MEET ME ON FACEBOOK: LAWYERS, GEEKS AND SO-CALLED SOCIAL NETWORKING · 2013. 10. 17. · MEET ME ON FACEBOOK: LAWYERS, GEEKS AND SO-CALLED SOCIAL NETWORKING KENT NEWSOME Greenberg

MEET ME ON FACEBOOK: LAWYERS, GEEKS AND SO-CALLED SOCIAL NETWORKING

KENT NEWSOME Greenberg Traurig

1000 Louisiana Street, Suite 1700 Houston, TX 77002

(713) 374-3500 [email protected]

State Bar of Texas 5TH ANNUAL JOHN HUFFAKER AGRICULTURAL LAW COURSE

May 19-20, 2011 Lubbock

CHAPTER 11

Kent Newsome Bio Kent Newsome is a partner at Greenberg Traurig in Houston, where he practices real estate and general business law. Kent is a past Chair of the Houston Bar Association Real Estate Section and a past chair of the Houston Bar Association Entertainment and Sports Law Section. He is listed in “Best Lawyers in America,” Chambers USA America’s Leading Business Lawyers and Who's Who Legal: Texas. He is a member of the American College of Real Estate Lawyers and the Houston Real Estate Lawyers’ Council. He was named one of Houston’s “Super Lawyers” by H Texas Magazine and was named a “Texas Super Lawyer” by Texas Monthly Magazine. He serves on the governing Council of the Real Estate Probate and Trust Law Section of the State Bar of Texas. Kent is a member of the board of directors of Texas Lawyers and Accountants for the Arts and has served as an Adjunct Professor of Law at the University of Houston Law Center. Kent is a recorded songwriter, with several album cuts to his credit, including the title track to the 1999-2000 Chicago Music Awards County Album of the Year. He writes about technology, music and life (and never the law) at his popular blog, Newsome.Org (www.newsome.org).

Meet Me On Facebook: Lawyers, Geeks And So-Called Social Networking Chapter 11

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TABLE OF CONTENTS

WHAT ARE THEY? ...................................................................................................................................................... 2

BLOG ............................................................................................................................................................................ 3

FACEBOOK ................................................................................................................................................................... 4

TWITTER ....................................................................................................................................................................... 5

CREATING A SOCIAL NETWORK PLAN ................................................................................................................. 6

THE FUN/WORK MIX .................................................................................................................................................. 7

SOCIAL MEDIA CANNOT BE IGNORED ................................................................................................................. 8

ISSUES FOR LAWYERS .............................................................................................................................................. 9

THE ABA ..................................................................................................................................................................... 10

ABA ISSUES PAPER .................................................................................................................................................. 11

THE LONG AND WINDING TEXAS RULES ........................................................................................................... 12

TEXAS RULE VII: WHAT’S IN A NAME? ............................................................................................................... 13

TEXAS RULE VII: COMMUNICATIONS ................................................................................................................. 14

TEXAS RULE VII: SOLICITATIONS ........................................................................................................................ 15

TEXAS RULE VII: ADVERTISEMENTS .................................................................................................................. 17

TEXAS RULE VII: FILING REQUIREMENTS ......................................................................................................... 18

TEXAS INTERPRETATIVE COMMENT 17 ............................................................................................................. 20

SOCIAL NETWORKING POLICIES .......................................................................................................................... 22

IBM’S SOCIAL COMPUTING GUIDELINES ........................................................................................................... 23

WALMART’S TWITTER EXTERNAL DISCUSSION GUIDELINES ..................................................................... 24

SO LET’S GET TO NETWORKING ........................................................................................................................... 25

Meet Me on FacebookMeet Me on Facebook

Lawyers, Geeks and and So-called Social Networkingg

Kent NewsomeGreenberg Traurig


1

What Are They?KentAlbany Law ReviewWikipedia

A social network is a software platform or application created by profit-driven developer that encourages the

ll b ti ti

Social networks allow registered users to upload profiles, post comments, join “networks,” and add “f i d ” Th i

A social structure made of individuals (or organizations) called "nodes," which are tied (connected) by one or

ifi t f collaborative creation and sharing of content by the users, generally combined with an influence measurement/incentive system and an

“friends”. They give registered users the opportunity to form “links” between each other, based on friendships, hobbies, personal interests and

more specific types of interdependency, such as friendship, kinship, common interest, financial exchange, dislike, sexual relationships or system and an

advertising-based revenue model.

Social networks are the new AOL.

personal interests and business sector or academic affiliations.

relationships, or relationships of beliefs, knowledge or prestige.


2

Blog: Newsome.Org


3

Facebook: www.facebook.com/newsome


4

Twitter: @kentnewsome


5

Creating a Social Network Plan• What are you using it for? Personal,

business or both?

• Privacy & permanence issues• Privacy & permanence issues.

Who sees what? What if the walls get knocked down? Google and Facebook are forever.

• What happens on Facebook doesn’t stay on Facebook.

• Be sure you understand the privacy controls.

• Beware creating unwanted relationships.

• Living resumes; personal branding.

• The Harry Neilson problem:

Everybody's talking at me.I don't hear a word they're saying,Only the echoes of my mind.People stopping staring,I can't see their faces.Only the shadows of their eyes.


6

The Fun/Work MixL t f i S t

• Reach more people, more quickly.

• Centralize conversations

• Lots of noise. Spam, etc.• The Tupperware party

syndrome.• Dilution risk. Spreading your

content too thin. Lack of focus.• The problem with anonymity. Centralize conversations.

• Engage in real networking?• Stay in touch with remote

family members, old friends, etc.

• Find people with similar

p y yAre you who I think you are?

• Someone, somewhere is trying to make money.

Find people with similar interests.


7

Social Media Cannot be Ignored

• 43 percent of in house counsel• 43 percent of in-house counsel identified blogs as among their leading sources of news and information.

• 53 percent of in-house counsel expect their consumption of industry news and information via new media platforms will increase over the next six months to a year.

• Nearly half of counsel aged 30-39 have used Facebook for professional reasons in the past week.

• 51 percent of in-house counsel said they would receive ycontent from their law firms via new media platforms provided the content is relevant to their businesses.


8

Issues for Lawyers• It is a communication.• Is it an advertisement? Should it be?

C li t “ i lti ”? M b t if t b d• Can you list your “specialties”? Maybe not if not board certified.

• What about “testimonials” in profiles, comments, etc.? CA requires a disclaimer.

• Confidentiality concerns.• Inadvertent attorney/client relationship. Beware the fact-

specific. General commentary is probably OK.• Inadvertent spamming of your contacts by networks.g y y• Unauthorized practice in another jurisdiction.• Higher standard; officer of the court, etc.• Malpractice risks (it’s not all about the advertising rules).• Effect on job and co-workers• Branding issues.• There are all kinds of issues with “spying.”

• Ultimately: the hassle of going the business route• Do traditional ads work anyway?


9

The ABAABA Model Rule 7.1 prohibits false or misleading communication about a lawyer or his or her

i

The Short Answer( di t K t hi h thi )services.

“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.”

ABA Model Rule 7.2 requires that any advertisement “include the name and office address

(according to Kent, which may mean nothing)

From a technical and regulatory perspective, social networks have characteristics of both written communications (e.g., emails and other digital communication) and web sites.

While lawyers and those who want to regulate them will feel compelled to navel gaze over their role in social networking, it is merely an evolutionary means of communication. We need to avoidadvertisement include the name and office address

of at least one lawyer or law firm responsible for its content.”

ABA Model Rule 7.3 prohibits real-time electronic contact to solicit clients.

“A lawyer shall not by in-person, live telephone or real-time electronic contact solicit professional employment from a prospective client when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain unless the person

means of communication. We need to avoid regulating too much…or too little.

The ABA Commission on Ethics 20/20 is studying the social networks issue. Issues paper 9/20/10.

BUT (and this is important)…

WE MUST DISTINGUISH BETWEEN COMMERICAL SPEECH (EVEN IF CALLED SOCIAL NETWORKING) AND PURELY SOCIAL lawyer s pecuniary gain, unless the person

contacted:

(1) is a lawyer; or(2) has a family, close personal, or prior professional

relationship with the lawyer.

)BEHAVIOR (which the Texas rules at least attempt to do (i.e., Texas Rule 7.03(a)).

LAWYERS SHOULD HAVE LIVES TOO.


10

ABA Issues Paper• Identifying the line between personal communications and lawyer

advertising. “Because lawyers frequently use these websites and services for both personal and professional reasons the legal ethicsservices for both personal and professional reasons, the legal ethics issues in this context are more complicated than they have been for more traditional client development tools.”

• Inadvertent Lawyer-Client relationships.

• Lawyers “Friending” judges.

• Gathering information through networking websites.

Bl i “U d h t i t h ld th M d l R l f• Blogging. “Under what circumstances should the Model Rules of Professional Conduct govern a lawyer’s participation in blogs, given that such activities often have both an advertising and non-advertising function?”


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The Long and Winding Texas Rules

Texas has specific and sometimes confusingTexas has specific and sometimes confusing rules about communications, solicitations and advertisements, including some that specifically address digital communications.

The treatment of social networking content will likely be clarified at some point.

There will always be a subjective element toThere will always be a subjective element to what is and is not subject to these rules (pecuniary gain, etc.).

At the end of the day, it is and will probably always be a hassle to combine your personal networking with your business marketing.

Which I happen to believe is a very good thing.


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Texas Rule VII: What’s in a Name?

1 Wh t b t i lRule 7.01(e) generally prohibits a lawyer from using a trade or fictitious name.

1. What about anonymous social network users?

2. Do I have to change my Skype photo?


13

Texas Rule VII: Communications

Rule 7.02 prohibits a lawyer from:

• Making a material misrepresentation of fact or law (7.02(a)(1));

1. Does this cover non-legal facts? Where is the line?

2. If you have lots of Facebook friends and Twitter followers, does that imply that you’re awesome?( ( )( ))

• Creating an unjustified expectation about the results the lawyer can achieve (7.02(a)(3);

• Implying that the lawyer is able to improperly influence officials.

The comments refer to what a “reasonable

that you re awesome?

3. Popularity is certainly and sadly a stand-in for authority on the social networks.

4. What if you have “official” friends? Friends can always influence friendsThe comments refer to what a “reasonable

person” would conclude from the communications.

always influence friends.

5. But what is a “Friend” anyway?


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Texas Rule VII: Solicitations

1 Is there ever a solicitation inRule 7.03 prohibits a lawyer from:

• Initiating contacting, in person, by telephone or via electronic means, with a prospective client involving a particular event or series of events when a significant motive is pecuniary gain

1. Is there ever a solicitation in which pecuniary gain is not a significant motive?

2. Are Facebook walls live and interactive? What about Twitter?

pecuniary gain.

• Electronic contact means “any electronic communication initiated by the lawyer” that will result in the recipient communicating in a “live, interactive manner.”

• Chat room solicitations are specifically

3. A website probably isn’t, but what about a blog with comments?

4. Note the attempt to distinguish profit motives from other (e g social)• Chat room solicitations are specifically

mentioned in the comments.from other (e.g., social) motives. Not the brightest of lines, but a noble attempt.


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Texas Rule VII: Solicitations (Part 2)

1 R l 7 02 d l ith iRule 7.05 contains additional requirements for written solicitations, including those in digital format:

• Requires disclosures that the content i d ti t t h th

1. Rule 7.02 deals with in-person, telephone and electronic contact with a potential client with respect to a particular event or legal matter. This rule addressesis an advertisement, except when the

contact is not motivated by a specific event or legal problem or pecuniary gain is not a significant motive.

• Requires retention of a copy by the

This rule addresses more general “solicitations between a lawyer and a prospective client.”

2 Di it l li it tilawyer for 4 years. 2. Digital solicitations are given more scrutiny than traditional ads (Comment 2).


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Texas Rule VII: Advertisements

R l 7 04 i 1 Wh t i l b kill!Rule 7.04 requires:

• The inclusion of contact information for lawyers responsible for the content of the ad.

• Disclosures that the content is an

1. What a social buzz kill!

2. On a mixed-purpose social network account, do these requirements apply to all content and postings?

• Disclosures that the content is an advertisement.

• Disclosure of geographic location.

• Retention of a copy by the lawyer for 4 years.

3. Isn’t the marketing strategy, for better or worse, to downplay the commercial angle?

4. Does it even work? I un-years.

Rule 7.04 is expressly applicable to internet ads (7.04(r)).

Friend anyone who tries to sell me something, whether I need it or not.


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Texas Rule VII: Filing Requirements

Rule 7 07 requires that copies of certain 1 Clearly a Facebook page fitsRule 7.07 requires that copies of certain advertisements and digital solicitations be filed with the State Bar of Texas.

• Includes the lawyer’s website. YouTube & Facebook videos that constitute solicitations must be submitted.

• A website is defined as “a single or multiple page file posted on a computer server which describes

1. Clearly a Facebook page fits within the definition of a website.

2. There should be some more detailed guidelines as to the extent to which a a social network page is regulated, but there is no basis to treat a lawyer’s Facebook page differently from any other file, posted on a computer server, which describes

a lawyer or law firm’s practice or qualifications, to which public access is provided through publication of a uniform resource locator (URL).”

• There is some pre-approved content (largely for “tombstone” ads), but the communication must include only the pre-approved information.

• The director of the State Bar of Texas Advertising

y yinternet site.

3. It all comes down to intent, which can only be measured by content. Comment 6 to Rule 7.07 states that communications need not be filed if they were not prepared to secure paid professional employment.

• The director of the State Bar of Texas Advertising Review Department said in an interview that the State Bar supports the use of new technology by lawyers, and that true and factual educational information may be included in profiles without triggering the filing requirement (TBJ article; 3/10).

4. The lines will be blurred by the creative and the unscrupulous.


18

Texas Rule VII: Filing Requirements

• There is also the “pecuniary gain” 1 I’m not sure how you• There is also the pecuniary gain exception.

• As well as the exception for solicitations that are not motivated by a specific event, series of events or specific legal problem.

1. I m not sure how you prove exactly what “motivated” a communication.

2. Much of the blurry lines result from a p g pbalancing of consumer protection and First Amendment rights.

3. The current rules are generally sufficient for application to socialapplication to social networks, with a few tweaks.


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Texas Interpretative Comment 17

17. The Internet & Similar Services Including Home Pages (March 1996, Revised May 2003 & March 2010 -Image)Part VII of the Texas Disciplinary Rules of Professional Conduct applies to information disseminated digitally via the Internet. A digitally transmitted message that addresses the availability of a Texas lawyer’s services is a communication s bject to R le 7 02 and hen p blished to the Internet constit tes an ad ertisement in the p blic mediasubject to Rule 7.02, and when published to the Internet, constitutes an advertisement in the public media.

A. WebsitesA website on the Internet that describes a lawyer, law firm or legal services rendered by them is an advertisement in the public media. For the purposes of Part VII of the TDRPC, “website” means a single or multiple page file, posted on a computer server, which describes a lawyer or law firm’s practice or qualifications, to which public access is provided through publication of a uniform resource locator (URL).

Of the pages of a website subject to these rules, many may be accessible without use of the site’s own navigational tools. Of those pages, for the purpose of this Interpretative Comment, the “intended initial access page” is the page oftools. Of those pages, for the purpose of this Interpretative Comment, the intended initial access page is the page of the file on which navigational tools are displayed or, in the case that navigational tools are displayed on several pages, the page which provides the most comprehensive index capability on the site.

The intended initial access page of a lawyer or law firm’s website shall include:

1) the name of the lawyer or law firm responsible for the content of the site;2) if areas of law are advertised or claims of special competence are made on the intended initial access page or

elsewhere on the site, a conspicuously displayed disclaimer regarding such claims in the language prescribed at Rule 7.04(b); and

3) the geographic location (city or town) in which the lawyer or law firm’s principal office is located. Publication of a link to a separate page bearing the required disclaimer or information required by Rule 7.04(b) does not satisfy this requirement.

B. Web-Based Display/Banner AdsAn image or images displayed through the vehicle of an electronic communication is an advertisement in the public media if the ad describes a lawyer or law firm’s practice or qualifications, whether viewed independently or in conjunction with the page or pages reached by a viewer through links offered by the ad (“target page”). The content of a web-based display or banner ad will be viewed in conjunction with the target page.


20

Texas Interpretative Comment 17 (Con’t)C. Social Media SitesLanding pages such as those on Facebook, Twitter, LinkedIn, etc. where the landing page is generally available to the public are advertisements. Where access is limited to existing clients and personal friends, filing with the Advertising Review Department is not required.

D BlogsD. BlogsBlogs or status updates considered to be educational or informational in nature are not required to be filed with the Advertising Review Department. However, attorneys should be careful to ensure that such postings do not meet the definition of an advertisement subject to the filing requirements.

E. ComplianceRegardless of the form of the electronic communication described in this interpretive comment, the content, including words, sound and images, shall conform to the requirements of part VII of the TDRPC.

F. Records RetentionF. Records RetentionA printed copy of the electronic communication including, where applicable, intended initial access page, profile page, web-based display/banner ads and target page are subject to the retention requirements of Rule 7.04(f).

G. Filing RequirementsElectronic communications described in this interpretative comment are advertisements in the public media subject to the filing requirements of Rule 7.07 unless exempt thereunder. It is the communicating attorney's responsibility to demonstrate that any particular online communication need not be filed with the Committee.

H. Web-Based DirectoriesA lawyer or law firm’s listing on a web-based directory that is accessible by the public shall be exempt from the filing requirements of Rule 7.07 if it meets the requirements of 7.07(e).

I. Internet Domain NamesRule 7.01 prohibits lawyers and law firms from advertising or practicing under a trade name or a name that is false and misleading. Therefore, an internet domain name or URL may not be used as the name under which a lawyer or firm does business. A domain name that is a reasonable variation of the law firm name as permitted under Rule 7.01 or that is a description of the lawyer or law firm may be used as a locater or electronic address only if such use does not violate the provisions of 7.02.


21

Social Networking Policies• FL: Shouldn’t “Friend” a judge; OK to

“Fan” one (a meaningless distinction). The Short Answer( di t K t hi h

• NC: Judge reprimanded for “Friending” an attorney arguing a case before him.

• SC: Imposes an obligation to monitor profiles, etc. for rule compliance.

• Marines: Encourages responsible

(according to Kent, which may mean nothing)

Social networking should be treated just like any other form of communication.

You can’t legislate common sense. gsocial networking.

• VA: May ban teachers from Facebooking with students.

• WSJ: If you don’t use Facebook, you’re a bad lawyer. “Voir Google.” Facebook photos have caused

gBut you should encourage it.

Don’t let the policy be decided by someone who doesn’t understand social networking.

Family policies are probably more important that company policies.Facebook photos have caused

settlements.

• Half of U.S. 12-year olds are on Facebook (!)

important that company policies.

Keep your Facebook Profile private.


22

IBM’s Social Computing Guidelines1. Know and follow IBM's Business Conduct Guidelines. 2. IBMers are personally responsible for the content they publish on blogs, wikis or any other

form of user-generated media. Be mindful that what you publish will be public for a long time—protect your privacy.

3. Identify yourself—name and, when relevant, role at IBM—when you discuss IBM or IBM-related matters. And write in the first person. You must make it clear that you are speaking for yourself and not on behalf of IBM.

4. If you publish content to any website outside of IBM and it has something to do with work you do or subjects associated with IBM, use a disclaimer such as this: "The postings on this site are my own and don't necessarily represent IBM's positions, strategies or opinions."

5. Respect copyright, fair use and financial disclosure laws. 6. Don't provide IBM's or another's confidential or other proprietary information. Ask permission to

publish or report on conversations that are meant to be private or internal to IBM. 7. Don't cite or reference clients, partners or suppliers without their approval. When you do make

a reference, where possible link back to the source. 8. Respect your audience. Don't use ethnic slurs, personal insults, obscenity, or engage in any

conduct that would not be acceptable in IBM's workplace. You should also show proper consideration for others' privacy and for topics that may be considered objectionable or inflammatory—such as politics and religion.

9. Find out who else is blogging or publishing on the topic, and cite them. 10. Be aware of your association with IBM in online social networks. If you identify yourself as an

IBMer, ensure your profile and related content is consistent with how you wish to present yourself with colleagues and clientsyourself with colleagues and clients.

11. Don't pick fights, be the first to correct your own mistakes, and don't alter previous posts without indicating that you have done so.

12. Try to add value. Provide worthwhile information and perspective. IBM's brand is best represented by its people and what you publish may reflect on IBM's brand.


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Walmart’s Twitter External Discussion Guidelines

[O]n Twitter we encourage dialogue with customers about the products, brands and initiatives discussed by the writers. We welcome your thoughts and @replies on any and all of those topics. While we’ll do our best to reply to your comments generally we won’t be able to reply to store orWhile we ll do our best to reply to your comments, generally, we won t be able to reply to store or service issues through Twitter. If you’d like to comment about customer service or any other issue please visit: Walmart Stores Feedback or call 1-800-Walmart.

A few notes:

•While many of our 2.2 million associates around the world are using Twitter and other social networks, all official Walmart Twitter users will be identified on this landing page and will have a link back to this page from their Twitter profile.

•Unless otherwise noted, U.S.-based Walmart approved Twitter users will follow the following naming conventions of “business unit + name/category.” For example, “walmartmeeting,” “samsclubrobert,” and “walmartgames.”

•We won’t reply to off topic @replies. Personal attacks and foul language = FAIL. Adding to the discussion = WIN.

•@replies should contribute to the dialogue. Please support any claims with links to sources whenever possible We love opinions We love it even more when you back them uppossible. We love opinions. We love it even more when you back them up.

THE POSTING AND PRESENCE OF CONTENT ON TWITTER AND ON THIS SITE DOES NOT NECESSARILY MEAN THAT WALMART AGREES WITH THE CONTENT, ENSURES ITS ACCURACY OR OTHERWISE APPROVES OF IT. NOTHING IN ANY TWITTER PAGE CONSTITUTES A BINDING REPRESENTATION, AGREEMENT OR AN ENDORSEMENT ON THE PART OF WALMART. PLEASE REVIEW THE SITE TERMS OF USE CAREFULLY.


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So Let’s Get to Networking

Newsome.OrgFacebook.Com/Newsome

@kentnewsome


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MEET ME ON FACEBOOK: LAWYERS, GEEKS AND SO-CALLED SOCIAL NETWORKINGKent NewsomeTABLE OF CONTENTSMeet Me on FacebookWhat Are They?BlogFacebookTwitterCreating a Social Network PlanThe Fun/Work MixSocial Media Cannot be IgnoredIssues for LawyersThe ABAABA Issues PaperThe Long and Winding Texas RulesTexas Rule VII: What’s in a Name?Texas Rule VII: CommunicationsTexas Rule VII: SolicitationsTexas Rule VII: AdvertisementsTexas Rule VII: Filing RequirementsTexas Interpretative Comment 17Social Networking PoliciesIBM’s Social Computing GuidelinesWalmart’s Twitter External Discussion GuidelinesSo Let’s Get to Networking

Documents

MEET ME ON FACEBOOK: LAWYERS, GEEKS AND SO-CALLED SOCIAL NETWORKING · 2013. 10. 17. · MEET ME ON FACEBOOK: LAWYERS, GEEKS AND SO-CALLED SOCIAL NETWORKING KENT NEWSOME Greenberg