Legal Implications of Social Media for Your Clients and Your Firm

March 28, 2013 Orange County Bar Association

Technology Committee

TopicsLegal Implications of Social Media for Your Clients

Donna M. Chesteen, Esq., The Tech Law Firm

Legal Implications of Social Media for Your ClientsKeith Kanouse Jr., Esq., The Tech Law Firm

Effect of Social Media on Actual CasesEthan Wall, Esq., Richman Greer

Samir Ghia, Esq., Kubicki Draper

Disclaimer The views expressed on this presentation are

based on the professional and educational experiences of each author. This presentation is given as legal information and not legal advice. No one should act upon any opinions or information in this presentation without first seeking qualified professional counsel.

Legal Implications of Social Media for

Your ClientsDonna M. Chesteen, Esq.

Social Media from Your Client’s Point of View

Using social media to communicateWhose speech is it?Who owns the data?Who owns the social media account?

Using social media to vet employeesProtecting IP when using social mediaDiscovery of social media

Whose Speech Is It?

Commingling of business and personal messaging can cause ambiguities. Why should you care? Reputation of the organization

Vacation pics may make an employee look less responsible in the eyes of a client/potential client

Financial implicationsPolitical or religious posts may cause a client/potential client to

impute views to the organization Can alienate an entire segment of client base

Vicarious liability for tortsCourt may have problems determining whether speech was within

scope of employment (ex., defamation) Apparent agency issues

Organization may be bound by speech of individual if 3d party acts in reliance on the speech

Who Owns the Data/Account?Again, why do you care?Discovery

More expensive if personal/business speech is mixed because there is more data to collect and review

Business litigation requires exposure of personal speech and vice versa

Employee departure from organization

Who Owns the Data/Account?

Two recent casesPhoneDog, LLC v. Noah Kravitz1

San Francisco Fed. CourtPhoneDog sued former employee for continuing to

use business-related Twitter account after he left company

No written policySettled

Dec 2012 defendant kept Twitter account and followers (17,000)

Who Owns the Data/Account?

Eagle v. Edcomm2

US Dist Ct for District of PAEagle terminated by former employer, EdcommEdcomm continued using her LinkedIn account but

replaced her picture with that of anotherEagle prevailed on 3 state claims

misappropriation of identity invasion of privacy PA statute prohibiting unauthorized use of someone’s name

Eagle was unable to prove damagesCourt noted that Edcomm did not have a policy in place

informing employees of ownership of LinkedIn account

What Should Your Policies Address?

How to disambiguate speechOwnership of social media accountsOwnership of data – including

contacts/followers/connectionsRights to business content even if you don’t have

rights to account itself3

Steps to insure your control of site once employee that manages and runs site leaves4

Vetting Potential Employees5

May violate anti-discrimination laws if use social media in their recruitment of employees or make employment decisions as a result of protected class information obtained from social media background checks

If social media check is not consistent for all applicants, inconsistency can lead to claim of discrimination

Policy Suggestions Guidelines for info sought and how it relates to job Protocols and procedures for verifying info Consistent searches for all applicants Have disinterested person perform searches and redact protected info Maintain records of searches and criteria for search

Protecting IP6

Problems arise because organization does not have control over what is said and who is saying itConversations are dynamic instead of scripted Involve people inside and outside companyOccur in real time

Policy suggestionsProhibit disclosure of confidential information

Specify which info is confidentialHow trademarks and logos may be usedWho owns user-generated content on organization

sponsored sites and who may be liable for it

Protecting IP7

More policy suggestionsHow organization will enforce rights in its own IPWho may speak for organization on social media and

what standards they must meet for tone, content, and timing

When employees must post disclaimers making it clear that views are their own and not organization’s

Discovery of Social Media

Social media is discoverable but scope may vary depending upon case and jurisdictionMailhoit v. Home Depot8

“profiles, postings or messages” from any social networking site “that reveal, refer, or relate to any emotion, feeling, or mental state of Plaintiff” not specified with “reasonable particularity”

EEOC v. Simply Storage Management9

“[i]t is reasonable to expect severe emotional or mental injury to manifest itself in some content, and an examination of that content might reveal whether onset occurred, when and the degrees of distress.”

Take-Aways

Be proactive!Have specific policies in placePreserve social media once duty to preserve

attaches

Notes

1. John A. Snyder, PhoneDog v. Kravitz Settlement Points to Need for Agreements on Ownership of Social Media Accounts, Non-Compete & Trade Secrets Report (Dec. 12, 2012), http://www.noncompetereport.com/2012/12/12/phonedog-v-kravitz-settlement-points-to-need-for-agreements-on-ownership-of-social-media-accounts/.

2. Jessica Mendelson & Robert Milligan, Seyfarth Shaw LLP, Federal Court Questions Whether Damages Exist in LinkedIn Account Ownership Dispute, Lexology (Mar. 2, 2013), http://www.lexology.com/library/detail.aspx?g=88b4e170-a34e-46d8-ac98-bd8e5ae9859b.

Notes

3. Norah Olson Bluvshtein, Fredrikson & Byron PA, Linkedin Case a “Mixed Bag” According to Judge, Lexology (Mar. 21, 2013), http://www.lexology.com/library/detail.aspx?g=cf95f4e0-5e32-487a-bfea-098f4471e2b4.

4. Id.5. Seyfarth Shaw LLP, Avoiding The Legal Pitfalls of

Social Media in the Workplace, Lexology (Dec. 16, 2010), http://www.lexology.com/library/detail.aspx?g=23772ce5-503b-44c2-bb8b-9dbf09b47420

Notes

6. Corby Cochran Anderson, Nexsen Pruet, Seven Tips for Protecting Your Intellectual Property in the Age of Social Media, Lexology (Oct. 23, 2012), http://www.lexology.com/library/detail.aspx?g=d2887266-be9a-4bff-bd52-2c16683911aa.

7. Id.8. Mailhoit v. Home Depot, Inc., No. CV 11-03892 DOC

(SSx), 2012 U.S. Dist. LEXIS 131095, at *7 (C.D. Cal. Sept. 7, 2012).

9. EEOC v. Simply Storage Mgmt., LLC, No. 1:09-cv-1223-WTL-DML, 270 F.R.D. 430, at *435 (S.D. Ind. 2010).

Notes

9. Gibbons P.C., Lester v. Allied Part 2: “Clean Up” of Compromising Social Media Evidence Can Result in Severe Sanctions, E-Discovery Law Alert (Feb. 21, 2012), http://www.ediscoverylawalert.com/2012/02/articles/legal-decisions-court-rules/lester-v-allied-part-2-clean-up-of-compromising-social-media-evidence-can-result-in-severe-sanctions/.

Legal Implications of Social Media for

Your FirmKeith Kanouse Jr., Esq.

Special thanks to: Jeff Hazen, Assistant Ethics Counsel, FL Bar Kathy J. Bible, Advertising Counsel, FL Bar

May, 2012 Guidelines for Networking SitesMay, 2013 Advertisement Rules Modifications

Impact on Social MediaWhat can I say?With whom can I connect?Common Do’s and Don’ts

Social Media from Your Firm’s Point of View

May, 2012 Guidelines for Networking Sites

Personal pages of individual lawyers on social networking sites that are used solely for social purposes, to maintain social contact with family and close friends, are not subject to the lawyer advertising rules.Communicating about one’s career in a limited

manner can be seen as a social purpose, but be careful.

Pages appearing on networking sites that are used to promote the lawyer or law firm’s practice are subject to the lawyer advertising rules.

Exception to Ad Rules for Professional Communication

Exceptions provided for any recipients who “is the lawyer's current/former client, relative, has a prior professional, relationship with the lawyer, prospective client who requested the information, or is another lawyer.” (Rule 4-7.1, 4-7.4)What about a long-time friend? Not unless you have a

professional relationshipHow long is ‘continuing’? Depends, but one encounter is not

sufficientWhat if I met the person at a networking event, we exchanged

business cards….can I now connect? You cannot send a social media invite to connect or a follow up email w/o it being considered unsolicited

Unsolicited Social Media Invites = Unsolicited Emails

Invitations sent directly from a social media site via instant messaging to a third party to view or link to the lawyer’s page on an unsolicited basis are solicitations in violation of Rule 4-7.4(a), unless the recipient is the lawyer’s current client, former client, relative, or is another lawyer.

Therefore, you must have a prior professional relationship to send an invite

Direct Email Rules to Non-exempt Person - Rule 4-7.18(D)

Must comply with lawyer advertising rules 4-7.11 through 4-7.17

Subject line must begin with the word “Advertisement”Must contain a statement of qualifications and experience,

including specific experience (including years practiced) in the areas of law being advertised, # cases handled by attorney in trial (if litigation), FL Bar admittance Date,

Targeted (mass) emails will require further informationRules do not apply to email sent in response to a

prospective client’s request

May, 2013 effective New Advertisement Rules

New rules expand Ad rules beyond just networking sites into all media, including, email, Internet banners, pop-ups, websites, and video sharing sites. Rule 4-7.11(a) Rule 4-7.8(f) – Exemptions from the filing and review

requirement - Computer-accessed communications are:4-7.6(b) Internet Presence. All World Wide Web sites

and home pages accessed via the Internet that are controlled or sponsored by a lawyer or law firm and that contain information concerning the lawyer’s or law firm’s services:

Ok, we got it, the Ad Rules apply to Social Media, but what exactly are the rules?

May, 2013 effective New Advertisement Rules

Advertisements may contain:objectively verifiable past results – Rule 4-7.13(b)

(2) objectively verifiable characterizations of skill,

experience, reputation or record – Rule 4-7.13(b)(3)

testimonials, subject to specific restrictions and disclaimers – Rule 4-7.13(b)(8)

COMPUTER-ACCESSED COMMUNICATIONS

Information regarding a lawyer’s or law firm’s services that is read, viewed, or heard directly through the use of a computer. Such communications must contain (Rule 4-7.12(a)):Name of advertising lawyer or law firmBona fide office by city, town, or county

My professional website has that info, that’s not too difficult to follow.

Twitter/Facebook/LinkedIn Posts

The name of the lawyer or firm and the geographic location of the lawyer’s office are required under the current rules (4-7.2(a)) and the new rules (4-7.12(a)). If firm does contain a lawyer’s name, then a lawyers name must be used Does not make a difference if Social Media profile has been made

‘private’ Example post for @TheTechLawFirm

‘Keith Kanouse Esq.-Orlando: Glad to be a presenter for today's Social Medial Law CLE at #OCBA Tech Committee. Let's hope the questions r easy’

Currently, the ethics department staff is in the process of proposing changes to the social networking guidelines which would make such posts to private accounts exempt from the name and office location requirements.

LinkedIn Recommendations / Endorsements

New Rules do allow for Recommendations, but if a third party posts information on the lawyer’s page about the lawyer’s services that does not comply with the lawyer advertising rules, especially objectively verifiable.

However, for Endorsements, each is listed as a Skill Set / Expertise. Since the FL Bar requires Board Certification to be labeled “an expert in”, one should disable the Endorsement feature on your page. Even though new rules allow 3rd party endorsement of a objectively

verifiable skill, experience, reputation or record, any endorsement must still need to objectively verifiable.

You must remove any posts by 3rd parties to your social media sites that do not confirm with the rules. If posts are to 3rd party sites to which you aware, you must request post be removed.

Miscellaneous Do’s / Don'ts with Social Media

Do not friend Judges, as the ability of a Judge to accept/deny conveys a impression that ‘friend’ lawyers may be in a better position to influence. However, mediators may be ‘friend’ a the attorneys and clients with

they have or anticipate mediating as long as the mediator does not a conflict of interest occurs.

Do not make a Social Media post unless you would also email your entire contact list with the same update. Be careful of saying too much, especially about a client, case, or particularly a Judge. Be particularly aware that you may also have an opposing counsel as

a friend who can also read your updates

Remember those Southwest commercials? You don’t want to be the one wanting to get away after a TMI post.

Do not use plural nouns for a solo practitioner, no matter staff size.

Miscellaneous Do’s / Don'ts with Social Media

Attorney client relationship can form via Social Media just as easily as it can in-person or over the phone. Same rules do apply.

Communication with represented parties rules apply. Therefore, you may have to manually ‘unfriend’ the individual from receiving general updates.

Viewing publicly available social media information for unrepresented opposing party is allowed. However, issues may arise when connecting, especially under false pretense, to such a party in order to view non-public social media information. However, under eDiscovery there are ways to force opposing

party to turn over private social media communications.

That’s right, you can’t ‘Catfish’ the opposition

Most Common Reasons for Prosecution

The biggest issue with social media is to avoid direct solicitation thru inviting people who are known to be injured to a personal injury website or Facebook page.

Lawyers cannot directly solicit clients on a discussion board or chat room. However, one can respond to legal requests, but be careful of conflict of interest, unintentionally forming attorney-client relationship.

When posting any update on any website that allows comments that can be construed for professional purposes, one should follow unsolicited direct email guidelines.

Blogging can have serious consequences if it violates an advertising or Bar rule Florida Bar v. Conway, 996 So.2d 213 (Fla. 2008). - Attorney received

public reprimand for posting the derogatory comments, such as calling her an ‘evil Witch’, about a Judge.