Navigating the Intersection of Social Media, the Internet and Legal Ethics

*This presentation is for informational purposes only and should not be considered legal advice or opinion.

Today’s Panel

Brian Colucci, Chief BD & Marketing Officer, Kilpatrick Townsend & Stockton LLP

Geoff Hazard, Miller Distinguished Professor of Law Emeritus, University of California, Hastings College of the law

Michele Colucci, CEO, Justiquity

Andrew Gordon, CMO, MyLawsuit.com

How Big Is Social Media?A few fun facts…Facebook829 million daily active users as of June 2014Average number of friends per Facebook user: 141 as of June 2014LinkedIn300 million users as of May 20143 million companies with LinkedIn company pages as of June 2013Twitter1 Billion registered twitter users as of June 2013Average number of tweets sent per day: 500 million as of June 2013YouTubeMore then 1 billion unique visitors per month*Over 6 billion hours of video are watched per month** From YouTube Statistics Page

Some Interesting Stats from the ABA Technology Survey Via the Business of Law Blog (3/28/14)

81% of attorneys say they use social media; but not necessarily for professional use

22.6% of Law Firm have no social media presence

26.9% of Law Firms have legal blogs

10% of individual Lawyers have blogs

39.1% of blogs resulted in clients or referrals

Why Social Media Matters to the Legal Profession

Search engines use social data in determining how high a Lawyer’s or a Law Firm’s website should rank.

Social sites go a long way towards establishing an attorneys brand and credibility with the public and their peers.

Social Media websites can be a valuable resource for gathering information on litigation.

Social Media Special Sauce

Social Media data can sometimes be evidence in criminal and civil matters.

Comments, images and geo-location maybe highly relevant in criminal prosecution or in civil litigation cases in areas such as Family Law and Personal Injury.

During the jury selection process savvy legal teams can perform real-time searches of potential jurors.

Lawyer Blogs and Law Firm Blogs

Best uses of blogging:

• Gaining new clients• Establishing expertise and thought leadership• Brand building• Expanding your referral network• Website optimization for long tail searches• Social Media amplification

LinkedIn

Best uses of LinkedIn:

• Establishing a referral network

• Social Media amplification of Lawyer and Law Firm blogs

• Recruiting and job candidate search

Twitter

Limited use by lawyers, but useful for media / PR and client relations

• Social Media amplification of Lawyer and Law Firm blogs• Following Journalists• Following Clients• Distribution of Press Releases and Key Announcements

YouTube

Remember YouTube is an online social medium!

Video delivers ideas and positions with more authority and emotional impact

Best Uses of YouTube:

• Branding the practitioner and not the Law Firm• Differentiating legal services

Facebook Best uses of Facebook:

• Branding your Law Firm with a Facebook company page

• Social Media amplification of Lawyer and Lawyer Firm blogs

• Social validation of your Law Firm*

*Consumers use social media to validate a choice they found through a search engine

Best Practices – Ethical Rules and Etiquette

• Adopt and publish a firm-wide social media policy that is:• Tailored to your client base• Updated frequently• Tells employees in different roles what they can and cannot do• Reinforces online and ‘off-line’ existing standards of conduct within the

organization• Honors the distinction between personal expression of opinions and

protection of client relationships

Social Media Policies – Content and Activities to be Restricted and/or Limited

• Posting of information that could be mistaken for legal advice or opinion• Content that looks, feels or sounds like or can be mistaken for an official

firm statement.• Discussion of any non-public, proprietary or confidential information about

the firm’s clients• Responding to comments made in blogging forums by members of the

public or media• Manipulating third-party ratings (including search engine rankings)• Forcing employees or staff to participate in social media activities

Social Media Policies – Content and Activities to be Restricted and/or Limited (Continued)

• Usage of client logos or descriptions of client engagements• Disparaging competitor firms and/or lawyers (particularly opposing

counsel)• Sending or accepting requests where there is no existing relationship• Posting of video, audio or other media without permission of owner or

proper credit• Misrepresenting or misleading information about identity• Posting information that could be construed as advertising or soliciting of

client relationships

Disclaimers – Four Key Concepts for Content that Could be Considered ‘Advertising’

1. Identification of the content as attorney advertising; 2. A statement indicating that the content is intended for information only

and should not be viewed as legal advice or opinion; 3. A statement indicating that the provision of the information does not

create or infer an attorney-client relationship; and 4. A statement indicating that information about specific results in one case

do not guarantee similar results in another and do not constitute a client endorsement or ‘testimonial.’

Legal Resources – the Basics• California Bar Rules Guidelines – CA Rules of Professional Conduct

• Governs attorney and law firm content published on the internet and attorney or law firm advertising or marketing websites. General requirements all lawyers and law firms must abide by when engaging in advertising and solicitation.

• State Bar Formal Ethics Opinion 2001-155: Web sites fall within rules regulating attorney print advertising in the California Rules of Professional Conduct.

Legal Resources – the Basics• Prohibited Statements on California Legal Websites

• Rule 1-400(D)(6), restricts usage of the term "certified specialist“ without a current certificate issued by the Board of Legal Specialization.

• Additionally, Rule 1-400(D)(1) No solicitation or communication made by an attorney in California for advertising purposes may contain false and/or misleading statements.

Legal Resources – the Basics• Disclaimers on California Law Firm Websites

• Best practice to include statements that warn visitors they should not expect similar results and expressly disclaim guarantees of similar results.

• Under Rule of the California Rules of Professional Conduct, Rule 1-400(D)(4), clearly, expressly or by context indicate the information is merely a communication or solicitation and should not be considered legal advice or opinion. Additionally, state that information does not and is not intended to create an attorney-client relationship.

Legal Resources – Additional Considerations • Reasonableness – if it’s unethical in the ‘real’ world, it’s likely unethical in

the ‘virtual’ world• The law has not kept up with the pace of technical change, but it is trying

(i.e., through advisory opinions and case law interpretation)• Social media policies and disclaimers still largely advisory in nature and

vary greatly in scope / coverage• Adopt policies and draft disclaimers that are specific to your firm and client

base – for example:• Sophisticated clients vs. retail or consumer law clients• Terminology for clients in specific industries

Helpful Links• CA State Bar Rules of Professional Conduct: http://

rules.calbar.ca.gov/Rules/RulesofProfessionalConduct/CurrentRules.aspx• CA Bar Ethics Opinions: http://ethics.calbar.ca.gov/Ethics/Opinions.aspx

LinkedIn Best Practices• Be strategic accepting and extending invitations to connect• Understand client policies about what you can / can’t say about your

relationship• Be careful with endorsements and recommendations – reasonable duty to

monitor!• Understand state bar rules regarding advertising and limitation of certain

designations (i.e., describing lawyer as a ‘specialist’ is still restricted in many states)

• Understand settings for privacy and controlling the type of information that is received by different members of your network

• For firm-owned pages, link to disclaimer language or disclaim as necessary

Blogging Best Practices• Similar in many respects to LinkedIn• Consider same disclaimers / usage policies as for main firm Web site• Be clear as to ownership / control of the blog (distinguish from blogs of

individual lawyers or staff)• Control usage of firm logo and/or materials on individual lawyer and staff

blogs• Monitor and moderate posting of comments (or disallow)• Establish system for review of posts that will ensure posts don’t conflict

with client legal or business interests• Monitor and control use of third party copyright and trademark protected

information, photos, videos, etc.