Social Media and Ethics for Lawyers

Ethical Issues Arising from the Use of

Technology

Philip C. Tsai, Esq.Hon. Michael P. Price

June 17th, 2011

Social Media

Lawyer Websites

Listserv

Cloud Computing

Ethical Issues

“Interaction with external websites or services based on participant contributions to the content. Types of social media include blogs, micro blogs, social and professional networks, video or photo sharing, and social bookmarking”.

What is Social Media?

Facebook Twitter MySpace YouTube LinkedIn Avvo Blogs RSS Feeds

Social Media

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

RPC 1.1 Competence

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.

Comment 6 to RPC 1.1

A lawyer shall act with reasonable diligence and promptness in representing a client.

RPC 1.3 Diligence

Over 500,000,000 Facebook Users

Over 200,000,000 Use with Mobile Phone

Number of Facebook Users

AAML reports an 81% increase in the use of Social Media Websites as evidence in Family Law Cases

66% report that Facebook is the primary source

AAML Statistics

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). …

RPC 1.6 Confidentiality

Venting on Social Media may have Consequences

If Information Posted on Internet, may be Permanent

Example of Breach of Confidentiality

Risks of Revealing Location

Issues with Confidentiality

Pretexting

Philadelphia Opinion2009-02

RPC 5.1 Non Lawyer Assistants

RPC 8.4 Misconduct

RPC 4.1 Truthfulness in Statements to Others

Acquisition/Preservation of Evidence

A lawyer shall not: ◦(a) 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;

RPC 3.4(a) Fairness to Opposing Party and Counsel

RPC 7.1 Communication Concerning Lawyer’s Services

RPC 7.2 Advertising

RPC 7.3 Direct Contact with Prospective Clients

RPC 1.6 Confidentiality

Lawyer Advertising and Social Media

(a) Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through written, recorded or electronic communication, including public media.

RPC 7.2 Advertising

A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. 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.

RPC 7.1 Communication Concerning a Lawyer’s Services

Contact Information

Area of Practice

Increased Ability to Reach Potential Clients

Ease of Publication

More Legal Content on Website

Lawyer Websites

RPC 1.6 Confidentiality

Use of Hypotheticals

RPC 7.3 Direct Contact with Prospective Clients

Electronic Mailing Lists (Listserv)

Davis v. York Int’l Corp., 1993 LEXIS 7173 (1993)

Lawyer to Lawyer Consultation

Lawyer to Non Lawyer Consultation

Establishment of Attorney-Client Relationship

Unauthorized Practice of Law

Potential Waiver of Work Product Doctrine

Ex Parte Communications with Judiciary

Other Ethical Issues

Remote Electronic Data Storage on the Internet (“In the Cloud”)

SaaS (Software as a Service)

Cloud Computing and Storage

RPC 1.15A Safeguarding Property

RPC 1.6 Confidentiality

Ethical Rules and Cloud Computing