Friends and Tweets and Profiles, Oh My

Legal Ethics and Social Media

Friends and Tweets and Profiles, Oh

My!

© 2013 Mark J. KolberChapel Hill, N.C.

Lawyer-Pilots Bar AssociationWinter Meeting, 2013Villas of Grand Cyprus, Orlando,

Florida

Trends

U.S. social media audience increased from 163.6M unique users to 171.8M

Time spent on social media increased from 88.4 121.1 Billion minutes per person.

32% of people 18-24 use social media in the bathroom.

Trends

Social media use for purchasing decisions on the increase.

Trends

Trends

“Social Care” – using social media to voice questions, issues and complaints.

Consumer-driven marketing and customer service.

30% prefer social media to the telephone.

Facebook remains the leader. 29% post on the company’s page. 28% post on their own page.

Neilson Company, State of the Media: The Social Media Report, 2012 (

http://goo.gl/JNDqb)

http://goo.gl/JNDqb

Trends

2008 Leader Networks/LexisNexis Survey of corporate counsel. 50% belonged to a social network. 29% believe it helps to more quickly find

and evaluate the right legal partners.

The Networks

F Passed 1 billion users in 2012. Email and telephone replacement for

many. Initially used as a personal networking

tool, increasing use for business. Professionalism a challenge for

attorneys: posts about interesting cases mixed with a

cousin’s bachelor party photos.

The Networks

L 170 million accounts. So-called “Facebook for professionals.” Express business focus. “Status” updates can be useful

information. Personal and business profiles Exponential business networking. Business interest groups with questions

and answers.

The Networks

L Twitter Passed 500 million users in 2012. Primarily personal communications. Limited to 140 characters per “tweet.” Your tweets simultaneously go to your

“followers,” who agreed to receive your tweets.

Can potentially set up online communities interested in your content.

The Networks

Blogging Preset templates. Faster and simpler than websites: write

and click. Entry of current developments and other

information in a timely manner. Potentially more work than other social

media tools because you must regularly post updates.

The Issues

Unauthorized Practice of Law. Confidentiality and Loyalty. Advertising. Recommendations and Endorsements. Inadvertent Creation of Attorney-Client

Relationships. Investigation and Communication with

Parties and Witnesses. Judges – Friends and Foes.

The Issues

Developing Law. Ambiguous Rules. Variation among jurisdictions. Multiple “Model Rules” drafts. Issues may not be limited to

“professional” sites but to “personal” sites as well.

Unauthorized Practice of Law

MRPC 5.5 – Unauthorized Practice of Law *(a) A lawyer shall not practice law in a jurisdiction in

violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.

(b) A lawyer who is not admitted to practice in this jurisdiction shall not:(1) except as authorized by these Rules or other law, establish

an office or other systematic and continuous presence in this jurisdiction for the practice of law (emphasis added); or

(2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction

*The ABA Model Rules of Professional Conduct are available at http://goo.gl/JOhhF

http://goo.gl/JOhhF

Unauthorized Practice of Law

“other systematic or continuous presence” Physical presence not required. MRPC 5.5,

Comment 4. One can engage in unauthorized practice “by

telephone, fax, computer, or other modern technological means”

Birbrower, Montalbano, Condon & Frank v. Superior Court, 949 P.2d 1, 5 (Cal., 1998)

Consider use of disclaimers similar to letterhead limitations in multi-jurisdictional firm letterhead.

“Licensed in…” “Practice limited to [jurisdiction]…”

Confidentiality and Loyalty

MRPC 1.6 – Confidentiality of Information(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

Para (b) exceptions Prevent/mitigate substantial harm, crime or fraud. Defend claims against the attorney. Clear conflicts. Secure ethics advice. Compliance with rules or court orders.


MPRC 1.8 – Conflict Of Interest: Current Clients: Specific Rules(b) A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these Rules. May seem obvious but consider:

I’m excited about my first trial!


Do not use social media messaging for attorney-client communications.

Do not use social media to discuss a case. Maintain knowledge of security advances

in communication forms you use. Avoid case discussions on social media

sites. Client or “selected representations” list

with permission only.

MRPC 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 (emphasis added).

Is your Facebook or LinkedIn page “advertising?”

Advertising

Advertising

MRPC 7.3 – Solicitation of ClientsEvery written, recorded or electronic communication from a lawyer soliciting professional employment from anyone known to be in need of legal services in a particular matter shall include the words "Advertising Material" on the outside envelope, if any, and at the beginning and ending of any recorded or electronic communication, unless the recipient of the communication is a person specified in paragraphs (a)(1) or (a)(2).

Probably not a solicitation issue unless used to direct comments to specific people.

MRPC 7.1 – Communication Concerning a Lawyer's ServicesA 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. “Whatever means are used to make known a lawyer's services,

statements about them must be truthful.” MRPC 7.1, Comment 1.

Even truthful reports of achievements “may be misleading if presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained….” MRPC 7.1, Comment 3 .

Advertising

Advertising

MRPC Rule 7.4 – Communication of Fields of Practice and Specialization(a) A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law.(d) A lawyer shall not state or imply that a lawyer is certified as a specialist in a particular field of law… Particular areas of practice (Patent; Admiralty). Certified as a specialist by an approved

organization, and identifies the organization.

Advertising

Status updates about recent cases won; major deals succeeded, etc. Breach of confidentiality and loyalty? Misleading communication creating an

unjustified expectation? Improper indication of certification?

Recommendations and Endorsements

LinkedIn and other sites allow people to “recommend” or “endorse” the work of a another participant.

MRPC 8.4 – MisconductIt is professional misconduct for a lawyer to:

(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.



MRPC 7.1 – Communication Concerning a Lawyer's ServicesA 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.

Developing area – changes in the rules and state variations present a serious problem.


Prior DR 2-101 described certain statements as always being prohibited in advertising including “a testimonial about or endorsement of a lawyer.”

Original MRPC 7.1 dropped the language regarding testimonials but left in other per se prohibitions.

Current MRPC Rule 7.1 contains no “per se” prohibitions and the Comments do not discuss testimonials. “The categorical prohibitions … have been criticized as being overly

broad and have therefore been relocated from text to the commentary as examples.... The Commission believes this approach strikes the proper balance between lawyer free-speech interests and the need for consumer protection. Reporter’s Explanation of Changes, MRPC 7.1, ABA Ethics 2000 Commission (http://goo.gl/zLWXz)”

http://goo.gl/zLWXz


Virginia“This committee adopts the mixed approach, used in Pennsylvania, while prohibiting testimonials regarding results and/or comparisons, it does allow “soft endorsements.” (citations omitted) Examples of “soft endorsements” include statements such as the lawyer always returned phone calls and the attorney always appeared concerned.”

VA State Bar Advertising Opinion A-0113 (2/29/2000) http://goo.gl/kwDJH

http://goo.gl/kwDJH


South Carolina Ethics Advisory Opinion 09-10 (2009). State RPC 7.1 contains the old DR

prohibition against testimonials:“A lawyer shall not make false, misleading, deceptive, or unfair communications about the lawyer or the lawyer's services. A communication violates this rule if it:“(d) contains a testimonial”


South Carolina RPC 8.4(a) “prohibits lawyers from violating

the Rules of Professional Conduct through the acts of another.”

Testimonial: “a statement by a client or former client about an experience with the lawyer.”

Endorsement: “a more general recommendation or statement of approval.”

7.1 prohibits testimonials and “ordinarily also prohibit client endorsements. “


South Carolina Endorsements (not testimonials) may be “presented in

a way that is not misleading nor likely to create unjustified expectations.”

Recommends inclusion of disclaimer or qualifying language.

A lawyer adopting information on a website “becomes responsible for conforming all information in the lawyer’s listing to the Rules of Professional Conduct.”

“This opinion does not take into consideration any constitutional law issues regarding lawyer advertising.”

http://goo.gl/3Dbq6

http://goo.gl/3Dbq6


Colorado Formal Ethics Opinion 83 (1989; Addendum 1993). Code expressly prohibits use of advertising,

solicitation or publicity containing a “testimonial about or endorsement of a lawyer.” DR 2-101(C)(3).

Testimonials and endorsements tend to mislead the recipient into believing that similar

results can be achieved for them. are likely to contain predictions of future success based

on past performance . may involve unverifiable claims about the quality of the

lawyer’s legal services. http://goo.gl/Kvcpn

http://goo.gl/Kvcpn


Utah State Bar Ethics Advisory Opinion No. 09-01 (2009). “The cardinal rule concerning all public communication about a

lawyer and her services is that the communication not be false or misleading.”

Testimonials may be false or misleading if there is a “substantial likelihood” of reaching a “conclusion for which there is no factual foundation or will form an unjustified expectation.”

Inclusion of appropriate disclaimer or qualifying language. “The U.S. Supreme Court has made it clear that public

communication concerning a lawyer’s services (including any form of advertising) is commercial speech, enjoys First Amendment protection, and can be regulated only to further substantial state interests, and then only in the least restrictive manner possible. “

http://goo.gl/m2YRC

http://goo.gl/m2YRC

Inadvertent Creation of Attorney-Client Relationship

MRPC Preamble[A] lawyer should further the public's understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.

Chat rooms, LinkedIn Groups, online forums.

“[T]here is every reason to believe, consistent with the traditions of the profession, that these ethical duties to contribute to making legal information available to the public continue to hold strong here.”

But, “the ethical impetus that motivates lawyers to help the public become aware of legal problems cannot insulate lawyers from the consequences arising from formation of an attorney-client relationship as the result of providing legal advice.”

D.C. Bar Ethical Opinion 316 (2002) (http://goo.gl/CGDfA)


http://goo.gl/CGDfA


Formation is a matter of state substantive law. In general: Retainer or formal agreement not

required. Does the “client” reasonably believe he or

she is receiving legal advice. Is the “client” reasonably relying on even

casually rendered advice? Consider the unauthorized practice

issue.


Distinction between legal advice and legal information. Emphasize for general information only.

“A lawyer who writes or speaks for the purpose of educating members of the public to recognize their legal problems should carefully refrain from giving or appearing to give a general solution applicable to all apparently similar individual problems …; otherwise, the public may be misled and misadvised. Talks and writing by lawyers for non-lawyers should caution them not to attempt to solve individual problems upon the basis of the information...”

New York City Ethics Opinion 1998-2 (1998) http://goo.gl/0DXl7

http://goo.gl/0DXl7


Do not elicit or respond to questions about specific situations.

Discuss general principles and trends, but caution of variations in application by different states and in different circumstances.

Emphasize and re-emphasize the unique quality of legal advice and that what you are is not legal advice.

Recommend that an attorney be sought. Consider disclaimers, but can be undercut by

the lawyer’s actions.

Investigations

Uses Employment background checks. Information about opposing counsel,

judges, witnesses, experts and jurors. Subpoenas to social networking sites?

Wal-Mart obtained subpoena against a burn injury plaintiff’s wife accessing 2-½ years worth of data fro her MySpace and Facebook accounts.

(Washington Post, May 29, 2010) http://goo.gl/q3i6

http://www.washingtonpost.com/wp-dyn/content/article/2010/05/28/AR2010052804853.html

NYS Bar Assn Ethics Opinion 843 (2010) “A lawyer representing a client

in pending litigation may access the public pages of another party's social networking website (such as Facebook or MySpace) for the purpose of obtaining possible impeachment material for use in the litigation (emphasis added).”

http://goo.gl/3MCGX

Investigations

http://goo.gl/3MCGX

Investigations

Philadelphia Bar Assn Professional Guidance Committee Opinion 2009-02 (2009). Attorney asks non-lawyer assistant to

"friend" a witness, without disclosing the reason for the request or the affiliation with the attorney.

Violates 8.4(c) – deceptive communication. Violates 4.1 – false statement of material

fact to the witness.http://goo.gl/AHfip

http://goo.gl/AHfip

Investigations

San Diego County Bar Assn Legal Ethics Opinion 2011-2 (2011).

Employee plaintiff’s attorney sends “friend” request to the Facebook page of two high-ranking but dissatisfied defendant company’s employees to find disparaging remarks. The only information provided is the attorney’s name. Violates Model Rule 4.2 – prohibition of communication

with represented party about the subject of the representation.

Not the same as accessing the person’s public page. Treats the NYS Bar Association opinion as reaching a similar result.

http://goo.gl/EckLI

http://goo.gl/EckLI

Investigations

OK to access public social media pages.

Not OK to “friend” under false pretenses.

Not OK to “friend” parties represented by counsel.

Not OK to get someone else to do it for you.

Judicial Criticism

Ft. Lauderdale attorney reprimanded and fined $1200 for calling a judge an “Evil, Unfair Witch” in a blog.

http://goo.gl/hYbRh (NY Times, September 12, 2009)

http://goo.gl/hYbRh

“Friending” Judges

NYS Judicial Ethics Opinion 08-176 (2009) Judge may join and make use of social media. Nothing “inherently inappropriate about a judge joining

and making use of a social network. A judge generally may socialize in person with attorneys who appear in the judge’s court…” (emphasis added).

Should exercise an “appropriate degree of discretion.” Keep up with features and new developments that

“may impact his/her duties under the Rules.” Consider whether connections, “alone or in combination

with other facts, rise to the level of a ‘close social relationship’ requiring disclosure and/or recusal.”

http://goo.gl/hW4va

http://goo.gl/hW4va


Massachusetts SJC Committee on Judicial Ethics Opinion 2011-6 (December 28, 2011) The Code does not prohibit judges from joining

social networking sites. Must take care to conform activities with the Code. But, “A judge's ‘friending’ attorneys on social

networking sites creates the impression that those attorneys are in a special position to influence the judge. Therefore, the Code does not permit you to ‘friend’ any attorney who may appear before you.”

http://goo.gl/CBPS2

http://goo.gl/CBPS2


South Carolina Advisory Committee On Standards of Judicial Conduct Opinion No. 17-2009 (2009). “A judge may be a member of Facebook

and be friends with law enforcement officers and employees of the Magistrate as long as they do not discuss anything related to the judge’s position as magistrate.” http://goo.gl/7ffJC

http://goo.gl/7ffJC


Supreme Court of Ohio Bd of Commissioners On Grievances and Discipline Opinion 2010-7 (2010). “A judge may be a “friend” on a social networking

site with a lawyer who appears as counsel in a case before the judge. As with any other action a judge takes, a judge’s participation on a social networking site must be done carefully in order to comply with the ethical rules in the Ohio Code of Judicial Conduct.”

Raises the same cautions as the NY opinion about being especially circumspect.

http://goo.gl/GRZro

http://goo.gl/GRZro


Florida Judicial Ethics Advisory Committee Advisory Opinion 2009-20 (2009). A judge may “post comments and other

material on the judge's page on a social networking site, if the publication of such material does not otherwise violate the Code of Judicial Conduct.”

But a judge may not “add lawyers who may appear before the judge as ‘friends’ on a social networking site, and permit such lawyers to add the judge as their friend.’”

http://goo.gl/8Q3QE

http://goo.gl/8Q3QE

“Friending” Judges Cited by Fourth District Court of Appeal in Domville v.

State, No. 4D12-556 (Fla. App., 2012). Defendant sought disqualification of judge who is a

Facebook friend of the prosecutor. Court of Appeal reversed order denying disqualification.

“Domville has alleged facts that would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial...”

Granted certification to the Florida Supreme Court as “a question of great public importance”

“Where the presiding judge in a criminal case has accepted the prosecutor assigned to the case as a Facebook "friend," would a reasonably prudent person fear that he could not get a fair and impartial trial, so that the defendant's motion for disqualification should be granted?”

Judges do not have the unfettered social freedom of teenagers. Central to the public's confidence in the courts is the belief that fair decisions are rendered by an impartial tribunal. Maintenance of the appearance of impartiality requires the avoidance of entanglements and relationships that compromise that appearance. Domville v. State, No. 4D12-556 (Fla. App., 2013), Gross J., concurring specially in certification of question.



Public Reprimand. North Carolina Judicial Standards Commission Inquiry No. 08-234 (April 1, 2009).

Judge presiding over a custody dispute. Judge “friend” of one of the attorneys and not

the other. Discussions about the case by both the judge

and his friend on social media. Independent investigations by the judge into

one of the parties. http://goo.gl/4xErj

http://goo.gl/4xErj