise & Specialist fields if whole Linkedin profile

not misleading. E Opin 2014-05 6/14

• Endorsements - OK to receive?

– DC: OK w/ client informed consent if not false or misleading

– VA: OK w/ client consent if not false or misleading or violate 8.4 (Misconduct via another) (7.1

Comment)

– MD: Endorsements & testimonials from “bona fide pre-existing client” w/ informed consent OK

so long as monitor own profile

• Contacts: OK to disclose client ID?

– DC: Client ID OK w/ informed consent; VA: Client ID OK w/ client consent; MD: Client ID OK w/

client informed consent.

DC/VA/MD Ethics Linkedin

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• Twitter is 99% public – high risk libel & defamation claims

• Client confidentiality

• DC 1.6 Protects client “confidences” & “secrets” = A/C priv’d, embarrassing or detrimental

info -Client “informed consent” req’d

• VA 1.6 Protects “A/C priv”; “embarrassing”; “detrimental” info

• unless per Hunter info in pub ct docs? – (VERY controversial among legal

ethicists)

• Prop’d 1.6d lawyer shall make reason efforts to prevent inadvertent or unauth

disclosure or unauth access to info protected under Rule.

• MD 1.6 Protects “info relating to rep” (even Ct/public info? E Opin 2014-05 does not

address) - Client “informed consent” req’d.

How Tweet It Is?

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SM Evidence in Court • 2011 Lester v. Allied Concrete VA Sanctions $542 K

– Atty/paralegal told client to remove photos from Facebook

– Spoliation of evidence (VA/DC/MD 3.4)

– VA Bar 5 year suspension (In re Murray July 2013)

• 2011 Griffin v. State: Md Ct Appeals “as a matter of prof’l competence” attys should investigate SM

websites (& use if properly authenticated)

• Juror voir dire

– Carrino v. Muenzen NJ 2010: Researching potential jurors online in court permissible: Review of public

info on Internet req’d for effective counsel. (Technology competence)

– ABA too – Formal Opin 466 April, 2014

• “Friending/Liking/Following/Connecting” potential juror to access SM posts?

• DC 3.5 No ex parte communs w/ jurors or potential jurors

• VA 3.5 No direct or indirect communs w/ jurors or poten jurors

• MD 3.5 No commun outside proceedings w/ jurors or poten juror’s

• ABA: Oddly Linkedin showing profile views OK. Maybe not: NYSBA SM E Guidance 6/15; ?Li

Anon Fxn

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Firm SM Policies Gen’l • Narrowly tailor SM policies to protect vital Firm interests such as compliance w/ Bar Rules

• Plain language w/ ex understood by reasonable EE & public

• Consider EE Official (SM Admin’r); Personal (FB); Personal Professional Use (Li; Tw)

• Law Firm SM Public Terms of Use & Participation

• Law Firm SM Public Comment Moderation

• Law Firm monitoring of Firm SM use (& EE? Law=Reg’d industry?)

• Treat all sim EEs & Applicants the same (unless industry reg justifies)

• Train ALL EEs, Partners & Managers re SM use

• Archive Firm SM activity for evidence of compliance

• Legal Review SM policies/practices every 6 mos & inform ALL of update

• Enforce consistently

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• Cover All Firm SM accounts including Blawgs

• Permissive or restrictive?

• Comply with SM site conduct rules?

• Address EE Official & Personal/Pers Prof SM use?

• Public Comment Takedown Policy

– 1. Terms of SM Page Use; 2. Comment Moderation

– If not Govt not 1st Amend Forum but still:

• Workplace harassment, discrimination & labor laws

• Atty ethics standards: confidentiality; inadvertent AC Relns; UPL; advertising; COI

• Protect Intellectual Property of Firm & 3rd parties

• Fed & State privacy, ad, charitable, polit activity laws

• Enforce consistently!

Law Firm SM Policy Specifics

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THANK YOU

Linda V. Priebe Chair, Ethics & Compliance

Culhane Meadows PLLC Washington DC

[email protected]

Twitter @LindaPriebe @CulhaneMeadows

(202) 600-6233 Mobile USA EST

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