use of social media in litigation: what are the
TRANSCRIPT
USE OF SOCIAL MEDIA IN LITIGATION: WHAT ARE THE
PERMISSIBLE BOUNDS?
Sponsor: Civil Litigation Section and Young Lawyers Division CLE Credit: 1.0 ethics
Wednesday, June 17, 2015 10:40 a.m. - 11:40 a.m.
Thoroughbred 1-3 Lexington Convention Center
Lexington, Kentucky
A NOTE CONCERNING THE PROGRAM MATERIALS
The materials included in this Kentucky Bar Association Continuing Legal Education handbook are intended to provide current and accurate information about the subject matter covered. No representation or warranty is made concerning the application of the legal or other principles discussed by the instructors to any specific fact situation, nor is any prediction made concerning how any particular judge or jury will interpret or apply such principles. The proper interpretation or application of the principles discussed is a matter for the considered judgment of the individual legal practitioner. The faculty and staff of this Kentucky Bar Association CLE program disclaim liability therefore. Attorneys using these materials, or information otherwise conveyed during the program, in dealing with a specific legal matter have a duty to research original and current sources of authority.
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TABLE OF CONTENTS The Presenters ................................................................................................................. i Use of Social Media in Litigation: What Are the Permissible Bounds? ............................ 1
Introduction to Social Media ................................................................................. 1 Social Media and Its Uses in Litigation ................................................................. 1 Pitfalls to Avoid .................................................................................................... 8
THE PRESENTERS
Christine Trout Trout Law Office, PLLC
1146 Monarch Street Lexington, Kentucky 40513
(859) 685-6316 [email protected]
CHRISTINE TROUT is the managing partner of Trout Law Office, PLLC in Lexington and practices in the areas of business litigation and criminal defense. She received her B.A. from the University of Louisville and her J.D. from the University of Kentucky College of Law. Ms. Trout has served as legal counsel for the Kentucky Department of Financial Institutions, including acting as a Special Assistant United States Attorney prosecuting securities fraud. Prior to that, she served as law clerk to Judge Gregory Van Tatenhove. Ms. Trout serves as a board member on the Lexington-Fayette Urban County Government Economic Development Investment Board, Opportunity for Work & Learning Inc., Prevent Child Abuse Kentucky, University of Kentucky National Alumni Association, and is a member of the Kentucky Bar Association 2015 Annual Convention Planning Committee. J. Kent Wicker Dressman Benzinger LaVelle, PSC 321 West Main Street, Suite 2100 Louisville, Kentucky 40202 (502) 572-2500 [email protected] J. KENT WICKER is a partner with Dressman Benzinger LaVelle, PSC in Louisville and practices in the areas of litigation, white collar defense, and health care fraud. He is a graduate of Duke University, summa cum laude with distinction, and received his J.D., cum laude, from Harvard Law School. Prior to entering private practice, Mr. Wicker served as First Assistant U.S. Attorney and Criminal Division Chief for the Western District of Kentucky. He is a member of the Louisville and Kentucky Bar Associations, National Association of Criminal Defense Lawyers, and American Health Lawyers Association.
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USE OF SOCIAL MEDIA IN LITIGATION: WHAT ARE THE PERMISSIBLE BOUNDS?
Christy Trout and Kent Wicker I. INTRODUCTION TO SOCIAL MEDIA
Social media has revolutionized how we communicate with each other and with the world. It has also created powerful tools to assist litigators in researching, developing, and proving their cases. Social networking is the latest evolution of how the Internet is used in lawyers' lives and daily business. Like any other behavior of lawyers, the use of social media by lawyers in litigation is subject to the ethics rules and regulations of the jurisdictions in which an individual lawyer practices, and it poses pitfalls for the lawyer who uses it.
Social media, as defined here, are internet applications which allow people to create, share or exchange information, ideas, and pictures/videos in virtual communities and networks. They depend on mobile and web-based technologies to create highly interactive platforms through which individuals and communities share, co-create, discuss, and modify user-generated content. Model Rule 3.5 of the Rules of Professional Responsibility defines a related term, Model Rule 3.5, "electronic social media" ("ESM"), which it defines as any "internet-based social media [site] that readily allow[s] account-owner restriction on access." It distinguishes ESM from "websites," which it defines as "publicly accessible Internet media." Social media includes platforms such as Facebook, LinkedIn, Twitter, etc.
Kentucky is no exception to meeting new technologies and applying the Rules of Professional Conduct (as well as the Canons of Judicial Conduct) to them. In general, lawyers use social media like other technology tools – to advertise services, communicate with others, and investigate facts and witnesses. As Kentucky lawyers increasingly use social media in litigation, they will need to be aware of the applicable Rules of Professional Conduct that might affect their use of social media.
II. SOCIAL MEDIA AND ITS USES IN LITIGATION A. Types of Social Media
1. Facebook – an online social networking service where users can create a user profile, add other users as "friends," exchange messages, post status updates and photos, share videos and receive notifications when others update their profiles. Users may also join common-interest user groups, organized by workplace, school or college, or other characteristics. Facebook had over 1.44 billion monthly active users as of March 2015.
2. Twitter – an online social networking service that enables users to
send and read short 140-character messages called "tweets." Registered users can read and post tweets, but unregistered
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users can only read them. As of May 2015, Twitter has more than 500 million users, out of which more than 302 million are active users.
3. Blogs – discussion or informational sites published on the internet,
often by a single author devoted to a particular subject. Most blogs allow visitors to post comments as well.
4. YouTube – a website which allows users to post and view videos.
5. LinkedIn – an online social media site similar to Facebook but
devoted to allowing users to promote professional contacts.
6. Foursquare – a local search and discovery service mobile application which provides a personalized local search experience for its users by taking into account the places a user goes, the things they have told the app that they like, and the other users whose advice they trust.
7. Tumblr – a micro-blogging platform and social networking website
which allows users to post multimedia and other content to a short-form blog and follow other users' blogs.
8. Flikr – an image and video hosting website, allowing users to
upload and embed personal photographs in an online community.
9. Instagram – an online mobile photo-sharing, video-sharing and social networking service that enables its users to take pictures and videos, and share them on a variety of social networking platforms, such as Facebook, Twitter, Tumblr and Flickr.
10. Vine – a short-form video sharing service which lets users record
and edit up to six-second-long looping video clips and revine, or share others' posts with followers. The videos can then be published through Vine's social network and shared on other services such as Facebook and Twitter.
11. Snapchat – a video messaging application enabling users to take
photos, record videos, add text and drawings, and send them to a controlled list of recipients. The sent photographs and videos are known as "Snaps." Users set a time limit for how long recipients can view their submissions, after which they will be hidden from the recipient's device and deleted from Snapchat's servers.
12. Topix – a discussion board website, most popular in small towns,
allowing users to post comments on public and private events anonymously.
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B. Use of Social Media in Litigation
1. Using social media to gather information.
Social media offers a wealth of information about opposing parties, opposing counsel, and your own client. It can be useful to track down potential witnesses, for obtaining statements by opposing parties or witnesses, or for acquiring supporting information for summary judgment motions.
Much information on social media may be obtained with the click of a mouse. Blog posts, Twitter posts, or information posted on the public portions of Facebook or LinkedIn may be seen by anyone with a computer. More private information, though, may only be acquired by using formal discovery tools.
2. Provider subpoenas.
It is important to be aware of the potential legal roadblocks to obtaining information contained in a litigant or witness's social media account by subpoena. The Stored Communications Act, 18 U.S.C. §2701 et seq. ("SCA") provides the most common defense to requests for information.
Section 2701 of the SCA provides as follows:
(a) Offense. – Except as provided in subsection (c) of this section whoever –
(1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or (2) intentionally exceeds an authorization to access that facility; and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system shall be punished as provided in subsection (b) of this section.
(b) Punishment. – The punishment for an offense under subsection (a) of this section is –
(1) if the offense is committed for purposes of commercial advantage, malicious destruction or damage, or private commercial gain, or in furtherance of any criminal or tortious act in violation of the
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Constitution or laws of the United States or any State –
(A) a fine under this title or imprisonment for not more than five years, or both, in the case of a first offense under this subparagraph; and (B) a fine under this title or imprisonment for not more than ten years, or both, for any subsequent offense under this subparagraph; and
(2) in any other case –
(A) a fine under this title or imprisonment for not more than one year or both, in the case of a first offense under this paragraph; and (B) a fine under this title or imprisonment for not more than five years, or both, in the case of an offense under this subparagraph that occurs after a conviction of another offense under this section.
(c) Exceptions. – Subsection (a) of this section does not apply with respect to conduct authorized –
(1) by the person or entity providing a wire or electronic communications service; (2) by a user of that service with respect to a communication of or intended for that user; or (3) In section 2703, 2704 or 2518 of this title.
An electronic communication service ("ECS") is "any service which provides to users thereof the ability to send or receive wire or electronic communications." 18 U.S.C. §2510(15). The term "remote computing service" ("RCS") is defined by 18 U.S.C. §2711(2) as "the provision to the public of computer storage or processing services by means of an electronic communications system." The SCA enumerates several exceptions to the rule that service providers may not disclose the contents of stored messages, including for:
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• Those that are incidental to the provision of the intended service
• Those incidental to the protection of the rights or property
of the service provider • Those made with the consent of a party to the
communication or, in some cases, the consent of the subscriber
• Related to child abuse • Made to public agents or entities under certain conditions • Related to authorized wiretaps • Made in compliance with certain criminal or administrative
subpoenas issued in compliance with federal procedures (18 U.S.C. §§2702(b)(2), 2703)).
See 18 U.S.C. §2702(b). It is not altogether clear whether particular social media providers fall into the SCA, but they will uniformly take the position in responding to subpoenas that they do. The general defense from social media providers is that the SCA prevents a provider from "disclosing the contents of an account to any non-governmental entity pursuant to a subpoena or court order." In fact, courts have generally been disinclined to enforce civil subpoenas against these companies. The most in-depth analysis to-date is found in Crispin v. Christian Audigier, Inc., 717 F.Supp.2d 965 (C.D. Cal. 2010), where the defendant served subpoenas on numerous social media services and the plaintiff moved to quash, claiming protection under the ECPA. The court held that social media services operate as both ECS and RCS providers.
After presenting background on the SCA, the court addressed the primary issue of whether the subpoenas should be quashed under the SCA. Recognizing that no court "appears to have addressed whether social-networking sites fall within the ambit of the [SCA]," the court took a two-step approach. First, the court determined whether Media Temple, Facebook, and MySpace qualified as ECS providers under existing case law. Second, the court asked whether the specific content on these services met the definition of "electronic communications." Ultimately, it concluded that the services operate as ECS and RCS providers at different times, depending on the content at issue.
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For private messages (Facebook private messages, DMs on Twitter, etc.) on social media services, the court really focused on storage:
As respects messages that have not yet been opened, those entities [Facebook, MySpace, etc.] operate as ECS providers and the messages are in electronic storage because they fall within the definition of "temporary, intermediate storage" under §2510(17)(A). As respects messages that have been opened and retained by Crispin, under the reasoning of Weaver and Flagg, and the dicta in Theofel, the three entities operate as RCS providers providing storage services under §2702(a)(2). [See U.S. v. Weaver, 636 F.Supp.2d 769, 770 (C.D. Ill. 2009), Flagg v. City of Detroit, 252 F.R.D. 346, 349 (E.D. Mich. 2008), & Theofel v. Farey-Jones, 359 F.3d 1066, 1070 (9th Cir. 2004).]
For wall posts and other public or quasi-public postings, the court found that, "in the context of a social-networking site such as Facebook or MySpace, there is no temporary, intermediate step for wall postings or comments. Unlike an email, there is no step whereby a Facebook wall posting must be opened, at which point it is deemed received. Thus, a Facebook wall posting or a MySpace comment is not protectable as a form of temporary, intermediate storage." Crispin, 717 F.Supp.2d at 989-90. Eventually, the court came to the conclusion that what matters is whether content posted on social media services is "completely public" or not. Regardless of whether Facebook and MySpace are ECS or RCS providers, the Crispin court cautioned that "a completely public BBS does not merit protection under the SCA." In order to be protected from disclosure, therefore, Facebook wall posts and MySpace comments must not be "completely public." The court distinguished Facebook and MySpace from "completely public" BBS by noting that the users of both websites can limit public access via privacy settings. Similarly, in In re Subpoena Duces Tecum to AOL, LLC, 550 F.Supp.2d 606 (E.D. Va. 2008), for example, the court held that there is no civil subpoena exception to the Electronic Communications Privacy Act ("ECPA") or the SCA that permit the disclosure of the content of communications. In particular, the court held:
Here there is no pertinent ambiguity in the language of the statute. It clearly prohibits any disclosure of stored e-mail, other than as
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authorized by enumerated exceptions. Apple would apparently have us declare an implicit exception for civil discovery subpoenas. But by enacting a number of quite particular exceptions to the rule of non-disclosure, Congress demonstrated that it knew quite well how to make exceptions to that rule.
Id. Disclosure in violation of the SCA can expose the record holder to civil liability. See Theofel v Farey-Jones, 359 F.3d 1066 (9th Cir. 2004) (Because corporation and attorney procured consent by exploiting mistake of which they had constructive knowledge of subpoena's invalidity, district court erred when it dismissed officers' claim for violation of SCA based on such consent.) As is true in most situations, some courts view it differently. For example, a district court in Colorado disregarded the SCA and allowed subpoenas to issue to social media providers. See Ledbetter v. Wal-Mart Stores, Inc., 2009 WL 1067018 (D. Colo. Apr. 21, 2009) (court found that the subpoenas were "reasonably calculated to lead to the discovery of admissible evidence as is relevant to the issues in this case."). In the New York case of Romano v. Steelcase Inc., 907 N.Y.S.2d 650 (N.Y. Sup. 2010), the court found that defendant's request fell within the scope of permissible discovery under New York evidence law and production of said documents did not violate the plaintiff's right to privacy.
3. Discovery requests to parties.
Parties to litigation may have better luck requesting or compelling parties to retrieve their information from their own accounts. Facebook and other social media providers will supply certain information with the consent of the account holder. The SCA does not bar production with "the lawful consent of the originator or an addressee or intended recipient of such communication, or the subscriber in the case of remote computing service." See 18 U.S.C.A. §2703(b)(3).
What must be included in that consent? At a minimum, the following: the full name of the account holder or user of the service from whom you want the records; the person's "user id" or "group id" (if available; this is probably not necessary if the user has an unusual name; it is likely essential if the user's name is at all common). If the user's name is not unusual (this may be unnecessary where the user's name is very uncommon so that it will be easy for the ISP to eliminate all users except the one in whom you are interested), the user's "user id" or "group id"; birth date; and full address as registered with the ISP; for an email account, the email address.
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III. PITFALLS TO AVOID
While information on social media can assist in many aspects of litigation, attorneys should keep in mind that using social media is subject to the same ethical rules as other actions of attorneys. Below are some issues to bear in mind.
A. Contacts with Jurors or the Court
1. A lawyer may not communicate with a member or potential
member of a jury regarding a case. This prohibition includes not just direct messaging, but "wall posts" and other communications which can be seen by jurors.
2. Rule 3.5 reads:
A lawyer shall not:
(a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law; (b) communicate ex parte with such a person as to the merits of the cause except as permitted by law or court order; (c) communicate with a juror or prospective juror after discharge of the jury if: (1) the communication is prohibited by law, local rule, or court order; (2) the juror has made known to the lawyer a desire not to communicate; or (3) the communication involves misrepresentation, coercion, duress or harassment; or (d) engage in conduct intended to disrupt a tribunal.
3. Note that the Local Rules for the Eastern and Western Districts of
Kentucky prohibit making contacts with jurors without leave of court.
4. Jurors, as well, should not be communicating about a trial on
social media. Although courts uniformly advise jurors not to do so, more instances are coming up of jurors using Twitter (or "Tweeting" during trials). See John Schwarz, "As Jurors Turn to Web, Mistrials Are Popping Up." New York Times, March 17, 2009. Available at http://www.nytimes.com/2009/03/18/us/ 18juries.html?_r=1&pagewanted=1.
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5. American Bar Association's Standing Committee on Ethics and Professional Responsibility ("the committee") addressed how lawyers may use social media to learn about jurors in Formal Opinion 466, entitled "Lawyer Reviewing Jurors' Internet Presence." The committee decided that a lawyer may review a juror's postings on websites and social media, so long as the review comports with Model Rule 3.5, which governs lawyers' communications with jurors before, during, and after trial.
The Formal Opinion first distinguishes between "websites," which it defines as "publicly accessible Internet media" and "electronic social media" ("ESM"), which it defines as any "internet-based social media [site] that readily allow[s] account-owner restriction on access." The Formal Opinion includes Facebook, LinkedIn, and Twitter as examples of commonly-used ESM. With the websites/ ESM distinction in mind, the Formal Opinion addresses three distinct situations that a lawyer may encounter: (1) looking at information available to everyone on a juror's social media accounts or website when the juror does not know it is being done; (2) asking a juror for access to his or her social media accounts; and (3) a juror finding out, through a notification feature of the social media platform or website, that the lawyer reviewed publicly available information.
In the first instance, where the attorney merely reviews a juror or potential juror's website or ESM without submitting a request to access such information, no violation of Model Rule 3.5 occurs. According to the committee, "the mere act of observing that which is open to the public" is not ex parte contact. The committee uses helpful "drive-by" analogies to compare each online situation to the real world: "In the world outside of the Internet, a lawyer or another, acting on the lawyer's behalf, would not be engaging in an improper ex parte contact with a prospective juror by driving down the street where the prospective juror lives to observe the environs in order to glean publicly available information that could inform the lawyer's jury selection decisions."
In situations where a lawyer must submit a request to view otherwise private information, the committee determined that such a review is in violation of Model Rule 3.5. For example, a juror may have privacy settings set so that very little information is publicly available. To see his or her full profile (which may include status updates and photos), a lawyer would need to send a friend request to that Facebook user. Sending such a request, in the committee's view, is like an attorney asking a juror for permission to look inside a juror's house – and is considered an ex parte communication.
6. The third circumstance, wherein the juror becomes aware through
a notification feature of the website or ESM that the lawyer has conducted a passive review of the juror's publicly available
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information, does not constitute ex parte communication. To date, LinkedIn is the only form of social media that automatically notifies users when someone has viewed their profile. Of course, that could change in a moment's notice, with the constant proliferation of new sites and the potential for existing sites to change their terms and conditions.
The third kind of occurrence is the most troublesome from an ethics perspective. The committee believes that in this situation "[t]he lawyer is not communicating with the juror; the ESM service is communicating with the juror based on a technical feature of the site." In other words, sticking with the drive-by analogy, it is like a neighbor telling a juror the lawyer just drove down the street. But, note that not everyone agrees with the committee. In 2012, the Association of the Bar of the City of New York Committee on Professional Ethics ("ABCNY") concluded that a network-generated notice informing a juror that the lawyer has reviewed his or her social media page was a prohibited communication. The New York County Lawyers' Association Committee on Professional Ethics reinforced ABCNY's conclusion, holding that even an inadvertent contact with a prospective or sitting juror in the form of an automatic notification could be an ethical violation. Both associations stopped short of saying that such inadvertent contact with jurors would lead to discipline. The committee mentioned these precedents in the formal opinion, but rejected their conclusions.
The Formal Opinion addresses, but does not conclusively answer, what a lawyer is to do when he or she becomes aware of juror misconduct online. "Model Rule 3.3 and its legislative history make it clear that a lawyer has an obligation to take remedial measures including, if necessary, informing the tribunal when the lawyer discovers that juror has engaged in criminal or fraudulent conduct related to the proceeding." When a juror engages in improper conduct that falls short of being criminal or fraudulent, a lawyer's affirmative obligation is less clear. According to the Formal Opinion, in certain instances, applicable law might treat improper jury activity (such as violating a court ordered ban on ESM during trial) as conduct that triggers a lawyer's duty to take remedial action. Given the lack of a hard-and-fast rule when it comes to improper conduct, some lawyers might think it is better to ignore jurors' social media in order to avoid potentially problematic ethical issues. Indeed, there are some lawyers who shun social media altogether because they believe it is fraught with hazards.
Although the Kentucky Supreme Court has not directly addressed the nature of a lawyer's duties with respect to juror social media activity during trial, the Court has made it clear that jurors must be truthful in voir dire about social media use if asked, and trial courts must afford lawyers sufficient opportunity to explore the nature of
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juror social media relationships with litigants during voir dire. For example, in Sluss v. Com., 381 S.W.3d 215 (Ky. 2012), the Court remanded a criminal case for a post-conviction hearing into the nature of two jurors relationships with the family of the victim where (1) those two jurors were not truthful during voir dire about those relationships; and (2) the court did not afford defendant's counsel a sufficient opportunity to explore those relationships during voir dire.
6. Similarly, a lawyer could not have an ex parte contact with the
court through social media when he could not have that contact directly.
B. Contacts with Opposing Parties
1. Rule 4.2 reads: "In representing a client, a lawyer shall not
communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order."
2. Thus, a lawyer should not use social media to communicate
regarding his or her representation of a client with a person who the lawyer knows is represented by counsel unless he or she has the appropriate consent, court order, or legal authority to do so.
3. Again, to the extent that a Facebook page is public, or that a
Twitter feed is public, a lawyer may read the public information without violating the rule.
4. Regardless, a lawyer may not communicate in a dishonest way.
Rule 4.1 provides: "In the course of representing a client a lawyer: (a) shall not knowingly make a false statement of material fact or law to a third person; and (b) if a false statement of material fact or law has been made, shall take reasonable remedial measures to avoid assisting a fraudulent or criminal act by a client including, if necessary, disclosure of a material fact, unless prohibited by Rule 1.6."
a. Under this rule, a lawyer conceivably could not create a
fake account on a social media website for the purpose of communicating with or finding out about another party, witness, third person, etc. At least one disciplinary authority has acted on this type of behavior. The Philadelphia Bar Association Professional Guidance Committee, based in part upon rules similar to Kentucky's Rule 4.1, advised that a lawyer who wanted to have a third party "friend" (a person whose permission was required to be his or her "friend" through Facebook and MySpace) be a witness, could not do so. Opinion 2009-02 (March 2009).
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b. Also, people working on the lawyer's behalf (staff, investigators, etc.) are prohibited from doing this, and could cause the lawyer trouble if the lawyer knew about it. See Rule 5.3.
C. Communications with Third Persons
Lawyers also have ethical responsibilities in their dealings with third parties. Rule 4.3 provides:
In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the mis-understanding. The lawyer shall not give legal advice to an unrepresented person. The lawyer may suggest that the unrepresented person secure counsel.
D. Communications with or about Clients
Communication with clients through social media is a communication and writing for purposes of the Kentucky Rules of Professional Conduct. See Rule 1.0(n).
Rule 1.6 governs the lawyer's obligation to keep information related to representation of the client confidential unless the exceptions set forth under that rule exist. Communications via a direct message or similar means using social media (e.g. direct messages through Facebook are allowable) is permissible but should be done with caution. See KBA Ethics Opinion E-403 (March 1998).
Lawyers may not blog about their clients, or otherwise give out confidential information about their clients or the case unless the client gives informed consent. Rule 1.6. Note that the rule is broader than the attorney-client privilege. What is confidential will depend on the case and the circumstances.
E. Communications with Potential Clients
1. It is inevitable when using social media that you will receive an
inquiry from a person online to represent them regarding a matter. In that case, Rule 1.18 potentially kicks in.
2. Rule 1.18, Duties to prospective client, provides:
(a) A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.
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(b) Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule 1.9 would permit with respect to information of a former client. (c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d).
(d) When the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if:
(1) both the affected client and the prospective client have given informed consent, confirmed in writing, or; (2) the lawyer who received the information took reasonable measures to avoid ex-posure to more disqualifying information than was reasonably necessary to determine whether to represent the pro-spective client; and
(i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and (ii) written notice is promptly given to the prospective client.
F. Communications with Outside World (e.g. Trial Publicity)
1. Lawyers using social media may want to use it to highlight matters
in which they are involved. In addition to issues regarding confidentiality and honesty, the lawyer who wants to post about their cases should read the Kentucky rule regarding trial publicity as a good measure of what to say or not say regarding a matter.
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2. SCR 3.130(3.6) reads:
(a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.
(b) Notwithstanding paragraph (a), a lawyer may state:
(1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved; (2) information contained in a public record; (3) that an investigation of the matter is in progress; (4) the scheduling or result of any step in litigation; (5) a request for assistance in obtaining evidence and information necessary thereto; (6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and (7) in a criminal case, in addition to subparagraphs (1) through (6):
(i) the identity, residence, occupation and family status of the accused;
(ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person;
(iii) the fact, time and place of arrest; and
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(iv) the identity of investigating and arresting officers or agencies and the length of the investigation.
(c) Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.
(d) No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a).
G. Advertising Rules Considerations
1. The Attorney Advertising Rules in Rules 7.01-7.40 apply to the
use of social media by attorneys.
a. Rule 7.02(1) defines an "advertisement" as "any information or communication containing a lawyer's name or other identifying information." If you have your name and the fact you are a lawyer on your Facebook page or your Twitter profile, you've engaged in advertising within the meaning of the ethics rules. If a communication promotes your law practice in any way, it's advertising, regardless if there's an "ask" in the communication.
b. The real question is how the ethical rules regarding
advertising apply.
2. Keep in mind the general advertising rule in Rule 7.15 – no communications may be false or misleading.
a. For example, the social media site LinkedIn is most likely
exempt from the advertising rules pursuant to Rule 7.02(1)(d), which exempts regularly-published professional directories from the definition of "advertising."
b. However, LinkedIn allows for connections to "recommend"
you and praise your work. Not only would a post of that nature kick a LinkedIn profile out of the exemption, it would also trigger a duty on the attorney's part to make sure that the "recommendation" is factual and does not create unjustified expectations in violation of Rule 7.15(b).
3. Be aware of how the submission requirement of Rule 7.05 and the
disclaimer requirements of Rule 7.25 may apply to the particular type of social media you use.
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a. If you tweet your thoughts about the law and law practice, those tweets would be advertisements within the meaning of Rule 7.02(1). Rule 7.25 requires the use of the disclaimer "THIS IS AN ADVERTISEMENT" on all advertisements. Does every tweet need to contain this disclaimer?The current position of the Attorneys' Advertising Commission is no per the exception in Rule 7.02(1)(j), so long as your Twitter profile page contains the disclaimer. Same for Facebook – wall posts do not have to contain the disclaimer so long as your profile has it.
b. And, consistent with the Rule 7.02(1)(j) exception, only
your Twitter or Facebook profile must be submitted to the Attorneys' Advertising Commission pursuant to Rule 7.05. You do not have to submit each and every Facebook wall post or tweet.
4. Remember that direct contact using social media must strictly
comply with the direct contact requirements in Rule 7.09.
H. Miscellaneous/Parting Thoughts
1. Above all, be honest in using social media. Honesty is a duty of all Kentucky lawyers. See SCR 3.130(4.1).
2. If you manage others who use social media, consider preparing
an office policy regarding the use of social media in the office. It can help mitigate any dangers regarding your responsibility and potential liability for the social media habits of staff.
3. Conflicts of interests and "friends." A lawyer, when deciding
whether to represent an individual, should consider whether his "friending" of someone else would give rise to the need to decline representation of the potential client.
4. Social media is a young technology (relatively speaking to the
practice of law) and, accordingly, has not been tackled extensively by legal ethics authorities (Bar organizations, ethical and discipline committees, and academics). The landscape is, and constantly will be, changing.
5. As noted by the commentary to the Kentucky Rules of
Professional Conduct, Kentucky's ethics rules are "rules of reason." Common sense should always be one of your guides regarding whether or not to do something with social media in your law practice.
6. When in doubt, seek guidance. The Kentucky Bar Association has
an Ethics Committee and the Ethics Hotline. When a problem might arise, use them.
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NOTES
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