NAHO 2013 Conference St. Paul, Minnesota Slide 2
Acknowledgements Many thanks to Eve Moran for drafting the four
skits used in this presentation, and for providing many of the
research materials for the ethics program being presented today.
Thanks also to Professor Ogden for providing many of the research
materials for todays program. Thanks also to Bonny Fetch, co
presenter, skit director, and facilitator. The ethics rules
featured here are from the Illinois Rules of Professional Conduct.
The skits and some of these materials were previously presented at
an National Association of Regulatory Utility Commissioners
conference in November 2012. Slide 3 Course Description Twitter,
Facebook, Blogs, LinkedIn, etc., are some of the new tools in our
online lives. On the positive side, social media offers
opportunities for networking, research, marketing, and information
exchange. On the negative side, it presents new opportunities for
the unwary to engage in professional misconduct. Through a number
of comedic skits we will explore the ethical challenges (e.g., ex
parte communications, confidentiality, misrepresentation,
appearances, and influences on the decision-making authority) that
present themselves in the context of social media "friending"
relationships. We will also discuss whether existing ethics laws
are clear enough to address the blurring line between our personal
lives and our professional lives. Finally, we will consider what
effect social media is having on the core values of professionalism
and what forces cause good people to fall into unethical conduct
Slide 4 Social Media Sites 1 Top 5 social media sites: Source :
http://www.ebizmba.com/articles/social-networking-websites
(October, 2012)
http://www.ebizmba.com/articles/social-networking-websites 1.
Facebook [750,000,000 estimated unique monthly visitors] 2. Twitter
[250,000,000 estimated unique monthly visitors] 3. Linkedin
[110,000,000 estimated unique monthly visitors] Slide 5 Social
Media Sites 2 4. MySpace [70,500,000 estimated unique monthly
visitors] 5. Google Plus+ [65,000,000 estimated unique monthly
visitors] Source:
http://www.ebizmba.com/articles/social-networking-websites
(October,
2012)http://www.ebizmba.com/articles/social-networking-websites
Slide 6 Social Media Sites 3 1. Facebook Launched in February 2004
for social networking. Founded by Mark Zukerberg and four other
Harvard college students. Started at the college level but expanded
rapidly. Most widely used global social networking service. $ 104
billion market value at IPO at $ 38 dollars per share but the value
has since dropped to $ 50 billion. Source:
http://en.wikipedia.org/wiki/Facebook Slide 7 Social Media Sites 4
2. Twitter Founded March 2006 and Launched in July 2006 Social
networking and microblogging service Text based messages of up to
140 characters allowed known as Tweets. Tweets are publicly
viewable to whomever elects to follow the tweeter Widely popular
with 500 million active users as of 2012 Source:
http://en.wikipedia.org/wiki/Twitter Slide 8 Social Media Sites 5
3. Linkedin Founded in December 2002. Launched May 2003 Expanded to
Europe in 2010 Profitable in 2011 and 2012. 161 million subscribers
Heavily used for professional networking Source:
http://en.wikipedia.org/wiki/LinkedInhttp://en.wikipedia.org/wiki/LinkedIn
Slide 9 Social Media Sites 6 4. Myspace Founded in August 2003
Rapid growth 2003 t0 2006. Bought by News Corp. in June 2005 for $
580 million. Overtaken by Facebook in 2008. Significant influence
in pop culture and music. Bought by Specific Media Corp, and Justin
Timberlake for $ 35 million in June 2011. Source:
http://en.wikipedia.org/wiki/Myspacehttp://en.wikipedia.org/wiki/Myspace
Slide 10 Social Media sites 7 5. Google Plus+ Launched in June 2011
Has 400 million registered users and 100 million active users as of
September 2012 Described as a social layer and also includes Google
Apps High growth in US and European markets Source:
http://en.wikipedia.org/wiki/Google%2Bhttp://en.wikipedia.org/wiki/Google%2B
Slide 11 Facebook A fully filled-out Facebook profile contains over
40 pieces of recognizably personal information: name, birthday,
educational and employment history, online and offline contact
information, sex, sexual preference and relationship status,
political and religious views, favorite movies, books and music,
and of course, pictures. Facebook is the largest photo-sharing
application on the web with more than 14 million photos uploaded
daily. Source:
http://newsandinsight.thomsonreuters.com/Legal/Insight/2011/11_-
_November/Social_media_for_employers_and_lawyers_who_advise_employer
s/ Slide 12 Blogs A type of website that is usually personally
owned, maintained and updated. Source: (1) Official definition: 1.a
Web site containing the writer's or group of writers' own
experiences, observations, opinions, etc., and often having images
and links to other Web sites. 2. to maintain or add new entries to
a blog. Most allow visitors to leave comments which can evolve into
group conversations that are recorded similar to a deposition
transcript. Source: Mutum, Dilip; Wang, Qing (2010). "Consumer
Generated Advertising in Blogs". In Neal M. Burns, Terry Daugherty,
Matthew S. Eastin. Handbook of Research on Digital Media and
Advertising: User Generated Content Consumption. 1. IGI Global. pp.
248261. Blog Examples? Slide 13 What is Social Media What is
considered Social Media? The American Bar Association defines
social media as [a]ny tool or service that uses the Internet to
facilitate conversations. Differences from traditional media: Each
user can create his own content Each user can instantaneously share
the content he has created The privacy of the content created by
users depends to a large degree on the user's choices; he may make
his content available to anyone or to a specific group of people.
Three predominant forms of social media: social networking sites
(SNS), blogs, and microblogs. Source(s): Hope A. Comisky &
William M. Taylor, Don't Be A Twit: Avoiding the Ethical Pitfalls
Facing Lawyers Utilizing Social Media in Three Important
Arenas-Discovery, Communications with Judges and Jurors, and
Marketing (2011) 20 Temp. Pol. & Civ. Rts. L. Rev. 297, 298
Slide 14 Stored Communication Act Social media is protected under
Federal law by 18 U.S.C. 2701 et seq., the Stored Communications
Act, which prevents sites like Facebook or Myspace from producing
information in the absence of consent from the account owner. The
only way to obtain the information is via authorization or via
subpoena. Citation: 18 U.S.C.A. 2701 (West). Slide 15 The Tweeting
Juror A $12.6 million verdict was appealed in Arkansas as a result
of a jurors tweets, such as Oh, and nobody buy Stoam. Its mad mojo
and theyll probably cease to exist now that their wallet is $12
lighter. Source: See Renee Loth, Mistrial by Google, Boston Globe,
Nov. 6, 2009, at A15, available at
http://www.boston.com/bostonglobe/editorial_
opinion/oped/articles/2009/11/06/mistrial_by_google Slide 16 The
Facebooking Juror 1 In Wilgus v. Sirus 665 F. Supp. 2d. 23 (D.,
Maine, 2009), a juror sent the plaintiffs attorney an email after
trial asking whether he knew the plaintiff advocated binge drinking
and using mushrooms and marijuana, facts he learned from Facebook.
E-mail text: [D]id you know your plaintiff[s] advocated the use of
mushrooms and weed smoking, and binge drinking all over the
internet?... It['s] really sad what happened but with all the work
going into this don['t] you think you should have address[ed] this
issue and known such things so they could clean up their acts
before court? I'm just trying to help.[ ][I]f you want more info
and insight [I] will help you. New trial based on juror misconduct
denied because no other juror received this information. Slide 17
The Facebooking Juror 2 In Maryland, the attorney for Mayor Shelia
Dixon sought a mistrial for the mayors conviction for embezzlement.
While the trial was ongoing, five of the jurors became Facebook
friends and chatted on the social network site, despite the judges
instructions not to communicate outside of the jury room. The
argument was that the Facebook friends became a clique that altered
the jury dynamics. The defendant subsequently entered into a plea
agreement and stepped down in January 2010. Source: Beth C. Boggs,
Misty L. Edwards, Does What Happens on Facebook Stay on Facebook?
Discovery, Admissibility, Ethics, and Social Media Increasingly,
Lawyers Are Mining Social Networking Sites Like Facebook for
Information About Litigants, Witnesses, Jurors (2010) 98 Ill. B.J.
366 Slide 18 The Internet Jurors In a Florida federal drug case,
after eight weeks of trial, a juror admitted to the judge he had
been doing research on the case on the internet. When questioned,
eight other jurors admitted the same and a mistrial was declared.
Source:
http://www.nytimes.com/2009/03/18/us/18juries.html?pagewanted=all&_r=0http://www.nytimes.com/2009/03/18/us/18juries.html?pagewanted=all&_r=0
Slide 19 Facebook Service In Australia, Facebook has been used for
service of process of court documents. In December 2008, after
several failed attempts at service, a lawyer won the right to serve
a default judgment by posting the terms of the judgment on the
defendants Facebook wall. Source: See Bonnie Malkin, Australian
Couple Served with Legal Documents via Facebook, TELEGRAPH.CO.UK
(Dec. 16, 2008),http://www.telegraph.co.uk/news
/newstopics/howaboutthat/3793491/Australian-couple-served-with-legal-documents-via
Facebook.html (last visited May 13, 2009). Slide 20 Facebook and
Case Outcomes 1 In Romano v. Steelcase Inc., 907 N.Y.S.2d 650 (N.Y.
Sup. Ct. 2010), the plaintiff sought damages for her physical
injury and claimed damages for the associated emotional harm. 907
N.Y.S.2d 650 (N.Y. Sup. Ct. 2010) However, her public profile page
on Facebook show[ed] her smiling happily in a photograph outside
the confines of her home despite her claim that she ha[d] sustained
permanent injuries and [was] largely confined to her house and bed.
The court granted defendant access to the private portions of
plaintiff's Facebook and MySpace pages because, in light of the
public portions of her sites, there is a reasonable likelihood that
the private portions of her sites may contain further evidence such
as information with regard to her activities and enjoyment of life,
all of which are material and relevant to defense of this action.
Source(s): Hope A. Comisky & William M. Taylor, Don't Be A
Twit: Avoiding the Ethical Pitfalls Facing Lawyers Utilizing Social
Media in Three Important Arenas-Discovery, Communications with
Judges and Jurors, and Marketing (2011) 20 Temp. Pol. & Civ.
Rts. L. Rev. 297, 301 Slide 21 Facebook and Case Outcomes 2 In
McMillen v. Hummingbird Speedway, Inc., No. 113-2010 CD, 2010 Pa.
Dist. & Cnty. Dec. LEXIS 270 (C.P. Jefferson, 2010), the
plaintiff alleged damages after being injured in a stock car race
based on, among other things, loss of vitality and inability to
enjoy certain pleasures of life. The public portion of McMillen's
Facebook page, however, included comments about [plaintiff's]
fishing trip and attendance at the Daytona 500 race in Florida[.]
The court was impressed that, [a]ccessing only the public portion
of his Facebook page,... the defendants have discovered posts they
contend show that [plaintiff] has exaggerated his injuries. Based
on this foundation, the court ordered plaintiff to provide
defendant with his usernames and passwords for his Facebook and
MySpace accounts. Source(s): Hope A. Comisky & William M.
Taylor, Don't Be A Twit: Avoiding the Ethical Pitfalls Facing
Lawyers Utilizing Social Media in Three Important Arenas-Discovery,
Communications with Judges and Jurors, and Marketing (2011) 20
Temp. Pol. & Civ. Rts. L. Rev. 297, 301-02 Slide 22 Cloud
Computing Cloud technology is essentially the storing of
information online through a network of pooled storage generally
run by third-parties. Where is the data actually kept? Is that
important? If stored internationally, are foreign jurisdictional
privacy laws applicable? An extension of electronically stored
information as amended in the Federal Rules of Civil Procedure?
Source: www.docuwise.net/t-glossary.aspx; Source: Kelly Balfour
Social Media and Ethics CLE power point presentation (September 11,
2012, NAALJ conference, New Orleans,
Louisiana)www.docuwise.net/t-glossary.aspx Slide 23 Document
Retention All social media interaction must be preserved up to a
certain point. For emails the common standard is reasonableness and
proportionality. But a duty to preserve evidence arises whenever
there is knowledge of a potential claim. Source: Rimkus Consult.
Grp. v. Cammarata, 688 F.Supp.2d 598, 612 (S.D.Tex.2010) (analyzing
the duty to preserve by focusing on proportionality and
reasonableness).Rimkus Consult. Grp. v. Cammarata, 688 F.Supp.2d
598, 612 (S.D.Tex.2010) Slide 24 Skit Titles Yes, I will Friend You
(Exploring ex parte contacts and other questions of propriety when
decision makers and lawyers use social media) Check My Blog (The
intersection of personal and professional social media) Who is
Texting Now (Lawyers supervision of non Lawyer staff) Slide 25 Skit
Number 1 Yes, I Will Friend You Ethical issues in Skit 1 1.
Commissioner bill sets up a Facebook page 2. Commissioner Bill
Facebook friends Lawyer Stuart Little 3. Commissioner Bill uses
Facebook page for improper ex parte communications related to
Littles pending case before ALJ Stanley. 4. Lawyer Stuarts ex parte
communications with Commissioner Bill about case pending before ALJ
Stanley 5. Lawyer Stuart Little sets up a Facebook page 6.
Commissioner Bills improper ex parte communications with ALJ
Stanley. 7. ALJ Stanley s blog posts about lawyer Stuart Littles
expert witness. Slide 26 Judges Ethics 1 In New York, a judge was
reprimanded in part because he used his Facebook account to provide
details of his location and schedule, up-dated his status while on
the bench, posted a photograph of his crowded courtroom to his
account, and invited several lawyers to be his friends on Facebook.
Source: See Molly McDonough, Was Judge Transferred Because of His
Facebook Activity?, ABA Journal, Oct. 16,
2009,http://www.abajournal.com/news/article/was_judge_transferred_because_of_his_f
acebook_activity. Slide 27 Judges Ethics 2 A North Carolina judge
was reprimanded for friending a lawyer in a case pending before
him, posting and reading messages about the litigation on Facebook,
and accessing the website of an opposing party in a child custody
and support case. Can a Judge post comments about the lawyers on
Facebook regarding a particular case and/or the parties, i.e. that
lawyer did a lousy job trying their case.? Source: Debra Cassens
Weiss, Judge Reprimanded for Friending Lawyer and Googling
Litigant, ABA Journal. com, June 1. 2009, available at
www.abajournaLcom/newsljudge reprimanded for friending lawyer and
googling litigant;. Slide 28 Judges Ethics 3 A In North Carolina, a
judge received a public reprimand for social networking
misconduct.3 That case involved child custody dispute. While the
case was pending, the judge and the fathers counsel became Facebook
friends, and thereafter exchanged relatively innocuous ex parte
statements. Further, the North Carolina judge used an internet site
to perform his own investigation of the mother. See Public
Reprimand of Terry, North Carolina Judicial Standards Commission,
Inquiry No. 08-234, April 1, 2009. Slide 29 Judges Ethics 3 B North
Carolina Code of Judicial Conduct Canons ! 2A and 3A94) were
violated. The conclusion from the reprimand opinion stated as
follows: Judge Terry had ex parte communications with counsel for a
party in a matter being tried before him. Judge Terry was also
influenced by information he independently gathered by viewing a
partys web site while the partys hearing was ongoing, even though
the contents of the web site were never offered as nor entered into
evidence during the hearing. Judge Terrys actions described above
evidence a disregard of the principles of conduct embodied in the
North Slide 30 Judges Ethics 3 C Carolina Code of Judicial Conduct,
including failure to personally observe appropriate standards of
conduct to ensure that the integrity and independence of the
judiciary shall be preserved (Canon 1), failure to respect and
comply with the law (Canon 2A), failure to act at all times in a
manner that promotes public confidence in the integrity and
impartiality of the judiciary (Canon 2A), engaging in ex parte
communication with counsel and conducting independent ex parte
online research about a party presently before the Court (Canon
3A(4)). Judge Terrys actions constitute conduct prejudicial to the
administration of justice that brings the judicial office into
disrepute (N.C. Const. art IV, 17 and N.C.G.S. 7A-376(a)). Slide 31
Judges Ethics 4 A Florida judge was disqualified in a criminal case
because the judge had become face book friends with the prosecutor,
and the defendant challenged the judges ability to be fair and
impartial. Domville v. State of Florida, No. 4D12-556,2012 WL
3826764 (Fla. Dist. Ct. App. September 5,
2012)http://www.4dca.org/opinions/Sept 2012/09-05-
12/4D12-556.op.pdfhttp://www.4dca.org/opinions/Sept 2012/09-05-
12/4D12-556.op.pdf Slide 32 Ethics Issues with Judge Terry 1 The
Judicial Standards Commission - found Judge Terry to have had ex
parte communications with counsel appearing in a pending case
before him, and further found that he was influenced by
independently- gathered information not in evidence. Found to have
violated NC Code of Judicial Conduct: Canon 1 (requires appropriate
standards of conduct of ensure integrity and independence of
judiciary); Canon 2A (respect & comply with the law; act in a
manner promoting public confidence in judiciary); Canon 3A(4)
(engaging in ex parte communication with counsel, conducting
independent ex parte research about a party). Slide 33 Ethics
Issues with Judge Terry 2 1. Illinois Rule of Professional Conduct:
3.5 (b) states that... A lawyer shall not: communicate ex parte
with a judge. or other official during the proceeding unless
authorized to do so by law or court order. 2. Federal and State
APAs also prohibit ex parte communications. See 5. U.S.C. Section
551(14), 557(d)(1); 1961 MSAPA Section 13; 1981 MSAPA Section
4-213; 2012 Revised MSAPA Section 408. Slide 34 Ethics Issues with
Judge Terry 3 Just as well, the Nirvana Public Utility Commission,
like every other state utility commission, prohibits ex parte
communications through its agency rules. Engaging in ex parte
communications is misconduct - plain and simple In the skit, and in
the Judge Terry case, there are two different types of ex-parte
communications. Case discussions between the decision-maker and one
party to the dispute. Independent investigation by the decision-
maker. Both types of ex-parte communications are equally egregious.
Why? There is a serious unfairness if only one side has the
decision-makers ear. There is a serious unfairness if the
decision-maker is swayed by untested evidence. Indeed, it is
fundamental that every decision or order be based on the record and
only the record. Slide 35 Social media connections 1 Judges and
Lawyers Question Raised: Can a judge (or any decision-maker) friend
an attorney who might appear before him or her, and vice versa?
Several jurisdictions have issued opinions on this very matter.
Many more, however, have not. So, the definitive answer depends on
where you live. Some jurisdictions have responded, but, in doing
so, have not necessarily framed the issue in the same way. Slide 36
Social media connections 2 1. Can a judge be on facebook/social
media sites? All 7 opinions say YES - 1 is qualified) Kentucky
Opinion JE-119: Yes Oklahoma Opinion 2011-3: Yes California Opinion
66: Yes Florida Opinion 2010-06: Yes Ohio Opinion 2010-7: Yes
Massachusetts Opinion 2011-6: Yes, but may not identify him or
herself as a judge New York Opinion 2010-2: Yes Slide 37 Social
media connections 3 2. Can a judge friend lawyers? Florida Opinion
2010-06: Yes - if atty does not appear or is unlikely to appear
Kentucky Opinion JE-119: Yes (implied) Oklahoma Opinion 2011-3:
Yes, those lawyers who do not regularly appear or are unlikely to
appear in the Judges court. California Opinion 66: Yes (implied)
New York - Yes Mass- (open question) Slide 38 Social media
connections 4 3. Can a judge friend lawyers who may appear before
him or her? Florida Opinion 2009-20: No Ohio Opinion 2010-7: Yes -
but must be vigilant Kentucky Opinion JE-119: Yes (qualified)
Oklahoma Opinion 2011-3: No California Opinion 66: Yes (qualified)
Massachusetts Opinion 2011-6: No New York - Yes Can a judge friend
a lawyer actually appearing on a case? (based on earlier
determinations, only 2 states even get to this question) Ohio - Yes
- but maintain vigilance. California - No in pending case before
the Judge: May NOT friend anew, must de-friend if already friends,
and must make this known, Slide 39 Social media connections 5 TIPS
An attorney, a judge or a decision-maker is not relieved of ethical
responsibilities when engaging in social media. Be on guard when
communications stray into pending case matters. You do not want to
engage in ex parte communications Attorneys and judges and state
agency employees are all well-advised to proceed with caution if
they are friends on social networking sites. Slide 40 Skit Number 2
Check My blog Ethical issues in Skit 2 1. Lawyer Bettys blog posts
identifying her client, revealing confidential client information,
and hurting her clients defense by disclosure of clients
willingness to take the rap for brother. 2. Lawyer Bettys blog
posts disparaging the judge and criticizing the judges ruling in
two of her cases. Slide 41 Rules in focus for Skit Number 2 IRPC -
1.1 (Competence) IRPC - 1.6 (Client Confidentiality) IRPC - 3.5
(Impartiality and Decorum of the Tribunal) IRPC - 8.4 (Misconduct)
(Rules provisions at the end of the slides) Slide 42 Skit Number 2
sources 1 The Kiristine Peshek Case Kristine Peshek was an
assistant Public Defender in Winnebago County, Illinois. She wrote
and published an internet blog tiled The Bard Before the Bar -
Adventures in Life, Law and Indigent Defense. One-third of the blog
was devoted to discussion of her defense work and her clients. In
the rest of her blog, Peshek wrote of her health issues and
bird-watching activities. The blog was open to the public and not
password- protected. Slide 43 Skit Number 2 sources 2 In her blog,
Attorney Peshek set out confidential, and not well-disguised
information with respect to three of her clients and their cases.
She solicited commentary from her readers. In her postings, she
called a judge a total...hole and Judge Clueless. In one post,
Peshek recounted how a client revealed to her, after being
sentenced, that she had lied to the court about being sober. This
was all serious stuff. By order of the IL Supreme Court attorney,
attorney Peshek was suspended from the practice of law for sixty
(60) days. She also lost her job. Slide 44 Skit Number 2 sources 3
Public Reprimand, Sean William Conway (Florida) Florida attorney
Sean Conway had a bad day. In the way a certain judge set cases for
trial, it became necessary for him to ask for a continuance. Doing
so, however, lost his client the right to a speedy trial.
Apparently, only this one judge put defense counsel into this type
of position. Thus, Sean Conway posted to a website that the circuit
court judge was an EVIL, UNFAIR WITCH, seemingly mentally ill,
clearly unfit for her position and knows not what it means to be a
neutral arbiter, and that theres nothing honorable about that
malcontent. These statements were found to violate un-cited to
Rules of Professional Conduct and code of ethics: statements
impugning the integrity of a judge, when made with reckless
disregard as to their truth or falsity, erode public confidence in
the judiciary without assisting to publicize problems that
legitimately deserve attention. Sean Conway received a Public
Reprimand that is now part of his disciplinary record. Notably,
many other attorneys went to their respective blogs in defense of
Conway and his exercise of his 1st Amendment rights. Slide 45 The
Tweeting Research lawyer 1 A research lawyer for a Kansas appeals
court was fired on Monday after posting critical tweets about the
state's former anti-abortion attorney general during a supreme
court ethics hearing. The lawyer, Sarah Peterson Herr, posted
tweets calling former Attorney General Phill Kline a naughty,
naughty boy and criticizing his facial expression, the Associated
Press, the Topeka Capital- Journal andWND report. Why is Phil Klein
[sic] smiling? she wrote. There is nothing to smile about,
douchebag. AP reported on her firing in a later story.Associated
PressTopeka Capital- JournalWNDAP Herr predicted Kline would be
disbarred for seven years as a result of charges claiming he or his
subordinates misled others during an investigation of abortion
providers. WND describes Herrs tweets as snarky" and self-
satisfied. CONTINUED ON NEXT SLIDE
http://www.abajournal.com/news/article/research_lawyer_is_suspended_after
_tweeting_during_ethics_hearing_of_naught/?utm_source=maestro&utm_me
dium=email&utm_campaign=weekly_email Slide 46 The Tweeting
Research lawyer 2 The comments have since been removed. Herr sent
the AP a statement of apology. I didn't stop to think that in
addition to communicating with a few of my friends on Twitter I was
also communicating with the public at large, which was not
appropriate for someone who works for the court system, Herr said.
I apologize that because the comments were made on Twitterand thus
publicthat they were perceived as a reflection on the Kansas
courts. Herr worked for Judge Christel Marquardt, who plans to
retire in January. The Kansas Supreme Court heard the ethics case
against Kline on Thursday in a live broadcast of the proceedings.
Five out of seven justices have recused themselves because some of
the allegations concerned Klines conduct before the supreme court.
Five lower court judges were tapped to help hear the case;
Marquardt was not among them.heard the ethics case
http://www.abajournal.com/news/article/research_lawyer_is_suspended_after
_tweeting_during_ethics_hearing_of_naught/?utm_source=maestro&utm_me
dium=email&utm_campaign=weekly_email Slide 47 Lawyers Ethics 1
Recommendations or Endorsements on Social Networking Sites Must
Comply with Model Rules 7.1, 7.2, and 7.4 Lawyers are responsible
for all communications they place or disseminate, or ask to be
placed or disseminated for them, regarding their law practice, and
all such communications are governed by Rule 7.1 of the Rules of
Professional Conduct. In addition, the South Carolina Committee
found that a lawyer who adopts or endorses information on any
similar website becomes responsible for conforming all information
in the lawyer's listing to the Rules of Professional Conduct.Rule
7.1 of the Rules of Professional Conduct Source: Hope A. Comisky
& William M. Taylor, Don't Be A Twit: Avoiding the Ethical
Pitfalls Facing Lawyers Utilizing Social Media in Three Important
Arenas-Discovery, Communications with Judges and Jurors, and
Marketing (2011) 20 Temp. Pol. & Civ. Rts. L. Rev. 297, 315.
Slide 48 Lawyer Ethics 2 A veteran public defender of 19 years lost
her job after blog postings that contained thinly veiled
information about her clients and referred to a Judge Clueless. The
Illinois State Bar filed a complaint against her in 2009. The
Florida Supreme Court disciplined an attorney who claimed his
blogged rants against a judge he referred to as an evil, unfair
witch were protected free speech. Source:
(1)http://www.nytimes.com/2009/09/13/us/13lawyers.html? Slide 49
Lawyer Ethics 3 In 2006, a prosecutor in San Francisco was
disqualified for blogging about a pending case; his statements
ranged from calling his opposing counsel chicken when she requested
a continuance, alluding to her in blog titles that contained
obscenities, and mentioning evidence that hadn't been ruled
admissible at trial. Source: Judge Gena Slaughter & John G.
Browning, Social Networking Dos and Don'ts for Lawyers and Judges
(2010) 73 Tex. B.J. 192 Slide 50 Lawyer Ethics 4 An attorney lost
her job because of her use of social media. She was an assistant
public defender in Illinois who blogged about the cases she worked
on. Because she allegedly revealed confidential client information,
she was fired and then charged with violating legal ethics
rules.allegedly revealed confidential client information Source:
http://www.abajournal.com/magazine/article/seduced_for_lawyers_the_appeal_of_soci
al_media_is_obvious_dangerous Slide 51 Lawyer Ethics 5 Contact with
a Witness: As a March 2009 Philadelphia Bar Association ethics
advisory opinion points out, using deceptive means to friend a
witness--such as having a third party do it without disclosing an
affiliation with the lawyer--is unethical. Such tactics violate the
Rules of Professional Conduct prohibiting a lawyer from engaging in
behavior that involves dishonesty, fraud, deceit, or
misrepresentation. Source:
http://www.philadelphiabar.org/WebObjects/PBAReadOnly.woa/Contents/WebSer
verResources/CMSResources/Opinion_2009-2.pdf Slide 52 Helpful
Guidelines 1 If you maintain a website as an attorney, your website
should clearly explain where you are licensed and where you
maintain offices; Know who your advertising reaches, where your
clients are located, and where the effects of your services will
likely be felt; Avoid publishing information in an electronic forum
that would otherwise be unethical if it appeared in other printed
media; Source: Kelly Balfour Social Media and Ethics CLE power
point presentation (September 11, 2012, NAALJ conference, New
Orleans, Louisiana) Slide 53 Helpful Guidelines 2 Avoid interactive
communications and active pursuit of potential clients in
electronic media that more closely resemble live, in-person
communication; Refrain from providing legal advice in any
electronic medium unless you intend to create an attorney-client
relationship with the recipient of the advice; and, If you are
maintaining a website, include express disclaimers explaining that
the information provided or received by the recipient will not be
treated as confidential. Source: Kelly Balfour Social Media and
Ethics CLE power point presentation (September 11, 2012, NAALJ
conference, New Orleans, Louisiana) Slide 54 Helpful Guidelines 3
Helpful Guidelines-Facebook, LinkedIn Maintain two different
Facebook pages-one person and one professional Beware of giving
unintended legal advice on LinkedIn- LinkedIn also has the feature
of asking questions of those within ones network and responding
with answers. This blurs the difficult dividing line between
professional development and the provision of legal advice. Source:
Simon Chester and Daniel Del Gobbo, Social Media Networking For
lawyers: A Practical Guide to Facebook, LinkedIn, Twitter and
Blogging,
http://www.americanbar.org/publications/law_practice_magazine/2012/januar
y_february/social-media-networking-for-lawyers.html (last visited
Oct. 12, 2012).
http://www.americanbar.org/publications/law_practice_magazine/2012/januar
y_february/social-media-networking-for-lawyers.html Slide 55 Tips
for Attorneys 1 Social media profiles might be subject to state bar
advertising rules, with significant ramifications. Many states have
special requirements for lawyer advertising, such as: Filing with a
reviewing authority prior to or shortly after public dissemination;
Inclusion of mandatory information, such as the address of the
principal office of the law firm and the name of the person
responsible for the content of the ad; Labels such as Attorney
Advertising or Advertising Material at the beginning and end of the
message; Inclusion of specified disclaimer language; and Retention
of copies of each advertisement for a specified period of time.
Source(s): Susan Liebel, 12 Social Media Ethics Issues for Lawyers
(May 11, 2010),
http://solopracticeuniversity.com/2010/03/11/a-dozen-social-media-ethics-issues-for-
lawyers/.
http://solopracticeuniversity.com/2010/03/11/a-dozen-social-media-ethics-issues-for-
lawyers/ Slide 56 Tips for Attorneys 2 The Recommendations feature
of LinkedIn. Some states prohibit the use of testimonials, or
require certain restrictions or the insertion of disclaimers, such
as in Rule 7.1(d) and (f) of the New York Rules of Professional
Conduct. Rule 7.1(d) and (f) of the New York Rules of Professional
Conduct LinkedIn permits your connections to write testimonials
about you in the Recommendations section of your profile. You can
prescreen recommendations so make sure they comply with the
disciplinary rules. For example, in Texas, Rule 7.02(4) prohibits
comparisons to other lawyers services, unless substantiated by
verifiable objective data. Therefore, if your client
enthusiastically reports that you are the best trial lawyer in
town, you will need to diplomatically ask for a revision before
publication. Source(s): Susan Liebel, 12 Social Media Ethics Issues
for Lawyers (May 11, 2010),
http://solopracticeuniversity.com/2010/03/11/a-dozen-social-media-ethics-issues-for-
lawyers/
http://solopracticeuniversity.com/2010/03/11/a-dozen-social-media-ethics-issues-for-
lawyers/ Slide 57 Tips for Attorneys 3 Designation as a specialist
or expert on LinkedIn. A LinkedIn profile has a field for
specialties. Unless you are certified as a specialist by a state
bar accredited authority in your jurisdiction, you should leave it
blank. ABA Model Rule 7.4(d) and most state rules prohibit a
statement that a lawyer is a specialist without the particular
sanctioned accreditation. Source(s): Susan Liebel, 12 Social Media
Ethics Issues for Lawyers (May 11, 2010),
http://solopracticeuniversity.com/2010/03/11/a-dozen-social-media-ethics-issues-for-
lawyers/.
http://solopracticeuniversity.com/2010/03/11/a-dozen-social-media-ethics-issues-for-
lawyers/ Slide 58 Tips for Attorneys 4 Solicitation by real-time
electronic contact. Twitter has such open conversation and rapid
interaction capability that a lawyer must keep ABA Model Rule 7.3
(or the local equivalent) in mind. The rule forbids using real-time
electronic contact to solicit business directly from a potential
client. By way of illustration, when someone tweeted on Twitter
that she just got a DUI, a lawyer responded to her: If you are
looking for a DUI lawyer, I can give you my Twitter big break on
fees... email me. Unless the lawyer already had the requisite prior
relationship with the tweeter, that contact would violate ethical
rules in a number of states. Source(s): Susan Liebel, 12 Social
Media Ethics Issues for Lawyers (May 11, 2010),
http://solopracticeuniversity.com/2010/03/11/a-dozen-social-media-ethics-issues-for-lawyers
/
http://solopracticeuniversity.com/2010/03/11/a-dozen-social-media-ethics-issues-for-lawyers
/ Slide 59 Tips for Attorneys 5 Breaching client confidentiality.
The casual nature of social media can lure attorneys to
unintentionally breach client confidentiality. In a tweet a lawyer
wrote, Just talked to my client who totally lied to me about all
the facts. Since the date and time of the tweet gets posted, it has
the potential of revealing information to someone who might know
that the client was meeting with the lawyer that day. Source(s):
Susan Liebel, 12 Social Media Ethics Issues for Lawyers (May 11,
2010),
http://solopracticeuniversity.com/2010/03/11/a-dozen-social-media-ethics-issues-for-
lawyers/.
http://solopracticeuniversity.com/2010/03/11/a-dozen-social-media-ethics-issues-for-
lawyers/ Slide 60 Tips for Attorneys 6 TIPS: Do not attack the
integrity of a judge or any other decision-maker on social media.
The rules forbid it. Besides, it is not pretty. No one gains a good
reputation from being a hot head. I am a great believer in the
concept of Show - dont tell. It is proper to detail the the
complained-of conduct in an objective and cool- headed fashion.
This will not only keep the lawyer free of ethics violation - but
also prove more persuasive to the reader. Slide 61 Skit Number 3
Texting Who is Texting Now (Lawyers supervision of non Lawyer
staff) Ethical issues in Skit 3 1. Non Lawyer staff compliance with
Lawyer ethical rules related to advertising and solicitation of
clients when designing law firm web page 2. opposition research
using subterfuges to friend a witness for the opposing party in
violation of lawyer ethical rules. Slide 62 Ethical Issues for
Lawyers 1 Theme of Skit: A lawyers affirmative duties to educate
and supervise non-lawyer staff. Illinois Rules of Professional
Conduct 5.1 (Responsibilities of Partners, Managers &
Supervisory Lawyers) Illinois Rules of Professional Conduct 5.2
(Responsibilities of a Subordinate Lawyer Illinois Rules of
Professional Conduct 5.3 (Responsibilities Regarding Nonlawyer
Assistants) Lawyers use social networks as part of due diligence
and information collection. Often these tasks as well as a firms
website development are assigned to support staff. It is important
to keep in mind that the ethics rules apply to non-attorneys under
the supervision of attorneys. Slide 63 Ethical Issues for Lawyers 2
Suzy and Sallys plans for the firm are disastrous! In terms of the
website: - risk of creating unintended attorney-client
relationships. risk of violating attorney advertising &
solicitation rules risk of unauthorized practice of law. Lets look
at Suzy and Sallys plans for Friending the witness. They want to
get information that is not available to the public.: We know that
social networking sites can be valuable sources in gathering
evidence for litigation. And, we have all heard of law enforcement
using such undercover tactics. Even the news media tried this with
the show.........To catch a predator). Slide 64 Ethical Issues for
Lawyers 3 Can a lawyer or the lawyers agent send a friend request,
under false pretenses, to obtain information about an adverse party
or witness from a social networking site? Lets see what different
jurisdictions considering the question have to say: 1. Phila. Bar
Assn: Op. 2009-02 (March 2009).
http://www.philadelphiabar.org/WebObjects/PBAReadOnly.woa/Contents/WebServerResources/CM
SResources/Opinion_2009-2.pdf
http://www.philadelphiabar.org/WebObjects/PBAReadOnly.woa/Contents/WebServerResources/CM
SResources/Opinion_2009-2.pdf It IS misconduct for third party to
friend witness to get info for attorney. 2. New York Bar
Association Committee on Professional Ethics, Opinion 2010-2 (Sept.
2010). Lawyer may not attempt to gain access to a social networking
website under false pretenses, either directly or through an agent.
3. San Diego County Bar Legal Ethics Committee, Legal Ethics
Opinion, 2011-2 (May 24, 2011). Ethics rules bar an attorney from
making an ex parte friend request of a represented party. Slide 65
Ethical Issues for Lawyers 4 TIPS Educate and supervise Staff as to
ethics obligations in all aspects of the firms or organizations
work. Establish a social media policy in line with the rules. Do
not engage in Pretexting (using misleading tactics to gain
information). All law firm attorneys and managers need to role
model ethical behavior. They teach by everything they say or dont
say and by every action they take or dont take. The question How
does it look to the associates or staff is just as important as how
does it look to the public. It goes directly to the ethical health
of the organization. Slide 66 Discovery and Social Media 1 A lawyer
might try to obtain social media evidence through the normal
routes, like a subpoena or document request to the account holder.
But because online communications are created in a continuous
stream, lawyers may fear that the requests may in and of themselves
affect what might be posted in the future. Further, because online
communications are so fleeting and ephemeral, lawyers may have
heightened fears of spoliation of evidence -- i.e., that the
witness will erase all the comments from his MySpace page
immediately upon receiving the subpoena. Source: Kelly Balfour
Social Media and Ethics CLE power point presentation (September 11,
2012, NAALJ conference, New Orleans, Louisiana) Slide 67 Discovery
and Social Media 2 In 2010, an Indiana judge ordered two females
who had alleged to suffer from severe emotional distress as a
result of sexual harassment at their workplace, required the
females to disclose to the defense extensive information from their
MySpace and Facebook accounts, including all profiles, status
updates, wall posts, groups joined, causes supported, photos,
applications, and the like that reveal, refer, or relate to any
emotion, feeling, or mental state, as well as communications that
reveal, refer or relate to events that could reasonably be expected
to produce a significant emotion, feeling or mental state. Source:
EEOC v. Simply Storage Mgmt., LLC, No. 09-1223 (S.D. Ind. May 11,
2010) Slide 68 Discovery and Social Media 3 An Ontario judge
ordered a plaintiff in a motor vehicle suit to produce copies of
her Facebook pages. The defendant successfully argued that the
pages were likely to contain photographs relevant to the plaintiffs
damages claim, and was buttressed by the fact that the plaintiff
had served photographs showing herself participating in various
forms of activities pre-activities. In this matter, the court
concluded: Having considered these competing interests, I have
concluded that any invasion of privacy is minimal and outweighed by
the defendants need to have the photographs in order to assess the
case. The plaintiff could not have a serious expectation of privacy
given that 366 people have been granted access to the private site.
Source: Murphy v. Perger, [2007] O.J. No. 5511 (S.C.J.) (Ontario
Superior Court of Justice) Slide 69 Discovery and Social Media 4 In
Beye v Horizon Blue Cross Blue Shield of New Jersey, the plaintiff
alleged that the defendant, an insurance company, wrongfully
refused to pay health benefits for children's eating disorders. The
insurance company contended the disorders of the children were
non-biologically based mental illnesses and thus not covered under
the insurance policy. The defendant sought information on the
children's MySpace or Facebook pages. The court ordered the
plaintiffs to turn over the children's e-mails, diaries, and other
writings that were shared with other people about their eating
disorders, including entries on MySpace or Facebook, noting the
lower expectation of privacy where the person asserting the privacy
right made the information public in the first place. Source: Beye
v Horizon Blue Cross Blue Shield of New Jersey, (D.N.J. 2008) 568
F.Supp.2d 556 Slide 70 Occupy Wall Street and Twitter New York City
used the Twitter feeds of hundreds of protesters in an attempt to
quell the movement in support of charges for disorderly conduct. In
support of the prosecutors request for subpoenas of the Twitter
feeds, the DA outlined if a defendant is speaking publicly and
leaving a record, the government can access that information. Is
this an attack on free speech? Source:
http://www.rcfp.org/browse-media-law-resources/news-media-law/news-
media-and-law-summer-2012/subpoena-has-everyone-twitt
