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#ETHICS AND SOCIAL MEDIA IN 2019:
FROM ADVERTISING TO TRIAL
CLE Credit: 1.0 Ethics
Sponsor: KBA Young Lawyers Division Thursday, June 13, 2019
2:35 – 3:35 p.m. Combs-Chandler Galt House Hotel
Louisville, 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 judgement pf the induvial 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 the original and current sources of authority.
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Kentucky Bar Association
TABLE OF CONTENTS
The Presenters ................................................................................................................. i
#Ethics and Social Media in 2019: From Advertising to Trial ........................................... 1
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THE PRESENTERS
Matthew W. Barszcz Dinsmore & Shohl LLP
101 South 5th St #2500 Louisville, KY 40202
(502) 540-2373 [email protected]
MATT BARSZCZ is an attorney with Dinsmore & Shohl and focuses his practice in the areas of labor and employment. Mr. Barszcz routinely advises employers and helps defend matters involving Title VII of the Civil Rights Act, the Family and Medical Leave Act, the Americans with Disabilities Act, the Kentucky Civil Rights Act, the Fair Labor Standards Act, and the Kentucky Wage and Hour Act. He earned his undergraduate degree from the University of Kentucky and his J.D. from the University of Kentucky College of Law. With today’s constantly changing needs for employee policies, Mr. Barszcz has given numerous presentations on social media policies, including guidance on company policies and discipline, for employers. Caroline L. Pieroni Dinsmore & Shohl LLP 101 South 5th St #2500 Louisville, KY 40202 (502) 540-2373
CAROLINE PIERONI is a member of the Litigation Department, focusing her practice on employment litigation and advice, general business litigation (including trade secret and non-compete disputes and defense of consumer claims), and First Amendment and media law. In the employment realm, she offers human resources and legal risk training to clients, including small, medium and large employers in Kentucky, and national and international companies with operations in Kentucky. She also defends claims brought in federal or state court or before administrative agencies related to discrimination, wage and hour violations, the Americans with Disabilities Act and the Family and Medical Leave Act. Finally, she represents media companies in defamation and privacy lawsuits and advises them on proper enforcement of Kentucky’s Open Meetings and Open Records Acts. Ms. Pieroni was previously a reporter for The Courier-Journal in Louisville, Kentucky. Prior to joining Dinsmore, she served as a judicial law clerk to the Hon. John G. Heyburn, II of the U.S. District Court for the Western District of Kentucky. Ms. Pieroni earned her undergraduate degree from Western Kentucky University and her J.D., cum laude, from Brandeis School of Law at the University of Louisville.
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#ETHICS AND SOCIAL MEDIA IN 2019: FROM ADVERTISING TO TRIAL Matthew W. Barszcz and Caroline L. Pieroni
I. WHY USE SOCIAL MEDIA AT ALL?
A. Because You Will Be a Better Advocate – Also, Some Day You Might Have To
Accessing a social media page open to all members of the public is ethically permissible. Social media evidence is discoverable like any other evidence and admissibility is determined by the court. If you are not considering the use of social media in your litigation practice, consider whether you should, or whether not doing so presents a competence issue.
1. SCR 3.130(1.1) – Competence.
“A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”
2. August 2012 change to comments on ABA Model Rule of
Professional Conduct 1.1 added a requirement to keep abreast of “the benefits and risks associated with relevant technology.” On January 1, 2018 the Supreme Court of Kentucky adopted this language as well, becoming the 30th state to do so.
3. American Bar Ass’n Comm. on Ethics & Prof’l Responsibility,
Formal Op. 466 (2014): “As indicated by [ABA Rule of Professional Conduct] Rule 1.1, Comment 8, it is important for a lawyer to be current with technology. While many people simply click their agreement to the terms and conditions for use of an [electronic social media] network, a lawyer who uses an [electronic social media] network in his practice should review the terms and conditions, including privacy features – which change frequently – prior to using such a network.”
4. If the lawyer herself is not competent to handle the intricacies of
social media, she may rely, as appropriate, on other lawyers or professionals to gain that competence.
B. There Are Numerous Benefits to Using Social Media in Your Practice
1. You can use social media to decide whether to take on a client. For
example, if you are considering representing an individual with an alleged disability due to a back injury, you may want to see if the potential client has posted videos of herself walking around a pool deck on her hands!
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Such a review would go hand-in-hand with the Kentucky Supreme Court Rule of Professional Conduct 3.1 that says “a lawyer shall not knowingly bring or defend a proceeding or assert or controvert an issue therein, unless there is a basis in law or fact for doing so that is not frivolous… .”
2. You can also use social media to collect information about an
adverse party that could allow you to defeat certain claims, limit damages, or show that a person is not truthful.
C. There are also duties related to use of social media that include (in addition
to the others referenced below) advising your client to maintain and not delete social media evidence. (Advising the client to make the settings private is OK.)
1. Do not advise your client to take down a social media post that could
be relevant and is not otherwise preserved.
a. SCR 3.130(3.4) – Fairness to Opposing Party and Counsel.
i. “A lawyer shall not unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act….”
ii. Example: Allied Concrete Co. v. Lester, 736 S.E.2d
699 (Va. 2013) (Judge orders attorney to pay $542,000 for advising his client to remove photos from his Facebook profile, and then lie about it, in an attempt to keep photos and other evidence from being used by the opposing side. Client ordered to pay $180,000 for obeying the advice). Lawyer’s license was suspended for five years by the Virginia bar.
iii. Example: Painter v. Atwood, 2014 U.S. Dist. LEXIS
35060, 2014 WL 1089694 (D. Nev. March 18, 2014) (judge orders adverse inference instruction to be given to jury related to Facebook posts deleted by plaintiff).
iv. Example: Hosch v. Bae Sys. Info. Solutions, Inc.,
2014 U.S. Dist. LEXIS 57398, 2014 WL 1681694 (E.D. Va., April 24, 2014) (dismissal of lawsuit with prejudice after plaintiff deleted relevant evidence, including social media evidence).
v. Example: Howell v. Buckeye Ranch, Inc., 2012 U.S.
Dist. LEXIS 141368, 2012 WL 5265170 (S.D. Ohio,
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Oct. 1, 2012) (noting the obligation to preserve social media evidence and allowing discovery of content related to claims and defenses).
b. SCR 3.130(3.3) – Candor Toward the Tribunal may also be
implicated if the attorney engages in taking down, hiding, or otherwise altering a social media post or knowingly allowing a client to do so.
2. You may want to collect social media evidence in order to
strengthen your client’s case.
Attorneys and paralegals can obtain publicly available information and other information subject to the rules above. You can also seek it in discovery. But how far can you go?
a. You may not be able to get usernames and passwords to
collect social media content.
Example: The Supreme Court of Kentucky said in an unpublished criminal case, Handle v. Commonwealth, 2013 Ky. Unpub. LEXIS 75, at *19-22 (Ky. Dec. 19, 2013), that a trial court did not abuse its discretion when it refused a motion by defense counsel to turn over the username and password for Facebook and MySpace accounts of a victim. Defense counsel requested the information after speculating that posts might reveal information about whether the victim was keeping her story straight. Defense counsel was permitted to cross-examine the victim about some related Facebook posts, but declined to do so.
b. Courts tend to give some access to social media content in
discovery, but not all. Consider narrowly tailored requests.
i. Example: EEOC v. Simply Storage Mgmt., LLC, 270 F.R.D. 430, 432 (S.D. Ind. 2010) (permitting access to plaintiff’s social media content beyond the events described in plaintiff’s complaint, in order to determine whether the social media content shed light on the plaintiff’s emotional state, including whether some event other than sexual harassment by a supervisor might have caused emotional distress); see also Locke v. Swift Transp. Co. of Ariz., LLC, 2019 U.S. Dist. LEXIS 17412, 2019 WL 430930 (W.D. Ky. Feb. 4, 2019) (permitting discovery of some but not all social media content); but see Thompson v. Coleman, 544 S.W.3d 635, 639 (Ky. 2018) (trial court order giving broad authority to search social media accounts not sufficient for issuance of writ, and obtaining social
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media evidence for a one-year time period was not unreasonable).
ii. Example: Tompkins v. Detroit Metropolitan Airport,
278 F.R.D. 387, 388-89 (E.D. Mich. 2012) (holding that private information on a social media account is discoverable and not privileged or protected from production by a common law right of privacy, but refusing access to private Facebook content and posts when the public content available did not suggest that the plaintiff was engaging in physical activities she said she could not perform).
II. DON’T GET ENSNARED IN AUTHENTICATION ISSUES …Unless you want to be a witness in your own case.
A. Rule: You must provide evidence sufficient to support a finding that the matter in question is what its proponent claims. KRE 901(a); see also Fed. R. Evid. 901(a).
1. The proponent’s burden, however, is “slight,” requiring only a “prima
facie showing.” Ordway v. Commonwealth, 352 S.W.3d 584, 593 (Ky. 2011).
2. A trial court can admit an item so long as it finds sufficient proof has
been presented from which a jury may reasonably deem an item to be what it is proclaimed to be. Robert G. Lawson, The Kentucky Evidence Law Handbook, 7.00 at 495 (4th Ed. 2003).
B. Two Types of Authentication Issues May Arise with Social Media Posts: 1)
authentication of the download, and 2) authentication of the post’s author.
1. A download can be authenticated by the downloader, which ideally should not be the attorney, because authentication may require testimony from the collector of the post. As such, you should consider using a third-party provider, or possibly a paralegal or staff person.
a. See United States v. Thomas, 701 Fed. Appx. 414, 418-19
(6th Cir. 2017) (upholding admission of evidence under federal rules where police lieutenant downloaded photos from Facebook and Instagram); Simmons v. Commonwealth, 2013 Ky. Unpub. LEXIS *7-8 (Ky. 2013) (evidence admissible where non-party witness testified to his download of Facebook messages and law enforcement obtained documents from Facebook via search warrant). See also Thompson v. Coleman, 544 S.W.3d 635, 638 (Ky. 2018) (noting use of third-party provider and rejecting argument that the producing party should be able to view
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the content from the third-party provider and object before permitting it to be shown to the requesting party).
b. SCR 3.130(3.7) – Lawyer as Witness.
i. “A lawyer shall not act as an advocate at a trial in
which the lawyer is likely to be a necessary witness unless:
(a) The testimony relates to an uncontested
issue; (b) The testimony relates to the nature and value
of the legal services rendered in the case; or (c) Disqualification of the lawyer would work
substantial hardship on the client.”
ii. Under Moss. v. Commonwealth, 949 S.W.2d 579, 582 (Ky. 1997), if the facts related to the authentication are uncontested, the lawyer may be able to testify about them without being disqualified.
2. A post’s author can obviously be authenticated by the author
herself, or in other creative ways.
a. Admission by the party is the most straightforward option. You can attempt to authenticate the posts or messages through discovery or stipulation.
b. Other options include: Requests for Admission, Requests
for Production, Deposition Testimony, or Stipulation of Authenticity.
c. In the absence of these methods, you may have to get
creative.
i. Testimony from a person who saw the creator make the page or post.
ii. Testimony regarding a search of the creator’s hard
drive. iii. Testimony that only the creator knew the password
of the account. iv. Testimony regarding distinctive content of a post
that only the creator would know.
d. In terms of direct messages (which are like emails), you can use testimony of another party who received a private direct
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message. See Kays v. Commonwealth, 505 S.W.3d 260 (Ky. App. 2016) (admitting Facebook direct messages where one party to the conversation authenticated them); Simmons v. Commonwealth, 2013 Ky. Unpub. LEXIS *7-8 (Ky. 2013) (same). See also Gross v. Commonwealth, 2018 Ky. Unpub. LEXIS 20 (Ky. March 22, 2018) (unpublished) (upholding use of Facebook messages to show prior bad acts and intent in criminal trial).
e. It is notoriously difficult to get the documents directly from
Facebook in civil cases. But, even if you do, and even if the documents are authenticated as business records, that does not prove who wrote them.
III. LIKE A FRIEND: CONTACT WITH REPRESENTED PARTIES AND
UNREPRESENTED INDIVIDUALS
A. A Lawyer Can Utilize Social Media Data of a Represented Party but Cannot Use Social Media to Contact that Party
KBA Ethics Opinion E-434 (Nov. 17, 2012) “A lawyer may access or otherwise use the social network site of a third-person to benefit a client, as long as the conduct does not violate the Rules of Professional Conduct.”
B. Multiple Ethics Rules May Be Implicated by Accessing or Using Social Media in the Context of Litigation
1. SCR 3.130(4.1) – Truthfulness in Statements to Others.
“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.”
2. SCR 3.130(4.2) – Communication with Person Represented by
Counsel. “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.”
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3. SCR 3.130(4.3) – Dealing with Unrepresented Person.
“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 misunderstanding. The lawyer shall not give legal advice to an unrepresented person. The lawyer may suggest that the unrepresented person secure counsel.”
4. SCR 3.130(8.4(a)) – Misconduct.
“It is professional misconduct for a lawyer to: . . .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[.]”
5. SCR 3.130(8.4(c)) – Misconduct.
“It is professional misconduct for a lawyer to: . . . Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation[.]”
C. A Lawyer Cannot Use False or Deceptive Means to Gain Access to Non-
public Information on a Social Media Platform
1. A lawyer cannot “friend” or “follow” a represented party on social media as this likely constitutes an unauthorized communication with a represented party.
Exercise caution and ensure that you do not “like,” “share,” or re-tweet something that a represented party has posted.
2. A lawyer cannot direct a third party to gain access to non-public
information on a social media platform if the lawyer is prohibited from doing so. a. Do not direct a paralegal/secretary/investigator to “friend” or
“follow” a represented party on social media. b. Even though the lawyer cannot access non-public social
media information through these methods, that information may still be subject to discovery and obtained through a discovery request.
3. But what if you know someone who is friends with a represented
party on a social media platform? Can you ask your friend to let you view a represented party’s non-public social media content?
This has not yet been addressed by Kentucky or the ABA.
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D. A Lawyer Can Utilize Social Media Data of an Unrepresented Party or Non-party and Can Use Social Media to Contact that Party
1. KBA Ethics Opinion E-434 (Nov. 17, 2012) permits this contact
subject to certain limitations.
a. “If a person with whom the lawyer is communicating is unrepresented, such as a witness, then SCR 3.130(4.3) would apply.”
b. The lawyer must disclose who she is and the reason for contact.
c. The lawyer may not imply that she is disinterested.
2. Additionally, SCR 3.130(4.1) applies in this context as well.
a. The lawyer cannot make false statements of material fact or
use deceptive means to contact or access the social media information of an unrepresented party or non-party.
b. Philadelphia Legal Ethics Opinion 2009-02 (March 2009).
i. A lawyer may not ask or direct a third person (such as a paralegal) to “friend” or “follow” a witness on social media.
ii. Doing so omits a material fact if the third person
does not disclose the reason for the access (i.e., to obtain information for use in litigation).
c. New Hampshire Legal Ethics Opinion 2012-13/5 (2012).
A lawyer’s request to view non-public social media information in and of itself “is improper because it omits material information. The likely purpose is to deceive the witness into accepting the request and providing information which the witness would not provide if the full identity and role of the lawyer were known.”
IV. COMMUNICATIONS ON SOCIAL MEDIA: HOW MANY WAYS CAN THIS GO
WRONG?
A. Communications with Potential Clients on Social Media Can Create an Attorney-client Relationship
1. SCR 3.130(1.18) – Duties to Prospective Client.
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:
i. both the affected client and the prospective client have given informed consent, confirmed in writing, or;
ii. the lawyer who received the information took
reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and
(a) the disqualified lawyer is timely screened
from any participation in the matter and is apportioned no part of the fee therefrom; and
(b) written notice is promptly given to the
prospective client.”
2. Be careful when posting or commenting on a post on social media as you may wind up triggering ethical duties.
B. Communications on Social Media May Not Reveal Confidential Information
1. SCR 3.130(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).
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b. A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
i. to prevent reasonably certain death or substantial
bodily harm; ii. to secure legal advice about the lawyer's compliance
with these Rules; iii. to establish a claim or defense on behalf of the
lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding, including a disciplinary proceeding, concerning the lawyer's representation of the client; or
iv. to comply with other law or a court order.”
2. Don’t post about cases or clients on social media. 3. Be mindful of how each social media platform works so that you
don’t inadvertently make something public that should have only be communicated directly to a client.
4. Don’t forget that you also have a duty to supervise subordinate staff
and lawyers to ensure that they comply with the applicable Rules, including the duty of confidentiality under SCR 3.130(5.2) and (5.3).
C. Communications on Social Media May Create Conflicts of Interest
1. SCR 3.130(1.7) – Conflict of Interest: Current Clients.
“Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
a. the representation of one client will be directly adverse to
another client; or b. there is a significant risk that the representation of one or
more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.” (emphasis added).
2. DC Bar Ethics Opinion 370 (March 12, 2018) “Caution should be
exercised when stating positions on issues, as those stated positions could be adverse to an interest of a client, thus
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inadvertently creating a conflict . . . Content of social media posts made by attorneys may contain evidence of such conflicts.”
V. REMEMBER: JURORS HAVE LINKEDIN, TWITTER, AND FACEBOOK, JUST
LIKE THE REST OF US
A. A Lawyer Can Utilize Social Media Data to Research Information about Jurors but Cannot Use Social Media to Contact a Juror
1. KBA Ethics Opinion E-434 (Nov. 17, 2012) “The Rules of
Professional Conduct, as well as various statutes and court rules, prohibit improper contact with jurors. Those prohibitions would apply in the social network context as well.”
2. SCR 3.130(3.5) – Impartiality and Decorum of the Tribunal.
“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:
i. The communication is prohibited by law, local rule, or court order;
ii. The juror has made known to the lawyer a desire not
to communicate; or iii. The communication involves misrepresentation,
coercion, duress or harassment; or
d. Engage in conduct intended to disrupt a tribunal.” B. What Constitutes Improper Contact with Jurors?
1. New York County Lawyers Association Legal Ethics Opinion 743
(May 18, 2011).
a. “It is proper and ethical under RPC 3.5 for a lawyer to undertake a pretrial search of a prospective juror’s social networking site, provided that there is no contact or communication with the prospective juror and the lawyer does not seek to ‘friend’ jurors, subscribe to their Twitter accounts, send tweets to jurors or otherwise contact them.”
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b. “During the evidentiary or deliberation phases of a trial, a lawyer may visit the publicly available Twitter, Facebook, or other social networking site of a juror but must not ‘friend’ the juror, email, send tweets to the juror, or otherwise communicate in any way with the juror or act in any way by which the juror becomes aware of the monitoring.”
c. “Moreover, the lawyer may not make any representations or
engage in deceit, directly or indirectly, in reviewing juror social networking sites.”
2. Sluss v. Commonwealth, 381 S.W.3d 215 (Ky. 2012).
The Supreme Court of Kentucky adopted the New York County Lawyers Association’s opinion on social media contact with jurors.
3. Kentucky has not addressed what sort of electronic
communications or notifications constitute contact with a juror. There are competing opinions on this issue.
a. ABA Formal Opinion 14-466 (2014).
“The fact that a juror or potential juror may become aware that a lawyer is reviewing his Internet presence when a network setting notifies the juror of such does not constitute a communication from the lawyer in violation” of the Rules of Professional Conduct.
b. New York State Bar Association Social Media Ethics
Guidelines (May 11, 2017).
“A lawyer may view the social media profile of a prospective juror or sitting juror provided that there is no communication (whether initiated by the lawyer, her agent or automatically generated by the social media network) with the juror.” (emphasis added).
4. Be mindful of what each social media platform does with respect to
notifications and err on the side of caution.
a. LinkedIn may provide notifications that a specific person viewed an individual’s profile.
b. SnapChat provides notifications when someone has viewed
an individual’s posts. c. Facebook Live provides notifications when someone views
an individual’s “Live” video stream. d. Instagram provides notifications when someone views an
individual’s “story.”
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VI. IS MY TWEET AN AD?
The answer might surprise you. A. Social Media Profiles May Implicate The Rules of Professional Conduct
Concerning Advertising
1. Kentucky has not specifically addressed attorney social media profiles and whether they are subject to rules regarding attorney advertising.
2. There are multiple ethical issues related to listing specialties or
areas of expertise on social media profiles. 3. SCR 3.130(7.40(4)) – Communication of Fields of Practice.
“A lawyer shall not state or imply that a lawyer is certified as a specialist in a particular field of law, unless:
a. The Lawyer has been certified as a specialist by an
organization which has been approved by an appropriate state authority or that has been accredited by the American Bar Association;
b. The name of the certifying organization is clearly identified
in the communication; and c. The communication occurs only for as long as the lawyer
remains so certified and in good standing.”
4. New York Legal Ethics Opinion 972 (June 26, 2013).
“A law firm may not list its services under the heading ‘Specialties’ on a social media site. A lawyer may not list services under that heading unless the lawyer is certified in conformity with the provisions of Rule 7.4(c).”
B. Endorsements from Other Lawyers May Implicate The Rules of
Professional Conduct
1. SCR 3.130(8.4(c)) – Misconduct.
“It is professional misconduct for a lawyer to: . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation[.]”
2. Pennsylvania Bar Association Formal Opinion 2014-300 (2014).
“An attorney may endorse another attorney on a social networking website provided the endorsement is accurate and not misleading . . . [W]hen a lawyer endorses another lawyer on social media, the
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endorsing lawyer must only make endorsements about skills that he knows to be true.”
C. What about Bob Loblaw’s Law Blog
1. Kentucky has not specifically addressed whether blogs must
comply with lawyer marketing rules. 2. Whether a blog is an advertisement may depend on the content of
the blog and the blog’s purpose.
a. SCR 3.130(7.01) – Definitions.
An advertisement is “any information containing a lawyer’s name or other identifying information, except the following:
i. A professional card of a lawyer; ii. A public service announcement identifying the
sponsor as a lawyer or law firm, by name, address(es), telephone number(s), but no other information;
iii. A sign on or near the law office and in the building
directory identifying the law office.”
b. SCR 3.130(7.20(3)) – Advertising.
“Any communication made pursuant to these Rules shall include: the name and office address of at least 1 lawyer or the name of a law firm. The lawyer or lawyers in Kentucky shall be responsible for the content of the advertisement.”
c. New York Legal Ethics Opinion 967 (June 5, 2013).
“A blog written by an attorney that does not discuss legal topics and whose primary purpose is not the retention of the lawyer is not an advertisement, and would thus not be subject to the retention and preservation rules for lawyer advertising, even though the title of the blog makes clear that the authority is an attorney.”
d. Hunter v. Virginia State Bar ex rel. Third District
Commission, 744 S.E.2d 611 (Va. 2013).
Attorney who operated blog where he posted about his own cases and successes was engaged in advertising and was required to contain a disclaimer on his blog.
3. Even if a blog or a tweet is not an advertisement, there are still
ethical considerations to posting.
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a. SCR 3.130(1.6) – Confidentiality of Information.
i. 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 (ii).
ii. A lawyer may reveal information relating to the
representation of a client to the extent the lawyer reasonably believes necessary:
(a) To prevent reasonably certain death or
substantial bodily harm; (b) To secure legal advice about the lawyer’s
compliance with these Rules; (c) To establish a claim or defense on behalf of
the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding, including a disciplinary proceeding, concerning the lawyer’s representation of the client; or
iii. To comply with other law or a court order.
b. In re Disciplinary Proceedings Against Peshek, 798 N.W.2d
879 (Wis. 2011).
Lawyer suspended for 60 days as a result of a blog she operated where she posted about her own legal work, which included confidential information about her clients and derogatory comments about specific judges.
D. A Lawyer Sharing or Linking to Online Reviews May Violate the Rules of
Professional Conduct
1. Kentucky has not specifically addressed this.
2. A lawyer may not be able to accept, post, or share an online review containing statements that would be improper for the lawyer to make.
a. SCR 3.130(7.10) – Communications Concerning a Lawyer’s
Service.
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“A lawyer shall not make a false, deceptive, or misleading communication about the lawyer or the lawyer’s service. 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.”
b. North Carolina Legal Ethics Opinion 2012-8 (Oct. 26, 2012).
“[A] lawyer may accept a client recommendation that is limited to a discussion of the characteristics of a lawyer’s client service. If the recommendation includes general references to the results the lawyer obtained for the client, the lawyer may accept the recommendation if it can be accompanied by an appropriate disclaimer. The lawyer may not accept a recommendation that refers to a settlement or verdict of a specific dollar amount. In addition, the lawyer must review the recommendation for any confidential information that the lawyer believes should not be published online. Therefore, it may be necessary for the lawyer to ask the client to add disclaiming language or to delete certain content.”
c. Virginia State Bar Lawyer Advertising Opinion A-0113
(2000).
“[A] client’s statements make a comparison (‘the best’) that cannot be factually substantiated and offer a guarantee of results (‘quick’). As those improper statements are contained in the lawyer's advertisement, the lawyer would be in violation of Rule 7.1 were he to televise this advertisement.”
3. Can a lawyer respond to negative reviews?
a. SCR 3.130(1.6) – Confidentiality of Information.
i. “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).
ii. A lawyer may reveal information relating to the
representation of a client to the extent the lawyer reasonably believes necessary:
(a) To prevent reasonably certain death or
substantial bodily harm;
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(b) To secure legal advice about the lawyer’s compliance with these Rules;
(c) To establish a claim or defense on behalf of
the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding, including a disciplinary proceeding, concerning the lawyer’s representation of the client; or
iii. To comply with other law or a court order.”
b. A lawyer may not reveal confidential client information in
addressing or responding to a negative online review.
i. In re Tsamis, Commission No. 2013PR00095 (Ill. 2013).
Attorney issued a reprimand for responding to a negative review from a former client and revealing confidential client information in responding to the negative review.
ii. Pennsylvania Bar Association Ethics Opinion 2014-
200 (2014).
(a) A lawyer cannot disclose confidential client information to respond to a negative review but is permitted to make a limited comment.
(b) “A lawyer’s duty to keep client confidences
has few exceptions and in an abundance of caution I do not feel at liberty to respond in a point-by-point fashion in this forum. Suffice it to say that I do not believe that the post presents a fair and accurate picture of the events.”
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