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OYEZ! The Nashville Bar AssociationYoung Lawyers DivisionQuarterly Newsletter FALL, 2012
Before You Post:Best Practices for Providing Advice on Social Media Topics
For better or worse, with a few swipes of a touch screen at any time and in any place, each of us has the ability to share content with the world. Whether it be a tweet, check in, tag, like, post or pin, social media — defined academi-cally as “a group of Internet-based ap-plications that build on the ideological and technological foundations of Web 2.0, and that allow the creation and exchange of User Generated Content” — has changed the ways we use the Internet and the ways we communi-cate.1
Recent statistics indicate that almost 20 percent of time, or nearly one of every five minutes, spent online is spent on social networking sites.2
Legal and ethical issues raised by social media participation are found in nearly every practice area: Should lawyers or parties contact opposing parties, opposing counsel, or a judge via Facebook or LinkedIn — should they follow their Twitter feeds? How does a duty to preserve evidence apply to social media content? — what
By: Laura P. Merritt
continued on page 2
IN THIS ISSUE
Before You Post:Laura Merritt shares her insights on how to tackle the legal and ethical issues that arise out of social media use.......................................................Page 1
YLD Annual Meeting5:30 p.m., Oct. 4 @ Buffalo BilliardsSee page 3 for the details!......................................................Page 3
President’s AddressSara Reynolds celebrates the many service accomplishments of YLD this year thus far and welcomes Robb Bigelow as next year’s president.......................................................Page 4Upcoming EventsWe have a number of great events scheduled for the fall season. Grab your calendars and don’t miss out!......................................................Page 5
YLD Board DirectoryExecutive Board and Committee Member List......................................................Page 6
AnnouncementsYou might have noticed our new look! Big changes are coming to OYEZ! as we upgrade our design and e-delivery method over the next few publications.
If you have any questions, comments or suggestions for future publications, please e-mail Nicole Jumper at [email protected] or Wade Sims at [email protected].
Copyright © 2012, Nashville Bar Association Young Lawyers Division Design by Wade SimsOctober 2012
can be preserved? How can impeaching evidence from a party’s social media activity be used and who controls the material? What recourse does a business have for false statements posted in anonymous reviews? What liability exists if copyrighted material is posted on a business’s Facebook page by a third party? How can companies prevent others from incorporating their trade-marks into domain names and user names? What rules apply to contests run through social media? Can compa-nies offer discounts or free products in exchange for a “like,” “pin,” or “check in”? Should employers review job applicants’ social media profiles? Can employers require employees to disclose their social media activity? The list could go on.
Stated plainly, lawyers cannot ignore social media. Regardless of your personal social media habits, you are likely to run into some of these issues in your practice. As technology continues to evolve, there may not be clear case law addressing the situation facing you or your client. Below are several pointers to providing advice on social media related legal concerns.
Tip 1: Educate yourself on how various types of social media operate.
As lawyers, we have an ethical duty of competency.3 While many lawyers choose not to engage in social media (some out of an abundance of caution to avoid ethical risks) failing to familiarize yourself on how social media net-works work and being unfamiliar with the associated legal issues in your practice area could be considered an ethical violation.4 For example, a lawyer telling clients to remove their social media profiles before filing a lawsuit could create spoliation. Not understanding the nature of re-tweets could impact a lawyer’s ability to advise clients on intellectual property or defamation issues arising out of content that was tweeted.
The largest social media networks in the United States in terms of unique visitors were Facebook, LinkedIn, Twitter, Myspace and Tumblr between October 2010 and October 2011.5 All lawyers should at least visit these sites and review information about what they offer and how they work.
Cover Story: from page 1Tip 2: Remember that social media is always changing.
In connection with learning about social media sites, it’s important to realize that they are constantly changing. In the past decade, Facebook has gone from a restricted network at select universities to a network that reaches 55 percent of the world and accounts for three of every four minutes spent on social media.6 Advice given a few years ago or even a few months ago may no longer be applicable if the functionality and capability of the social network has changed.
For example, Facebook currently has developed func-tionality to archive a profile and to review a user’s activity (subject to privacy controls) that did not previously exist. The best practices for preserving evidence with these tools inevitably is not the same as it was before they existed. As another example, requiring employees to include a dis-claimer that their postings do not reflect the opinions of their employers can be logistically difficult. Each platform has its own place where the disclaimer may or may not be visible. When viewers utilize various apps to view posts on smartphones or other devices, those disclaimers may no longer be visible. When a site has design changes, advice on disclaimer locations should be reviewed to make sure it is still applicable.
Regardless of your personal social media habits, you are likely to run into some of these issues in your practice.
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Before You Post:Best Practices for Providing Advice on Social Media Topics
Tip 4: User terms and policies are not set in stone.
All social media platforms have terms for those who use their sites. When a client has an issue specific to a certain forum, review these terms. However, keep in mind that the terms often change as the law continues to evolve. Consid-er the time period at issue and determine if there is a dif-ferent version of the terms that may be applicable. Along the same lines, carefully review any case law or other guid-ance addressing to see if they are still applicable if the user terms have been revised.
Tip 5: Always remember ethical obligations.
Last but certainly not least, as attorneys we are always governed by the Rules of Professional Conduct. Tennes-see does not have any professional conduct rules related specifically to social media, and the Board of Professional Responsibility has not issued any opinions related to social media. However, rules about client confidences, solicita-tions, and advertisements apply no less in the social media context than in means of traditional communications.
I hope these tips will be a helpful starting point when social media issues arise in your practice — not only for the questions that exist today, but for the multitude of considerations that will arise as technology continues to change the ways we interact.
Tip 4: User terms and policies are not set in stone.
Tip 5: Always remember ethical obligations.
Laura P. Merritt is an attorney with Waller Lans-den Dortch & Davis, LLP, and practices in the areas of trial and appellate litigation and intellectual property.She regularly contributes to TIPS, www.wallertips.com, a Waller blog providing perspectives on intellectual property issues.
1 Andreas M. Kaplan & Michael Haenlein, Users of the World, Unite! The Challenges and Opportunities of SocialMedia, 53 BUS. HORIZONS 59, 61 (2010).2 Nick Clayton, Social Networks Acount for 20 Percent of Time Spent Online, The Wall Street Journal, December 22, 2011, available at: http://blogs.wsj.com/tech-europe/2011/12/22/social-networks-ac-count-for-20-of-time-spent-online/.3 Tenn. Sup. Ct. R. 8, RPC 1.1.4 Margaret M. DiBianca, Ethical Risks Arising From Lawyers’ Use Of (And Refusal to Use) Social Media, 12 Del. L. Rev. 179 (2011) (questioning whether competency standards require lawyers to have a basic familiarity withsocial media). 5 comScore, It’s a Social World: Top 10 Need-to-Know About Social Networking and Where It’s Headed, available at: http://www.com-score.com/Press_Events/Presentations_Whitepapers/2011/it_is_a_social_world_top_10_need-to-knows_about_social_networking.6 Id.
Before You Post
YLD Annual MeetingThe YLD Annual Meeting is set for October 4, 2012 at Buffalo Billiards. The event begins at 5:30 p.m. All YLD members are invited to attend!
Officers for the 2012-2013 YLD Board will be elected at the meeting. The slate of officers up for election is:
Events Director: Public Service Director:Membership Director:Professional Development Director:
President: President Elect: Immediate Past President:Treasurer:Secretary:
Robb BigelowErin Palmer PollySarah ReynoldsColleen BrackenLauren Paxton Roberts
Ryan LevyMatt PotempaMatt Kroplin
Justin McNaughton
It is amazing how quickly a year passes in the life of the Young Lawyer’s Division. In fact, it is amazing how quickly my 9 years on the YLD Board have
flown by. I had no idea what I was in for when Scott Sims plopped himself down in my office almost a decade ago and announced that I would be joining the Board during his presidency. Now, as a rising “old lawyer,” I am so thankful for my years in this energetic and service-oriented organization, as well as for the wonderful relationships that have resulted from my participation.
We had an absolutely wonderful group on the YLD Board this year. Here are just a few things that they accomplished:
1. The Davidson County Mock Trial Competition was held on February 17-18. Close to 20 teams from area high schools competed for one of two spots at the State Competition. Matthew Cox and Becca Barnett managed to organize over 100 volunteers, 200 high school students, and their families/friends into a seam-less competition that introduced these young people to the legal system.
2. The annual Land Rover Race Judicata was held on February 25 at Percy Warner Park. There were over 480 registered runners at this year’s race, a new record. Many thanks to Will Parsons and Patrick Cooper for organizing this event that raised money for First Steps, Inc.
3. At this year’s annual NBA Law Day Luncheon in April, Matt Kroplin and Andrew Ross presented awards to the YLD Art and Essay winners from local elementary, middle, and high schools. The YLD also organized classroom visits where young lawyers spoke to students about the legal profession.
4. On June 13, the YLD partnered with the Arts and Business Council of Greater Nashville to raise money for Volunteer Lawyers and Professionals for the Arts at the annual Arts Immersion event. The VLPA has provided more than $1 million of pro bono legal services to 300 nonprofit arts organizations and over 1000 low-income artists in the last five years. Our thanks to Tyler Middleton for her continued work on this event.
5. The 15th Annual Carbolic Smoke Ball was held on July 14 at The Ruby. The event raised money for two local nonprofit organizations – Legal Aid Society of Middle Tennessee and Court Appointed Special Advocates (CASA) of Nashville. Once again, Colleen Bracken and Will Hicky organized a wonderful event where people had a great time raising money for two great causes.
6. In July, under the leadership of Tera Rica Murdock, the YLD staffed the HELP Clinic at Room at the Inn. HELP stands for Homeless Experience Legal Protection, and it is an advice clinic for homeless people.
7. In September, Ms. Murdock also organized the annual Toiletry Drive to benefit the homeless. The YLD and NALS sponsor this drive for the benefit of Nashville’s Homeless population every year. Toiletries are gathered in firms and law offices across the city and then delivered to the Nashville Rescue Mission
This list doesn’t begin to cover all of the activities and events organized by the young lawyers this year. Under the leadership of Robb Bigelow, I am sure next year will be even better! Once again, thanks to all of the people who helped make this another successful year in “Service to the Community, Service to the Profession.”
President’s AddressFrom Sara Reynolds
Upcoming Events
Solo Practice BreakfastPancake PantryTuesday, October 9, 2012, 7:30 - 9:00 a.m.Roundtable Discussion: How Are Clients Most Often Referred to Your Firm?
NBF Fellows DinnerHutton HotelSaturday, November 3, 2012
NBA Swearing-In CeremonyTuesday, November 13, 2012
Memorial ServiceDowntown Presbyterian ChurchThursday, November 15, 2012
WallerFriday, November 16, 201210:30 a.m. - 3:30 p.m.
Too stressed? Join us November 16 to learn about time-saving, stress-reducing techniques and technol-ogies for the modern attorney. Learn more about the science of Mindfulness and how to achieve a true work/life balance. Register now at: http://hbp2012.eventbrite.com
The Hospitality Room will feature:• chair massages• stretching, posture, & alignment tutorials• nutritionist consultations
Healthy Bar Party Annual Banquet
Wildhorse SaloonThursday, December 6, 2012
Join us at the Wildhorse Saloon on Thursday, December 6 for our Annual YLD Banquet.
September - December, 2012
OYEZ!
NBA/YLD Board Directory
“Service to the Community, Service to the Profession”
2011 - 2012
EXECUTIVE BOARD
PresidentSara [email protected]
President ElectRobb [email protected]
TreasurerErin Palmer [email protected]
Membership DirectorBecca [email protected]
Public Service DirectorLauren Paxton [email protected]
Immediate Past PresidentSarah [email protected]
SecretaryElizabeth [email protected]
Events DirectorRyan [email protected]
Professional Development DirectorJustin [email protected]
MEMBERSHIP
RecruitmentRebecca [email protected]
RecruitmentRussell [email protected]
ABA LiasonMatt [email protected]
TBA LiasonKenney [email protected]
Napier-Looby Bar Association LiasonKinika L. [email protected]
PROFESSIONAL DEVELOPMENT
CLEJeff [email protected]
CLETaylor [email protected]
OYEZGary [email protected]
OYEZNicole [email protected]
OYEZ!
NBA/YLD Board Directory
“Service to the Community, Service to the Profession”
2011 - 2012
EVENT COMMITTEES
SocialRachel [email protected]
SocialAllison [email protected]
Carbolic Smoke BallWill [email protected]
Carbolic Smoke BallColleen S. [email protected]
Race JudicataWill [email protected]
Race JudicataPatrick [email protected]
YLD/VLPATyler [email protected]
OYEZ! The Nashville Bar AssociationYoung Lawyers DivisionQuarterly Newsletter
PUBLIC SERVICE
Mock TrialMatthew [email protected]
Mock TrialRebecca [email protected]
Law WeekAndrew [email protected]
Law WeekMatt [email protected]
HomelessJoel [email protected]
HomelessMike [email protected]
Community OutreachLymari [email protected]
Community OutreachMatt [email protected]