Ethically Navigating Ethically Navigating Facebook, LinkedIn, Facebook, LinkedIn, and Social Media For and Social Media For

the Law Practicethe Law Practice

Steve Mehta, MediatorSteve Mehta, Mediator

Why Are You Here?Why Are You Here?

You….You…. Heard about Heard about

presenter with presenter with dashing good dashing good looks.looks.

Why Are You Here?Why Are You Here?

You….You…. Would like to learn Would like to learn

more legal and more legal and ethical implications ethical implications about social media about social media before jumping in before jumping in with both feet.with both feet.

Today’s SessionToday’s Session 1. What is Social Media? 1. What is Social Media? 2. Why Social Media & Social Networking?2. Why Social Media & Social Networking? 3. The Big Ones - overview3. The Big Ones - overview 4. Uses4. Uses 5. Legal and Ethical Issues5. Legal and Ethical Issues 6. Mistakes 6. Mistakes

What is Social Media?What is Social Media?

It is an on-line conversationIt is an on-line conversation “Online applications, platforms

and media which aim to facilitate interaction, collaboration and the sharing of content”

Social media emphasizes the importance of interaction, the consumer and the community. Power to the People, Social Media

Tracker. Wave 3, 3/08

Why Social Media MattersWhy Social Media Matters LinkedInLinkedIn

45 million users, strongly business-oriented, valued at $1 billion, 45 million users, strongly business-oriented, valued at $1 billion, 1919thth Most Popular Site in U.S. Most Popular Site in U.S.

FacebookFacebook #1 Website in world!#1 Website in world! 668,000 incoming links668,000 incoming links 350 Million Users (12/2/09)350 Million Users (12/2/09) 45 million status updates a day45 million status updates a day

TwitterTwitter Fastest growing social networkFastest growing social network 72.5% of the 44 million Twitter users joined during the first five 72.5% of the 44 million Twitter users joined during the first five

months of 2009. months of 2009. As of 2/09 Twitter had 1382% growth. (that was with 7 million As of 2/09 Twitter had 1382% growth. (that was with 7 million

members)members) Recently turned down $.5 Billion buyout offer from FacebookRecently turned down $.5 Billion buyout offer from Facebook

YouTubeYouTube 44thth Most Popular Site in World Most Popular Site in World Accounts for 25% of all Google searchesAccounts for 25% of all Google searches

Coming soonComing soon Google BuzzGoogle Buzz

Professional Social MediaProfessional Social Media Avvo

JDSupra

Linkedin

Plaxo

Yelp

Google Places

Findlaw

Facebook

Can You Be Googled?Can You Be Googled?

Jurors can and do Google youJurors can and do Google you How visible are you on Google?How visible are you on Google? Do People find the things Do People find the things you wantyou want

to be found when they Google you?to be found when they Google you?

BloggingBlogging Definition: type of Definition: type of

website, with regular website, with regular entries of commentary, entries of commentary, descriptions of events, or descriptions of events, or other material such as other material such as graphics or video. graphics or video.

People read the blog by People read the blog by finding the content on finding the content on internet or subscribing to internet or subscribing to your blogyour blog

People Interact with your People Interact with your blogblog

BloggingBlogging

73% of people using internet have read a 73% of people using internet have read a blog.blog.

U.S.: 23% read daily; 42% read weeklyU.S.: 23% read daily; 42% read weekly

TwitterTwitter

““Blogging on Speed”Blogging on Speed”

Legal Related Uses of Legal Related Uses of Social MediaSocial Media

Increase your presence Increase your presence on the webon the web

Increase social Increase social relationships with relationships with clientsclients

Provide information to Provide information to clientsclients

Update clients on legal Update clients on legal issuesissues

Communicate with Communicate with clients – more and more clients – more and more are messaging directly are messaging directly through the mediathrough the media

Legal Related Uses of Legal Related Uses of Social MediaSocial Media

Learn Information About Your AreaLearn Information About Your Area Network with other professionalsNetwork with other professionals Increase your awareness to mediaIncrease your awareness to media Self PromotionSelf Promotion Research on legal topicResearch on legal topic Research on witnesses/opposing Research on witnesses/opposing

partiesparties

Witness InvestigationWitness Investigation

Trend is evident to investigate Trend is evident to investigate witnesses and parties on social mediawitnesses and parties on social media

Party AdmissionsParty Admissions Statements in Social Media would be Statements in Social Media would be

considered admissible ADMISSIONSconsidered admissible ADMISSIONS Used daily in mediationUsed daily in mediation In courtIn court

Lawyer Gives Examples of Lawyer Gives Examples of Husbands‘ Divorce Cases Husbands‘ Divorce Cases

Undone by FacebookUndone by Facebook

One man who claimed to be unemployed was getting alimony from One man who claimed to be unemployed was getting alimony from his soon-to-be ex-wife. On his Facebook page, however, he identified his soon-to-be ex-wife. On his Facebook page, however, he identified himself as a business owner and described his vacations to exotic himself as a business owner and described his vacations to exotic destinations with his new girlfriend.destinations with his new girlfriend.

Another man in the midst of a divorce claimed he couldn't afford to Another man in the midst of a divorce claimed he couldn't afford to pay child support. Yet his Facebook profile showed him sitting in a pay child support. Yet his Facebook profile showed him sitting in a Ferrari, taking a cruise and selling a piece of property he owned.Ferrari, taking a cruise and selling a piece of property he owned. Story reported by Mark Hansen in ABA JournalStory reported by Mark Hansen in ABA Journal

Party in employment mediation claimed Wrongful Termination but on Party in employment mediation claimed Wrongful Termination but on Facebook stated that it was layoff and that she was gladFacebook stated that it was layoff and that she was glad

Professional Obligation Professional Obligation to Your Clientto Your Client

Advise client of the risk of Advise client of the risk of posting photos and posting photos and informationinformation

Do you advise them to stop Do you advise them to stop posting?posting?

Do you get copies of their Do you get copies of their Facebook and Twitter posts?Facebook and Twitter posts?

Do you tell them to delete Do you tell them to delete their posts?their posts?

Spoliation.Spoliation.

Standard of CareStandard of Care

What is the legal standard? What is the legal standard? Letter?Letter? Is an oral warning sufficient?Is an oral warning sufficient? Is it your duty to look at a client’s social Is it your duty to look at a client’s social

media? media? What about an opposing party?What about an opposing party?

AdvertisingAdvertising

State Bar opinion 2001-155 – Website is communication and not solicitation Must not be false and misleading RPC1-400, B&P 6157.1 Factually Substantiated B&P6158

LA, proposed rules that specifically addressed Internet advertising by attorneys were declared unconstitutional by a U.S. District Court

Must disclose advertising – difficult in a tweet Cross Jurisdictional Practice of Law

AdvertisingAdvertising

The advertisement must adequately disclose The advertisement must adequately disclose the factual and legal circumstances that the factual and legal circumstances that justify the result portrayed in the message, justify the result portrayed in the message, including the basis for liability and the including the basis for liability and the nature of injury or damage sustained, or the nature of injury or damage sustained, or the advertisement must state that the result advertisement must state that the result portrayed in the advertisement was portrayed in the advertisement was dependent on the facts of that case, and dependent on the facts of that case, and that the results will differ if based on that the results will differ if based on different facts. B&P 6158.3different facts. B&P 6158.3

Must be retained for year. 6159.1Must be retained for year. 6159.1

Social Media Profiles Social Media Profiles Might be Subject to State Might be Subject to State

Bar Bar Advertising RulesAdvertising Rules The Tennessee Board = LinkedIn profiles as The Tennessee Board = LinkedIn profiles as

advertising. advertising. State Bar of Texas = LinkedIn and State Bar of Texas = LinkedIn and

Facebook profiles do not need to be filed Facebook profiles do not need to be filed for advertising review. for advertising review.

Often a lawyer’s LinkedIn profile contains Often a lawyer’s LinkedIn profile contains only the exempt information, so it doesn’t only the exempt information, so it doesn’t trigger the advertising rules. 6158.2trigger the advertising rules. 6158.2

Is It Ethical for a PR Is It Ethical for a PR Agency or Others to Write Agency or Others to Write an Unattributed Post for a an Unattributed Post for a

Lawyer’s Blog?Lawyer’s Blog?

Personal Nature of Blog vs. Corporate Nature is Personal Nature of Blog vs. Corporate Nature is determinative.determinative.

Arguably misleading because clients might think Arguably misleading because clients might think that you have written the material and are that you have written the material and are therefore knowledgeable about a particular topic. therefore knowledgeable about a particular topic.

Conflict of Interest and Conflict of Interest and Conflict ChecksConflict Checks

Facebook friends don’t come with a built-in Facebook friends don’t come with a built-in conflicts check, so lawyers have to be careful.conflicts check, so lawyers have to be careful.

Recommending Feature Recommending Feature on LinkedInon LinkedIn

Giving/ReceivingGiving/Receiving Reciprocal – You recommend my back, Reciprocal – You recommend my back,

I’ll do yoursI’ll do yours Any advertisement made on behalf of Any advertisement made on behalf of

a member, which is not paid for by the a member, which is not paid for by the member, shall disclose any business member, shall disclose any business relationship, past or present, between relationship, past or present, between the member and the person paying for the member and the person paying for the advertisement. B&P 6157.3the advertisement. B&P 6157.3

Designation as Expert Designation as Expert on LinkedInon LinkedIn

A LinkedIn profile has a field for “specialties.” A LinkedIn profile has a field for “specialties.” Unless you are certified as a specialist by a state Unless you are certified as a specialist by a state bar accredited authority in your jurisdiction, you bar accredited authority in your jurisdiction, you should leave it blank. ABA Model Rule 7.4(d). should leave it blank. ABA Model Rule 7.4(d). Most State rules Prohibit. 1-400(D)Most State rules Prohibit. 1-400(D)

““My practice focuses exclusively on bankruptcy” My practice focuses exclusively on bankruptcy” rather than “I specialize in bankruptcy.”rather than “I specialize in bankruptcy.”

Website NamesWebsite Names www.bankruptcyspecialist.com www.bestdivorcelawyer.com Misrepresentation Issues identified above Consequences are Bar Discipline

Real Time Real Time Communications – Communications –

or Solicitations?or Solicitations? TwitterTwitter ““If you are looking for a DUI lawyer, I can give you If you are looking for a DUI lawyer, I can give you

my Twitter big break on fees…email me.” my Twitter big break on fees…email me.” contact would violate ethical rules in a number of contact would violate ethical rules in a number of

states.states. ““Just got out of the Cobb County jail. Anyone know Just got out of the Cobb County jail. Anyone know

a good inexpensive DUI lawyer?” The response a good inexpensive DUI lawyer?” The response to to thatthat tweet would be permitted in some states,  tweet would be permitted in some states, because the tweeter asked for a lawyer.because the tweeter asked for a lawyer.

Tweeting you are drafting a MSJ could violate Tweeting you are drafting a MSJ could violate confidentialityconfidentiality

ConfidentialityConfidentiality

““Just talked to my client who totally lied to Just talked to my client who totally lied to me about all the facts.” me about all the facts.”

Date and Time of the tweet gets posted -- Date and Time of the tweet gets posted -- Potential of revealing information to Potential of revealing information to someone who might know that the client someone who might know that the client was meeting with the lawyer that day.was meeting with the lawyer that day.

Location Stamp on Facebook/Social media Location Stamp on Facebook/Social media when you post. when you post.

Ex Parte CommunicationsEx Parte Communications According to a public reprimand, a North Carolina judge According to a public reprimand, a North Carolina judge

engaged in unethical Facebook activity relating to a case engaged in unethical Facebook activity relating to a case being tried before him. During a child custody case, being tried before him. During a child custody case, District Judge B. Carlton Terry Jr. “friended” defense District Judge B. Carlton Terry Jr. “friended” defense counsel, and each of them discussed aspects of the case counsel, and each of them discussed aspects of the case on Facebook, constituting ex parte communications. on Facebook, constituting ex parte communications. Plaintiff’s counsel had indicated she was not on Plaintiff’s counsel had indicated she was not on Facebook. The judge also conducted ex parte online Facebook. The judge also conducted ex parte online research about the plaintiff by Googling her and visiting research about the plaintiff by Googling her and visiting her website.her website.

PretextingPretexting

Friending a witness to obtain informationFriending a witness to obtain information Philadelphia Bar Association issued an opinion that Philadelphia Bar Association issued an opinion that

such pretexting would involve dishonesty, fraud, such pretexting would involve dishonesty, fraud, deceit or misrepresentation on behalf of the lawyer, deceit or misrepresentation on behalf of the lawyer, or the encouragement of such behavior, in violation or the encouragement of such behavior, in violation of the Pennsylvania ethics rules.of the Pennsylvania ethics rules.

C.O.P.R.A.C. Op. 93-131 (lawyer may not indirectly C.O.P.R.A.C. Op. 93-131 (lawyer may not indirectly communicate using a client as a ploy to obtain an communicate using a client as a ploy to obtain an unfair advantage; no bright line in terms of advice unfair advantage; no bright line in terms of advice and guidance to a client in anticipation of party-to-and guidance to a client in anticipation of party-to-party communications).party communications).

Communicating with Communicating with Opposing ClientOpposing Client

CRPC 2-100/ABA 4.2 Cannot Communicate CRPC 2-100/ABA 4.2 Cannot Communicate with represented party re: subject of with represented party re: subject of representation without counsel permissionrepresentation without counsel permission

Friending on FacebookFriending on Facebook What about Twitter where they can publicly What about Twitter where they can publicly

follow you?follow you?

Lack of Candor Toward Lack of Candor Toward the Tribunalthe Tribunal

Facebook posts that are contrary to what Facebook posts that are contrary to what was told to judge. was told to judge.

B&PC 6068(d) and B&PC 6128 require B&PC 6068(d) and B&PC 6128 require California lawyers to be truthful in all California lawyers to be truthful in all statements, whether to the court, opposing statements, whether to the court, opposing parties, clients, or third parties. parties, clients, or third parties.

YouTube VideosYouTube Videos

In Texas, merely including an attorney’s In Texas, merely including an attorney’s contact information on a purely educational contact information on a purely educational video, without soliciting contact, does not video, without soliciting contact, does not constitute advertisement.constitute advertisement.

Advertising RulesAdvertising Rules

Judicial EthicsJudicial Ethics May a judge post May a judge post

comments or material on comments or material on their social networking their social networking page?page?

May a judge have "friends" May a judge have "friends" on their page that happen on their page that happen to be lawyers that appear to be lawyers that appear before them in court?before them in court?

May a committee May a committee campaigning for a judge's campaigning for a judge's candidacy establish a candidacy establish a social networking page on social networking page on behalf of the campaign?behalf of the campaign?

Can a judge do his own Can a judge do his own research on social media?research on social media?

Creating Attorney Client Creating Attorney Client RelationshipRelationship

Depending on the information revealed, an attorney-Depending on the information revealed, an attorney-client relationship could easily be formed over Facebook client relationship could easily be formed over Facebook or in a series of e-mailsor in a series of e-mails

Implied attorney-client relationship is that the Implied attorney-client relationship is that the attorney’s conduct must create a reasonable belief that attorney’s conduct must create a reasonable belief that the attorney will accept representation. See Fox v. the attorney will accept representation. See Fox v. Pollack (1st Dist. 1986) 181 Cal.App.3d 954, 226 Pollack (1st Dist. 1986) 181 Cal.App.3d 954, 226 Cal.Rptr. 532 Cal.Rptr. 532

Could be legal adviceCould be legal advice Fiduciary Duty to prospective clients. Beery v. State Bar Fiduciary Duty to prospective clients. Beery v. State Bar

(1987) 43 Cal.3d 802, 239 Cal.Rptr. 121, 739 P.2d (1987) 43 Cal.3d 802, 239 Cal.Rptr. 121, 739 P.2d 1289; In re Marriage of Zimmerman (1st Dist. 1993) 1289; In re Marriage of Zimmerman (1st Dist. 1993)

Social Media Public Social Media Public ReprimandReprimand

Respondent represented a college student in relation to allegations Respondent represented a college student in relation to allegations that he possessed a controlled substance. that he possessed a controlled substance.

Respondent published the following entry on her blog:Respondent published the following entry on her blog: #127409 (the client’s jail identification number) #127409 (the client’s jail identification number) This stupid kid is This stupid kid is

taking the rap for his drug-dealing dirtbag of an older taking the rap for his drug-dealing dirtbag of an older brother because "he’s no snitch." I managed to talk the brother because "he’s no snitch." I managed to talk the prosecutor into treatment and deferred prosecution, since prosecutor into treatment and deferred prosecution, since we both know the older brother from prior dealings involving we both know the older brother from prior dealings involving drugs and guns. My client is in college. Just goes to show you drugs and guns. My client is in college. Just goes to show you that higher education does not imply that you have any that higher education does not imply that you have any sense.sense.

Respondent knew or should have known that information contained Respondent knew or should have known that information contained in her blog...was confidential, or that it had been gained in the in her blog...was confidential, or that it had been gained in the professional relationship and the revelation of it would be professional relationship and the revelation of it would be embarrassing or detrimental to her client.embarrassing or detrimental to her client.

What about calling the judge an A$$H0LE What about calling the judge an A$$H0LE ““When you become an officer of the court, you lose the full ability When you become an officer of the court, you lose the full ability

to criticize the court,” said to criticize the court,” said Michael Downey, who teaches legal , who teaches legal ethics at the Washington University law school.ethics at the Washington University law school.

ExampleExample Frank R. Wilson, a lawyer in San Diego, Frank R. Wilson, a lawyer in San Diego,

caused a criminal conviction to be set aside caused a criminal conviction to be set aside and sent back to a lower court because of and sent back to a lower court because of his blog postings as a juror. his blog postings as a juror.

Mr. Wilson received a 45-day suspension, Mr. Wilson received a 45-day suspension, paid $14,000 in legal fees and lost his job. paid $14,000 in legal fees and lost his job.

Discovery of Social MediaDiscovery of Social Media

Privacy v. Discovery rightsPrivacy v. Discovery rights Motion practiceMotion practice

Discovery: Stored Discovery: Stored Communications ActCommunications Act

"a person or entity providing an electronic "a person or entity providing an electronic communication service to the public shall not communication service to the public shall not knowingly divulge to any person or entity the knowingly divulge to any person or entity the contents of a communication while in electronic contents of a communication while in electronic storage by that service.“storage by that service.“

In re Subpoena Duces Tecum to AOL, LLCIn re Subpoena Duces Tecum to AOL, LLC, 550 , 550 F.Supp.2d 606 (E.D. Va. 2008), the court quashed a F.Supp.2d 606 (E.D. Va. 2008), the court quashed a subpoena issued by State Farm Insurance Company subpoena issued by State Farm Insurance Company to obtain the e-mail records of two investigators to obtain the e-mail records of two investigators directly from America Online. It held that the directly from America Online. It held that the issuance of the civil discovery subpoena was not an issuance of the civil discovery subpoena was not an exception to the provisions of the act so as to allow exception to the provisions of the act so as to allow the provider to disclose the communications. the provider to disclose the communications.

What About These?What About These?

Social Media IssuesSocial Media Issues Create a policyCreate a policy Look at www.SocialMediaGovernance.comLook at www.SocialMediaGovernance.com Identity theftIdentity theft Defamation (law is behind social media)Defamation (law is behind social media)

Connecting with ClientsConnecting with Clients

Attorney – Client privilegeAttorney – Client privilege Are they clients, friends or Are they clients, friends or

both?both? Check privacy settings and Check privacy settings and

contact settingscontact settings Work product issues?Work product issues?