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Social Media: What Lawyers Need to KnowJoshua Lenon – Clio
Kemp Edmonds - Hootsuite
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Instructors
Joshua Lenon
• Attorney, admitted in New York• Lawyer in Residence at Clio
Kemp Edmonds
• Solutions Consultant
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1. Competency Extends to Social Media (15 minutes)2. Communicating via Social Media (15 minutes)3. Social Media as Evidence (15 minutes)4. Attorney Advertising (5 minutes)5. Questions (10 minutes)
Agenda
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COMPETENCY EXTENDS TO SOCIAL MEDIA
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1.1 Competence
(A) A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
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Ethical Requirements for Technology
Rule 1.1 Competence
• [Comment 8]– “To maintain the requisite
knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.”
States Adopting Comment 8• Arizona• Arkansas• Connecticut• Delaware• Idaho• Kansas• Massachusetts• Minnesota• New Mexico• North Carolina• Ohio• Pennsylvania• West Virginia• Wyoming
Source:.http://www.lawsitesblog.com/2015/03/mass>becomes>14th>state>to>adopt>duty>of>technology>competence.html..
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Competency Required
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NYSBA SOCIAL MEDIA GUIDELINES
www.nysba.org/socialmediaguidelines/
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Continuous Ethical Duties
NYSBA Social Media Ethics Guidelines
A lawyer has a duty to understand the benefits and risks and ethical implications associated with social media, including its use as a mode of communication, an advertising tool and a means to research and investigate matters.
CA Formal Ethics NO. 2015-193
An attorney’s obligations under the ethical duty of competence evolve as new technologies develop and become integrated with the practice of law.
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Griffin v. State, 995 A. 2d 791 - Md: Court of Special Appeals 2010
"It should now be a matter of professional competence for attorneys to take the time to investigate social networking sites.”
(Quoting Sharon Nelson et al., The Legal Implications of Social Networking, 22 REGENT U.L. REV. 1, 1-2 (2009/2010))
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Social Media Use
0
10
20
30
40
50
60
70
80
2/2005 8/2006 5/2008 4/2009 5/2010 8/2011 12/2012 5/2013 9/2013 1/2014
Adult.%.Using.Social.Media
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Social Media Use
Source:.Pew.Social.Media.Update.2013
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“Lawyers, however, need to be conversant with, at a minimum, the basics of each social media network that a lawyer or his or her client may use. This is a serious challenge that lawyers need to appreciate and cannot take lightly. “
- NYSBA Social Media Guidelines
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COMMUNICATING VIA SOCIAL MEDIA
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1.4 Communication(a) (2) keep the client reasonably informed about the
status of the matter;
(3) promptly comply with reasonable requests for information;
[7] A lawyer may not withhold information to serve the lawyer's own interest or convenience or the interests or convenience of another person.
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Legal Advice vs General Information
NYSBA GUIDELINE NO. 3.A
A lawyer may provide general answers to legal questions asked on social media.
A lawyer cannot provide specific legal advice on social media.
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Soliciting Clients
NYSBA GUIDELINE NO. 3.B
Public Solicitation is Prohibited through “Live” Communications
Lawyers may respond to social media inquiries but do so privately.
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Records Keeping
NYSBA GUIDELINE NO. 3.C
If an attorney utilizes social media to communicate with a client relating to legal representation, the attorney should retain records of those communications, just as she would if the communications were memorialized on paper.
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Jurors
NYSBA GUIDELINE NO. 6.A
A lawyer may research a prospective or sitting juror’s public social media profile, and posts.
NYSBA GUIDELINE NO. 6.B
A lawyer may view the social media profile of a prospective juror or sitting juror provided that there is no communication.
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Confidentiality
NYSBA GUIDELINE NO. 5.3
Social media communications must preserve attorney-client confidentiality.
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SOCIAL MEDIA AS EVIDENCE
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Social Media Discovery
• Private is not private– Cooperating “friends” do not violate 4th Amendment, United
States v. Meregildo, 883 F.Supp.2d 523 (S.D.N.Y., 2012)• Relevancy as the Threshold Analysis – Overly broad access is a worry, Offenback v. L.M. Bowman, Inc.
(M.D. Pa., 2011)• Third-Party Subpoenas– Stored Communications Act (SCA) limits voluntarily disclosed
information, Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965 (C.D. Cal. 2010)
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Preserving Evidence
NYSBA GUIDELINE NO. 5.A
Unless an appropriate record of the social media information or data is preserved, a party or nonparty, when appropriate, may not delete information from a social media profile that is subject to a duty to preserve.
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Preserving Evidence
26%
9%
5%12%
19%
29%
Self>Preservation
None 1>24% 25>49%
50>74% 75>99% 100%
Top reasons respondents do not rely on self-preservation
1. Cannot always rely on/ trust individuals
2. Greater certainty/ defensibility, lower risk
3. IT is more effective4. Automatic storage/back-up
of data
Source:.Norton.Rose.Fulbright.2015.Litigation.Trends.Annual.Survey.
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Preserving Evidence
Dynamic nature of social media necessitates periodic collection
Full range of metadata associated with social media can only be collected with specialized software
Sedona.Conference.Primer.on.Social.Media
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ATTORNEY ADVERTISING
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Attorney Advertising
NYSBA GUIDELINE 2.A• Social media accounts used to advertise for pecuniary
gain must comply with advertising rules• Personal profiles are not subject to advertising rules• Hybrid accounts must comply with advertising rules
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States Rules
• Differentiate between Communications & Non-communications
• Disclaimers for previous results• Record retention for communications versus content• Contact information requirements
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Which is NOT subject to professional rules?
1. “Case finally over. Unanimous verdict! Celebrating tonight.”
2. “Won a million dollar verdict. Tell your friends and check out my website.”
3. “Won another personal injury case. Call me for a free consultation.”
4. "Another great victory in court today! My client is delighted. Who wants to be next?"
5. “Just published an article on wage and hour breaks. Let me know if you would like a copy.”
• FORMAL OPINION NO. 2012-186 • http://www.lawsitesblog.com/2013/01/california-rules-on-ethics-of-social-media-postings.html
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“Just.published.an.article.on.wage.and.hour.breaks..Let.me.know.if.you.would.like.a.copy.”
Not a Communication
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QUESTIONS?
