Tweeting While You Work: Social Media and Ethics for Employment Lawyers

Tweeting While You Work:

Social Media and Ethics

Lauren E. Godshall

WHAT WE’LL COVER

Social Media Platforms and Use

Social Media and Discovery

Ethical Issues Confronted by Attorneys

Ethical Issues Confronted by Employers

SOCIAL MEDIA

Source: HootSuite, November 28, 2013

Source: HootSuite, November 28, 2013

MORE STATS

Over 1 billion unique users each month; 100 hours of video are uploaded to YouTube each minute

Over 500 million tweets daily

Over 225 million users

FACEBOOK AND TWITTER

72% of all adult Americans have at least one social networking presence

One in every seven minutes spent online is spent on Facebook

Facebook users spend more than 10.5 billion minutes per day on Facebook

Twitter processed 5,000 “tweets” a day in 2007; by 2013, that figure had soared to over 500 million a day

DOES YOUR FIRM USE SOCIAL NETWORKING?

93% are on LinkedIn

71% are on Facebook

67% are on Twitter

See, e.g, Rodriquez v. Wal-Mart, 540 Fed. Appx. 322 (5th Cir. Sept. 19, 2013); In re White Tail Oilfield Services, No. 11-9 (E.D.La. Oct. 11, 2012) (Roby, Mag. J.)

See, e.g, Judeh v. LSU, No. 12-1758 E.D.La. (Oct. 10, 2013) (Vance, J.)

• Charles Wilson, Indiana Deputy Attorney General Out of Job after Live Ammo Tweet, The Washington Post (Feb. 23, 2011).

See, e.g, Pietrylo v. Hillstone Rest. Group, No. 06-5754 (D. N.J. Sept. 25, 2009)

ETHICAL ISSUES WITH TECHNOLOGY

Comment: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….

Client-Lawyer RelationshipRule 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.

ETHICS OF SOCIAL MEDIA

Duty of competence; diligence (1.1; 1.4)

Confidentiality of information (1.6) Candor toward the tribunal (3.3) Fairness / spoliation (3.4; FRCP 37) No ex parte communications with

judges (3.5) Trial publicity (3.6)

ETHICS OF SOCIAL MEDIA

Truthfulness in statements to others (4.1)

No contact with represented party (4.2)

Dealing with unrepresented person (4.3)

Respect of third-party rights (4.4) Unauthorized practice of law (5.5) Advertising (7.2) No dishonesty, fraud, deceit or

misrepresentation (8.4)

ETHICS: DILIGENCE AND COMPETENCE

Lawyer sanctioned for accusing opposing counsel (who found a public image on plaintiff’s own Facebook page) of hacking. Allied Concrete v. Lester, 736 S.E.2d

699 (Va. 2013).

ETHICS: DILIGENCE AND COMPETENCE Failure to investigate social media

statement as inadequate assistance of counselCannedy v. Adams, 706 F.3d 1148 (9th Cir.)

• Online searching = reasonable diligence?Weatherly v. Optimum Asset Management, Inc., 928 So.2d 118 (La. App. 1 Cir. 12/22/05)

ETHICS: SPOLIATION

ETHICS: SPOLIATION

See, e.g, Gatto v. United Air Lines, Inc., No. 10-1090 (D. N.J. Mar. 25, 2013)

ETHICS: FRIEND REQUESTS

Friend request counts as contact, so do not friend a represented party.

Cannot pretend to be someone else to deceive and gain access to private page.

ETHICS: DISCOVERY

“In an era of increasingly pervasive social media use, employers must be mindful of the balancing act required between protecting the company and the employee’s individual right to engage in certain workplace discussions on social media…..”

Source: Intel.com, March 7, 2014

Although the Firm strongly discourages any lawyer or administrative employee from disclosing his or her association with the Firm when participating in discussions or asserting opinions on a Social Media site, if a lawyer or administrative Employee discloses his or her association with the Firm in such circumstances, a disclaimer along the following lines must be Included: “This material/opinion is my own and does not purport to represent the positions, strategies or opinions of my employer.”

But don’t forget Pietrylo!

THANK YOU!

Lauren Godshalllaurengodshall@curryandfriend.com

@nolagodshall