ATTORNEY ETHICS IN SOCIAL MEDIA â€“ BLOGS, FACEBOOK, TWITTER

ATTORNEY ETHICS IN SOCIAL MEDIA – BLOGS, FACEBOOK, TWITTER,

YOUTUBE AND MORE

First Run Broadcast: January 28, 2011

Live Replay: November 17, 2011

1:00 p.m. E.T./12:00 p.m. C.T./11:00 a.m. M.T./10:00 a.m. P.T. (60 minutes)

Social media – LinkedIn, Blogs, Facebook, YouTube, Twitter and more – has permeated

the ways attorneys gather and share information, communicate with each other and

clients, and portray themselves to the public. All of this opens up substantial new

questions about how attorney ethics rule apply in this new and untested area. Are attorney

or law firm profiles on LinkedIn subject to attorney advertising rules? Can an attorney

investigate and gather information about a witness, party, juror or even the judge through

Facebook? How do the ethics rules apply when attorneys blog about themselves or their

area of law? These any many more questions will be addressed in this discussion of how

attorney ethics rules apply in the age of social media.

Advertising & solicitation – What can you do and say on LinkedIn, Facebook and

blogs? What’s impermissible puffing? What’s advertising?

Investigations – can you use social media to learn about parties, witnesses, jurors,

the judge?

Employment issues – can you gather information about job applicants or problem

employees?

Confidentiality and the privilege – how can you protect your client from waiving

the privilege?

Tips for avoiding liability in the ethical minefield of social media

Speakers:

Michael E. Lackey is a partner in the Washington, D.C. office of Mayer Brown, LLP,

where he has an extensive litigation practice representing companies and individuals in

federal court and has developed a specialty in advising clients on a wide range of e-

discovery issues. He is an advisory board member of the Georgetown University Law

Center Advanced E-Discovery Institute and serves as an Adjunct Professor of Law at

George Washington University Law School. Before entering private practice, he served

as a judicial clerk to Judge Jacques L. Wiener, Jr. of the U.S. Court of Appeals for the

Fifth Circuit. Mr. Lackey received his B.S. from the Massachusetts Institute of

Technology and his J.D. from the George Washington University Law School.

Gregg M. Lemley is a partner in the St. Louis office of Ogletree, Deakins, Nash, Smoak

& Stewart, P.C., where he has an extensive labor and employment law and related

commercial litigation practice. He represents employers in a wide range of litigation

matters in both state and federal court in disputes involving discrimination based on race,

sex, age, religion, disability, national origin and the FMLA, sexual and racial harassment,

and retaliation. Mr. Lemley also has a substantial practice assisting employers in the

development, implementation and application of harassment, drug testing, family medical

leave and a wide range of other personnel policies. Mr. Lemley received his B.A. from

Webster University and his J.D. from Washington University School of Law.

PROFESSIONAL EDUCATION BROADCAST NETWORK

Speaker Contact Information

Attorney Ethics in Social Media – Blogs, Facebook, Twitter, YouTube and More

Michael E. LackeyMayer Brown, LLP - Washington, D.C.(o) (202) [email protected]

Gregg M. LemleyOgletree, Deakins, Nash, Smoak & Stewart, P.C. - St. Louis(o) (314) [email protected]

Mayer Brown is a global legal services organization comprising legal practices that are separate entities ("Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP, a limited liability partnership established in the United States;Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales; Mayer Brown JSM, a Hong Kong partnership, and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with whichMayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.

PEBNEthical Issues of Social Media

Michael Lackey, Partner202 263 [email protected]

January 28, 2011

2

Ethics in the Context of Social Media

• Agenda

– What Is Social Media?

– How Is Social Media Being Used in Litigation and GovernmentInvestigations?

– What Are the Ethical Issues Associated with the Use of SocialMedia?

3

Ethical Issues and the Use of Social Media

• Proliferation of sources: Facebook, Twitter, MySpace,LinkedIn, Legal OnRamp, YouTube, Plaxo, Digg,FourSquare, not including those created withinorganizations

• Facebook has more than 600 million users and growing

• More than 70% of lawyers are members

• For millenials, email is now passé; some universities nolonger giving email accounts

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• Powerful tool– Creation and protection of brand

– Tremendous credibility: Nielsen study found that 70% ofinternet users trust online recommendations

– Reach clients and potential clients

• Investigative tool

• But use with care– A legal “wild west” that can raise ethical issues

– ABA Ethics Committee recently asked members if they wantguidance on these issues

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• “Adopting” information about you or your firm on anindependent web site that collects comments frompeers and/or clients (e.g., Avvo, etc.)– Ethical issues?


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“Adopting” a listing• Ok, but beware of issues like those discussed in SC Ethics

Advisory Op. 09-10:– the lawyer must monitor the “claimed” listing to make sure all

comments are in conformity with the ethical rules, especiallythe rules for attorney advertising writing of things liketestimonials, client endorsements that create unjustifiedexpectations, and comparisons

• Be careful when linking to another site!


7

“Recommendations”• LinkedIn allows parties to “recommend” the work of a

another participant. Issues?

• What about asking a client to recommend your work?


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• Be mindful of rules that place limitations on the use andcontent of testimonials

• Model Rule 4.1 (duty of candor) prohibits the making of afalse statement of material fact to a third person• Beware of possible exaggerations regarding your biography,

experience, etc.

• What about announcing on Facebook or LinkedIn that youjust won a big jury trial or negotiated a big deal?


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• Depending on the rules in your jurisdiction, this couldrequire you to add a disclaimer along the lines of“results will vary in each case” or similar language.

• A related issue, depending on the content of your blogsor tweets, could they be governed by your state’srestrictions on lawyer advertising? If so, what are yourobligations?


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• Texas: must file video postings seeking clients with theAdvertising Review Committee

• Connecticut: sending LinkedIn invitation that links topage describing law practice is an advertisement subjectto all relevant rules

• LinkedIn allows users to provide professionalinformation under “specialties,” are there any issueswith that?


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• Depending on the content, it could run afoul of bar rules,such as Illinois Rule 7.4(c) and NY Rule 7.4(a), thatprohibit attorneys from claiming they are “specialists” ina certain field


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Friending Issues• Are there are issues with respect to whom an attorney

can friend?


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• In most jurisdictions, a judge and attorney who appearsbefore the judge can be “friends”

• NY Op. 08-176 (2009)

• SC Op. 17-2009 (2009)

• Ky. Op. JE-119 (2010)

• Ohio Op. 2010-7 (Dec. 3, 2010)

• But NOT in Florida, Op. 2009-20 (2009)– A judge cannot lend the prestige of her office to advance the

private interests of others or convey an impression that someare in a special position of influence


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• Other friending issues with judges?

• In re Public Reprimand of Terry, Inquiry No. 08-234 (Apr.1, 2009)

• N.C. child custody and support case– Judge friended defense counsel and saw information posted by

the defense counsel about the case:• Asking how he could prove the negative that his client did not have

an affair

• Noting that he had a wise judge (to which the judge respondedthat he had two very good parents to choose from)

• Asking how long the trial would last


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• Blogging and other interactive media

• Protect Confidential Information

• Duty to protect client confidences, avoid waiver ofattorney-client or other privileges

• One attorney, an assistant public defender, has alreadyfaced disciplinary action for publishing information on ablog about her cases

– Disparaging judges is a frequent theme (“Evil, UnfairWitch,” “Judge Clueless”)



• LinkedIn allows users to post and answer questions;bloggers and tweeters often address legal issues;and sites like “Counsel.net” allow users to seekanswers to legal questions.

• This is a particularly risky area. Any issues?

16

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Conflicts of Interest• With whom are you communicating?

– What if it is with a party with an adverse interest to a client ofthe firm? (Model Rules 1.7, 4.2)

• Other issues?


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Inadvertent Creation of an Attorney-Client Relationship• The discussion could lead to a situation where a

“prospective” client relationship is formed, which hasseveral consequences

• Must keep that information confidential (Model Rule1.18)

• Obtaining this confidential information could lead todisqualification with respect to existing clients whowould have an interest in knowing that information


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• Depending on the circumstances, this could run afoulof rules prohibiting the unlicensed practice of law – orit could inadvertently create an attorney-clientrelationship

• An organization needs a good policy to address theseissues – things to consider– Keep it general

– Restrict recipients, follower, etc.

– Use a disclaimer (“general informational purposes”)

– Do not post confidential information . . . .


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• Beware of advertising issues

• Be careful with judicial relationships

• Avoid deception and act transparently

• Keep confidences confidential

• Establish and follow a policy for interactive contact


Mayer Brown is a global legal services organization comprising legal practices that are separate entities ("Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP, a limited liability partnership established in the United States;Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales; Mayer Brown JSM, a Hong Kong partnership, and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with whichMayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.

PEBNEthical Issues of Social Media

Michael Lackey, Partner202 263 [email protected]

January 28, 2011

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ATTORNEY ETHICS IN SOCIAL MEDIA â€“ BLOGS, FACEBOOK, TWITTER