Bridge-the-Gap II for Newly Admitted New York Attorneys ...a123.g.akamai.net/7/123/121311/abc123/yorkmedia.download.akamai.c… · Delaware Supreme Court Commission on Law & Technology

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Bridge-the-Gap II for Newly Admitted New York Attorneys 2016:

Ethics in Social Media for Lawyers

February 26, 2016 ● New York, NY

Richard Raysman

Holland & Knight LLP

Robert M. Isackson

Orrick, Herrington & Sutcliffe LLP

Paul E. Nolting

Samsung Electronics America

Jennifer Smith Finnegan

Herrick Feinstein LLP

Patrick M. Turner

CBS

» Introductions

2

What is Social Media?

» Blogs and Microblogs

» Apps

» Business Reviews

» Video sharing

» Geolocation networks

» Photo sharing

» Networking

» Music streaming

» News

3

Social Media Business Uses

» Public affairs

» Sales

» Research

» Promotion and product awareness

» Employee engagement

» Customer service

» Crisis/Reputation management

» Recruitment

» Investor communications

4

Delaware Supreme Court Commission on Law & Technology


» On January 24, 2014, the Commission issued a Bulletin entitled

“Communications Via Social Media.”

» The Bulletin is designed to address potential ethical implications

arising from social media communications between lawyers and

clients related to a legal matter.

» It does not address communications made via social media in the

context of attorney advertising.

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»Polling Question 1:

»1) Is a message sent via social media a

communication?

»Yes or No?

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» Principle 1: A message sent via a social-networking site may be

considered a “communication” for the purposes of the Delaware

Lawyers’ Rules of Professional Conduct (“DLRPC”).

» Likely applies to a Facebook “friend request” or a “request to connect” via

LinkedIn.

» Implicates DLRPC that deal with communications with jurors (Rule 3.5(b)) and

unrepresented persons, as well as persons already represented by counsel (Rule

4.3).

» Also applies to Rules dealing with competence, diligence and truthfulness in

statements, among others.

» References similar ethics rules from:

» NYS Bar Association

» NYC Bar Association

» Philadelphia Bar Association

» San Diego County Bar Association

» Oregon State Bar Association

7

Public Social Media Data


»2) In a negligence lawsuit, can the plaintiff be compelled to produce a private profile on

Facebook?

»Yes or No?

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Public Social Media Data

Public social media data often provides a foundation upon which

counsel may move to compel the disclosure of more private data in a

party’s social media account.

Largent v. Reed, 2011 WL 5632688 (Penn. C.P. Nov. 8, 2011)

» The plaintiff was injured when the motorcycle on which she was a passenger collided

with the defendant's van. As a result of the accident, the plaintiff claimed serious

injuries from a motorcycle accident.

» During her deposition, the plaintiff testified that she had an active Facebook profile

and had in fact accessed it as recently as the previous evening.

» In a motion to compel production, the defendant argued that the plaintiff's profile was

recently public and that certain posted photos exhibiting joy or status updates about

going to the gym contradicted the plaintiff's severe injury claims. The court granted

the motion and found the information relevant and discoverable.

» But see In re Milo’s Kitchen Dog Treats Consol. Cases, --- F.R.D. ----, 2015 WL

1650963 (W.D. Pa. Apr. 14, 2015) (distinguishing from Largent on grounds that

plaintiff did not challenge production of relevant material, but only production of entire

account; manufacturer not entitled to discover entire unredacted file).

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»3) Can a private investigator hired by an

attorney go onto a website and impersonate

someone else?

»Yes or No?

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Delaware Supreme Court Commission on Law & Technology/NY

Rules of Professional Conduct

» Principle 2: An attorney can be responsible for ethical violations of

other attorneys and non-lawyer agents, such as paralegals and

investigators, resulting from social media communications. » Attorneys have a duty to ensure that those who are working on their behalf understand

and comply with the rules.

» Adherence to this principle means supervising attorneys, e.g., partners and managing

partners, make reasonable efforts to ensure non-lawyer agents understand ethical

implications of social media communications.

» Attorneys may need to have an effective social media policy.

» Pre-texting

» N.Y. Rules of Professional Conduct Rule 8.4: Misconduct: “A lawyer or law firm shall

not … (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”

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»4) Can client communications via social media

constitute a waiver of attorney-client privilege?

»Yes or No?

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» Principle 3: Client communications on social media about the

client’s case can constitute a waiver of attorney-client privilege. » For instance, a client’s Facebook post about his lawyer’s trial strategy may be not

subject to attorney-client privilege, and thus discoverable.

» To prevent the inadvertent breach of privilege, a lawyer should consider the benefits

of advising his clients of the potential consequences of communicating about the

representation in an online forum.

» Lenz v. Universal Music Corp., 2014 WL 4789099 (N.D. Cal. Nov. 17, 2010)

(attorney-client privilege waived where client discussed conversations with attorney

in personal emails, electronic chats and blog posts).

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Ethics of Informal Discovery – Private Social Media Data


»5) In a personal injury case, can a plaintiff be compelled to produce private social media accounts to ascertain whether the plaintiff

commented on any injuries?

»Yes or No?

14


Fawcett v. Altieri, 960 N.Y.S.2d 592 (N.Y. Sup. Ct., Rich. Ct. 2013)

» In a personal injury case after an altercation between two students, the defendant

moved to compel production of plaintiff’s private social media accounts to ascertain

whether plaintiff commented on injuries suffered as a result of the altercation or the

altercation itself.

» The court denied the motion to compel. It noted that “there must be a clear factual

predicate to compel the production of social media records.” To wit, a party must

show “with some credible facts that the adversary subscriber has posted information

or photographs that are relevant to the facts of the case at hand.”

» See also Patterson v. Turner Const. Co., 931 N.Y.S.2d 311 (N.Y. App. Div. 2011)

(holding that materials on a Facebook page, if relevant, would not be immune from

discovery simply because the user restricted access via privacy settings; reversed

lower court ruling after in camera review).

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»Delaware Question 6:

»6) Should an attorney advise clients about the

implications of the client’s social media

communications?

»Yes or No?

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» Principle 4: An attorney should consider whether to advise clients

about the potential implications of the clients’ social media

communications.

» An attorney should contemplate apprising his or her clients about risks specific

to social media posts, e.g., that the communications will likely exist in some

form in perpetuity.

» A discussion regarding privacy settings on social media sites do not per se

retain the same meaning in a legal context may be warranted. Hence, social

media content may be subject to discovery during litigation.

» Lawyer may want to inform client that communications published on social

media can be republished without the client’s consent and can be shared by the

client’s Facebook friends.

» Social media content can constitute evidence that may be admissible during

litigation.

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»7) Is there a duty to preserve social media

content relevant to litigation?

»Yes or No?

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» Principle 5: There is a duty to preserve social media content

and related information relevant to active or threatened

litigation. » Such preservation is only required if the lawyer is aware that such content exists.

Therefore, a lawyer should take affirmative steps to ascertain whether such

evidence exists. Rule 3.4(a) stipulates how such evidence must be preserved.

» Information and metadata related to social media communications also constitutes

electronic evidence subject to discovery.

» Social content constitutes evidence and any potentially relevant information that

exists on a social networking site must be preserved.

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»8) After in camera review of a plaintiff’s social

media account, will a court order disclosure?

»Yes or No?

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In order to guard against overly broad disclosures of a party’s social

media information, some courts have conducted in camera review prior

to production.

Douglas v. Riverwalk Grill, LLC, No. 11-15230, 2012 U.S. Dist. LEXIS 120538 (E.D.

Mich. Aug. 24, 2012)

» The court ordered the plaintiff to provide contents of his social media account for in

camera review.

» After conducting a review of “literally thousands of entries,” the court held that the

“majority of the issues bear absolutely no relevance” to the case, and the only

discoverable elements were comments on other people’s posts, or updates on his

own status. Therefore, the plaintiff was required to produce 18 entries.

» But see Tomkins v. Detroit Metro. Airport, 278 F.R.D. 387 (E.D. Mich. 2012)

(declining parties request for in camera review because “such review … is rarely

used to determine relevance”). See also Barnes v. CUS Nashville, LLC, No. 3:09-

0764, 2010 WL 2265668 (M.D. Tenn. May 27, 2010) (magistrate judge offers to

expedite the parties’ discovery dispute by creating a Facebook account and then

“friending” a litigant)

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»9) Can information communicated via social

media constitute disclosure of a client’s

confidential information?

»Yes or No?

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» Principle 6: Information communicated via social media may

constitute a disclosure of a client’s confidential information.

» All information posted online, including to social-networking sites, must comply

with the Rules regarding confidentiality.

» Information relating to the representation of a client should not be communicated

via social media sites.

» Model Rules of Professional Conduct Rule 1.6(c) : A lawyer shall make

reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or

unauthorized access to, information relating to the representation of a client.

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Attorney Mistakes When Using Social Media

» An Indiana Deputy Attorney General was fired for tweets intimating, if satirically, that

Wisconsin police should use “live ammunition” to remove protesters from the

Wisconsin capitol building.

» An Iowa judge delayed a jury trial in civil case for false imprisonment because of

Facebook post by trial counsel commenting on defendant’s guilty plea in related

criminal proceeding and license suspension.

» An assistant State Attorney in Florida faced criticism for posting on Facebook a

Gilligan’s Island-themed commentary during a criminal trial:

» "Just sit right back and you'll hear a tale, a tale of a fateful trial that started from

this court in St. Lucie County. The lead prosecutor was a good woman, the 2nd

chair was totally awesome. Six jurors were ready for trial that day for a four hour

trial, a four hour trial.”

» “The trial started easy enough by [sic] then became rough. The judge and jury

confused [sic], If not for the courage of the fearless prosecutors, the trial would be

lost, the trial would be lost. The trial started Tuesday, continued til Wednesday

and then Thursday With Robyn and Brandon too, the weasel face, the gang

banger defendant, the Judge, clerk, and Ritzline here in St. Lucie."

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»Questions

Sub-Title Top Guide 6.22

Chart-Title Top Guide 5.35

Body Top Guide 4.16

Body Bottom Guide 7.80

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Right

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Question 1: Employee Do’s and Don’ts

• Social Media policies and guidelines

• General inappropriateness – offensiveness

• Hiring/firing – using social media to delve into backgrounds

• Permission to post a photograph

• Free Speech issues

• Third-party rights

• Right of Publicity

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Body Top Guide 4.16


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Right

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Question 2: Crisis Management – Reputational Issues

• How Should Lawyers respond when their clients receive negative attention

on social media?

• Be pro-active – may become the story itself

• Do nothing

• Customer complaints going viral

• Organization’s hashtag co-opted and used as a focus for negative comments

about the brand

• Online stalking/cyberbullying of employees – what is the organization’s

obligation to protect employees?

• Reputational issues

• Inappropriate comments by organization’s spokespeople.

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Body Top Guide 4.16


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Question 3: Damage of not Controlling Social Media Outlets

• Placing or maintaining social media under an Organization’s control

• Controlling information (leaks)

• Trade secrets (plugging leaks)

• Use of internal social media platforms

• Product plans not announced

• Price plans

• Bulletin board type services

• Who or what is responsible for social media

• Escalation paths for sensitive inquiries

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Body Top Guide 4.16


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Question 4: How are trademarks, copyrights, and rights of publicity handled?

• Fake associations

• Improperly leveraging someone else’s brand

• Improper association with entity that does not exist

• Clearances

• Third-party materials

•

• What kinds of postings might be pre-approved by the law department?

• In advising marketing departments, can quotes from other platforms be

used?

• Controlling employees and P.R. marketing firms

• Fair use

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Body Top Guide 4.16


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Question 5: Other Issues

• Fan fiction

• Alternative product support and tech forums

• Fan contributions

• Illegal lotteries

• Choice of law and remedies

• User groups

• Unofficial sites

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Documents

Bridge-the-Gap II for Newly Admitted New York Attorneys ...a123.g.akamai.net/7/123/121311/abc123/yorkmedia.download.akamai.c… · Delaware Supreme Court Commission on Law & Technology