2015 WSSFC Pre-Conference Session 4 Advertising/Social Media Ethics and Malpractice Risks

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1 2015 WSSFC Pre-Conference Session 4 Advertising/Social Media Ethics and Malpractice Risks Aviva M. Kaiser, State Bar of Wisconsin, Madison Thomas J. Watson, Wisconsin Lawyers Mutual Insurance Company, Madison

2 About the Presenters... Aviva M. Kaiser is Assistant Ethics Counsel at the State Bar of Wisconsin. She has taught at the University of Wisconsin Law School for 25 years. She teaches Professional Responsibilities and has also taught Ethical and Professional Considerations in Writing, Problem Solving, and Risk Management. From 1992 until 2002, she was the Director of the Legal Research and Writing Program. Aviva received her B.A. in Chinese from the University of Pittsburgh and her J.D. from the State University of New York at Buffalo Law School. She clerked for the Honorable Louis B. Garippo in People v. John Wayne Gacy and clerked for the Honorable Maurice Perlin in the Illinois Appellate Court. She practiced law in Chicago before beginning her full-time teaching career at IIT Chicago/Kent College of Law. Thomas J. Watson is Senior Vice President and Director of Communications, Marketing & Risk Management at Wisconsin Lawyers Mutual Insurance Company. He is a 1981 Marquette University graduate with a degree in Journalism and Broadcast Communications, and a 2002 graduate of Marquette University Law School. Mr. Watson was a radio news broadcaster for thirteen years, before joining the State Bar of Wisconsin as public relations coordinator. Following law school, he was in private practice in Madison, focusing primarily on Family Law before joining Wisconsin Lawyers Mutual in 2005.

3 Lawyers and Social Media: What Could Possibly Go Wrong? Leaving Your Electronic Footprint without Breaking the Rules 2015 Wisconsin Solo and Small Firm Conference Aviva Meridian Kaiser, Assistant Ethics Counsel State Bar of Wisconsin 1

4 Introduction The use of social media platforms such as Facebook, Linkedin, and Twitter by lawyers and clients continues to grow. Moreover, social media platforms have increased and so have their sophistication. This rapidly changing area of social media presents new ethical challenges for lawyers in communicating with clients, advising clients about their social media, and advertising. This outline provides some guidance to assist lawyers in understanding some of those challenges: a lawyer s required competence in social media, a lawyer s own social media regulation, advising clients about adding or removing information from their social media, a lawyer s use of social media information provided by the client, viewing the public portion of a social media website, and contacting an unrepresented party to view a restricted social media website. A. Attorney s Social Media Competence A lawyer has a duty to understand the benefits, risks and ethical implications associated with social media. including its use as a mode of communication, an advertising tool and a means to research and investigate matters. See Guideline No. 1 New York State Bar Association Social Media Ethics Guidelines. 1. SCR 20:1.1 requires that a lawyer provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. ABA Comment [8] states: [8] To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject. 2. ABA Formal Opinion (2014) cautions: As indicated by [ABA Rule of Professional Conduct] Rule 1.1, Comment 8, it is important for a lawyer to be current with technology. While many people simply click their agreement to the terms and conditions for use of an [electronic social media] network, a lawyer who uses an [electronic social media] network in his practice should review the terms and conditions, including privacy features which change frequently prior to using such a network 3. New York City Bar Association Formal Opinion (2012) also cautions: A lawyer cannot be competent absent a working knowledge of the benefits and risks associated with the use of social media. [A lawyer must] understand the functionality of any social media services he intends to use for...research. If an attorney cannot ascertain the functionality of a website, the attorney must proceed with great caution in conducting research on that particular site. 4. While a lawyer may not delegate his or her obligation to be competent, he or she may rely, as appropriate, on professionals in the field of electronic discovery and social media to assist in obtaining such competence. 2

5 B. Attorney s Social Media As a general rule, an attorney s social media that is used only for personal purposes such as to maintain contact with friends and family is not subject to the attorney advertising rules. However, social media that an attorney uses primarily for the purposes of law firm business such as retaining clients is subject to the advertising rules. Hybrid social media may need to comply with the advertising rules. It is a good idea to keep personal social media separate from professional social media. 1. An attorney who maintains social media must understand the rules relating to recommendations and solicitations, especially when inviting others to view his or her social media. 2. A lawyer is responsible for all content that the lawyer posts on his or her social media. A lawyer also has a duty to periodically monitor his or her social media for comments, endorsements and recommendations to ensure that such third-party posts do not violate ethics rules. If a person who is not an agent of the lawyer unilaterally posts content to the lawyer s social media that violates the ethics rules, the lawyer must remove or hide such content if such removal is within the lawyer s control and, if not within the lawyer s control, he or she must ask that person to remove it. New York County Lawyers Association Formal Op See also Phila. Bar Assn. Prof l Guidance Comm. Op ; Virginia State Bar, Quick Facts about Legal Ethics and Social Networking. C. Advising Clients About Adding New Social Media Information A lawyer may advise a client with regard to posting new content on social media, as long as the proposed content is not known to be false by the lawyer. A lawyer may not direct or facilitate the client's publishing of false or misleading information that may be relevant to a claim. D. Advising Clients About Removing Existing Social Media Information A lawyer may advise a client as to what content may be maintained or made private on his or her social media account, as well as to what content may be taken down or removed, whether posted by the client or someone else, as long as there is no violation of common law or any statute, rule, or regulation relating to the preservation of information. Unless an appropriate record of the social media information or data is preserved, a party or nonparty may not delete information from a social media profile that is subject to a duty to preserve. Guideline No. 4A New York State Bar Association Social Media Ethics Guidelines 1. Philadelphia Bar Ass n Prof. Guidance Comm. Op (2014) concluded: It is the Committee s opinion that, subject to the limitations described below: (1) A lawyer may advise a client to change the privacy settings on the client s Facebook Page. 3

6 (2) A lawyer may instruct a client to make information on the social media website private, but may not instruct or permit the client to delete/destroy a relevant photo, link, text or other content, so that it no longer exists. (3) A lawyer must obtain a copy of a photograph, link or other content posted by the client on the client s Facebook page in order to comply with a Request for Production or other discovery request. (4) A lawyer must make reasonable efforts to obtain a photograph, link or other content about which the lawyer is aware if the lawyer knows or reasonably believes it has not been produced by the client. 2. New York County Lawyers Association Ethics Opinion 745 (2013) concluded: It is the Committee s opinion that New York attorneys may advise clients as to (1) what they should/should not post on social media, (2) what existing postings they may or may not remove, and (3) the particular implications of social media posts, subject to the same rules, concerns, and principles that apply to giving a client legal advice in other areas including RPC 3.1, 3.3 and 3.4. See also North Carolina Formal Ethics Op (2014) and Pennsylvania Formal Ethics Op (2014). E. Lawyer s Use of Social Media Information Provided by Client A question arises is when the client seeks to friend a person and then provides counsel with a copy of private or restricted information the client obtained from being granted access to that friend s social media site. Although Wisconsin has not addressed this issue, New Hampshire has opined that a lawyer s client may send a friend request and, if access is granted, the client can provide the information to his or her lawyer. The ethical propriety of such conduct depends on the extent to which the lawyer directed the client who is sending the [social media] request, and whether the lawyer has complied with all other ethical obligations. In addition, the client s profile needs to reasonably reveal[] the client s identity to the other person. New Hampshire Bar Association Ethics Committee Advisory Op /5. F. Viewing the Public Portion of a Social Media Website A lawyer may view the public portion of a person s social media profile or public posts even if such person is represented by another lawyer. Public means information available to anyone viewing a social media network without the need for permission from the person whose account is being viewed. Public information includes content available to all members of a social media network and content that is accessible without authorization to non-members. However, the lawyer must be aware that certain social media networks may send an automatic message to the person whose account is being viewed which identifies the person viewing the account as well as other information about such person. 4

7 At issue is whether an automatic message to a represented person constitutes a communication that is prohibited by SCR 20: SCR 20:4.2(a) provides that in representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order. 2. In New York, such automatic messages sent to a juror by a lawyer or her agent that notified the juror of the identity of who viewed her profile may constitute an ethical violation. New York County Lawyers Association Formal Op. 743; New York City Bar Association Formal Op However, the ABA opined that such a passive review of a juror s social media does not constitute a communication in violation of Rule 3.5. This Committee concludes that a lawyer who uses a shared [social media] platform to passively view juror [social media] under these circumstances does not communicate with the juror. The lawyer is not communicating with the juror; the [electronic social media] service is communicating with the juror based on a technical feature of the [electronic social media]. This is akin to a neighbor s recognizing a lawyer s car driving down the juror s street and telling the juror that the lawyer had been seen driving down the street. G. Contacting an Unrepresented Party to View a Restricted Social Media Website SCR 20:4.3 (a), which governs communications with unrepresented persons states: In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall inform such person of the lawyer's role in the matter. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client. 1. It is permissible for a lawyer to join a social media network to obtain information concerning a witness. N.H. Bar Ass n Ethics Advisory Comm., Op /05 (2012). A lawyer is prohibited, however, from friending an unrepresented individual using deception. SCR 20:8.4(c) prohibits a lawyer from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. See New York City Bar Association Formal Op (2010). 2. New York City Bar Association Formal Op (2010) concluded that there is no deception when a lawyer uses his or her real name and profile to send a friend 5

8 request to obtain information from an unrepresented person s social media website. The opinion further concluded that the lawyer is not required to disclose the reasons for making the friend request. 3. The New Hampshire Bar Association, in its Ethics Advisory Comm., Op /05, however, requires that a request to a friend must inform the witness of the lawyer s involvement in the disputed or litigated matter, the disclosure of the lawyer by name as a lawyer and the identification of the client and the matter in litigation. The Rules of Professional Conduct do not forbid use of social media to investigate a non-party witness. However, the lawyer must follow the same rules which would apply in other contexts, including the rules which impose duties of truthfulness, fairness, and respect for the rights of third parties. The lawyer must take care to understand both the value and the risk of using social media sites, as their ease of access on the internet is accompanied by a risk of unintended or misleading communications with the witness. The Committee notes a split of authority on the issue of whether a lawyer may send a social media request which discloses the lawyer s name - but not the lawyer s identity and role in pending litigation - to a witness who might not recognize the name and who might otherwise deny the request. [footnote omitted] The Committee finds that such a request is improper because it omits material information. The likely purpose is to deceive the witness into accepting the request and providing information which the witness would not provide if the full identity and role of the lawyer were known. 4. The Massachusetts Bar Association, in its Ethics Op (2014), concluded that it is not permissible for the lawyer who is seeking information about an unrepresented party to access the personal website of X and ask X to friend her without disclosing that the requester is the lawyer for a potential plaintiff. In so doing, the lawyer would be engaging in deceit forbidden by Rules 4.1 and 8.4(c). See Philadelphia Bar Association Opinion and San Diego County Bar Association Legal Ethics Opinion Moreover, this is a situation where not only is X likely to misunderstand the lawyer's role but also one where the lawyer has enabled the misunderstanding. See New Hampshire Advisory Ethics Opinion /05. We do not agree with the conclusion of the Oregon Ethics Committee in its Opinion No that the burden should be on the unrepresented party to ask about the inquirer's purpose rather than on the lawyer to disclose her identity and/or purpose. We believe that it is permissible to "friend" X in this situation in order to access nonpublic information only when the lawyer has been able to send a message that discloses her identity as the plaintiff's lawyer. Facebook, LinkedIn and other social media sites allow the invitation to include a message. We also do not agree with the suggestion in Formal Opinion of the New York City Bar Association's Committee that the lawyer's identification message may be contained in a "profile" created on the lawyer's personal social media 6

9 page. It is well known that "friending" requests are often granted quite casually, and viewing the invitee's profile is not necessarily a mandatory step in accepting a "friend" request. The lawyer's message must accompany the "friending" request in order to avoid the very real possibility that the recipient will be deceived. Although this communication medium is obviously different, the bottom line resembles a telephone call in which the lawyer does not adequately identify herself. 5. San Diego County Bar Association, in its Ethics Op (2011), concluded that a lawyer must disclose his or her affiliation and the purpose for the request. 7

10 Lawyers and Social Media: What Could Possibly Go Wrong? Leaving Your Electronic Footprint Without Breaking the Rules State Bar Solo & Small Firm Conference October 22, 2015 Thomas J. Watson Senior Vice President, Wisconsin Lawyers Mutual Insurance Company Lawyers are under pressure to use social media to market their law firm and stay connected to their clients. Although the use of social media can be a cost effective way to reach a large audience, lawyers risk losing control of their message, can create unrealistic client expectations, can inadvertently create an attorney-client relationship and generally risk running afoul of the rules of professional conduct. Learn the dos and don ts of operating effectively and appropriately in a web-based environment without losing sight of your ethical obligations. I. Social Media What are we talking about? A. No simple definition, and no clear cut rules! B. Some definitions: Web-based and mobile technologies turning communication into an interactive dialogue Group of internet-based applications allowing the creation and exchange of user-generated content C. Examples 1. Blogs 2. Twitter 3. Facebook 4. Google+ 5. YouTube D. Includes activities such as: 1. Logging into a computer (Laptops, desktops, when and where does it matter?) 2. Visits to web pages 3. File downloads 4. Searches (Google, Bing, etc.) 5. Blogging 6. Commenting on web pages (e.g. newspaper articles, message boards, Facebook accounts) 7. Mobile phone usage 1

11 II. Benefits A. Staying relevant/connected B. Large audience for marketing and advertising C. Immediacy and real-time nature of the medium D. Enhanced consumer interaction, visibility and feedback E. Ease of use of mobility and access F. Cost effective G. It s easy (maybe even fun) H. It can be viral expands fast and unexpectedly III. Risks A. Lack of control over your message B. Blurring of professional/personal use C. Administrative costs and time invested in managing use D. Ignoring rules of professional conduct in a web-based environment E. Creating unrealistic client expectations F. False or misleading communication about a lawyer s services IV. Business Opportunities, Legal Risks and Liabilities A. Client Development/Marketing The internet, and specifically social media, has played an increasingly important role in lawyers efforts to attract clients. 1. Social and professional networking 2. Blogging 3. Advertising 4. Law firm websites 5. Handling client matters electronically without boundaries 6. Clients can find you they search the internet now, not the yellow pages Risk Factors: 1. Inadvertently establishing a lawyer-client relationship (online) 2. Legal advice provided to a non-client (potential conflict of interest) 3. No oversight about how the firm or lawyers in the firm are being held out to the public 4. Snap decisions made on new client intake 5. Prohibited direct solicitation of prospective clients 6. Unauthorized practice of law/practicing out of jurisdiction/where are the clients coming from who show up on your blog/website? 2

12 B. Confidentiality Lawyers are more relaxed sharing sensitive client information in a web-based environment. 1. Online client intake 2. Mobile client data 3. Identity theft 4. Internet and mobile phone communications with clients Risk Factors: 1. Failure to backup/protect client information 2. Leaving computer on or unattended 3. Failure to secure wireless network 4. Inadequate security (antivirus software and a firewall) 5. Failure to remove metadata or password protect sensitive attachments 6. That darn auto fill! 7. Inadvertent disclosure of privileged or confidential client information 8. Disclosure of any information that relates to the representation of the client, without their informed consent 9. Failure to provide client with electronically stored file C. Negligence or Misconduct Anything you tweet can and will be used against you! 1. Gathering information through social networking websites 2. Providing legal advice 3. Solicitation of prospective clients Risk Factors: 1. Ex parte communication 2. Deceptive requests to gather information 3. Failure to advise client of risks inherent in using social networking sites 4. Direct contact with adverse party 5. Providing a roadmap for a legal malpractice claim against you 6. Erroneous legal advice made at the speed of light V. General Considerations for Lawyers In the Online World A. Communication SCR 20:1.4 3

13 Promptly informing the client Reasonably consulting with the client Keeping the client reasonably informed Promptly comply with reasonable requests by the client for information B. Confidentiality SCR 20:1.6 Duty of confidentiality Applies to: - Matters communicated in confidence by the client - All information relating to the representation of a client C. Solicitation SCR 20:7.3(a) Contact with a prospective client known to be in need of legal services, initiated by the lawyer for purposes of obtaining professional employment for pecuniary gain. Prohibits lawyers from using in-person, live-telephonic or real time electronic contact to solicit professional employment from prospective clients. SCR 20:7.3(c) does allow lawyers to solicit professional employment from prospective clients by targeted direct mail. The rule does not, however, define real-time electronic communication. Do targeted s, instant messages, chat room communication, Facebook or Twitter communication constitute prohibited real-time electronic communication? Or are those more akin to permissible targeted direct mail solicitations? Lawyers using Facebook or Twitter Must be mindful of the prohibition on solicitation by real-time electronic contact. D. Other Advertising Rules 1. Most lawyers and law firms now have a webpage 2. Websites are communications about the lawyer s services, therefore, they are subject to regulation under the advertising rules (SCR 20: ) 4

14 3. Any format through which a lawyer chooses to communicate their services is governed by the rules. See: Includes: a) Newspaper ads b) Facebook posts c) Twitter and other social media communications SCR 20:7.1 SCR 20:7.2 SCR 20:7.3 SCR 20:7.4 SCR 20:7.5 Communications concerning a lawyers services Advertising Direct contact with prospective clients Communication of fields of practice Firm names and letterheads VI. Recap General Pitfalls To Avoid When Using Social Media A. Don t talk about clients or their matters 1. Basic tenets of the lawyer-client relationship 2. Blurting out something on Facebook or Twitter or in a blog post worse than the elevator or party comment 3. Remember, even generic questions or comments about a matter you are handling could be read and recognized by someone on the other side B. Don t talk to clients about their matters 1. Some social networking tools have no privacy settings, some have limited privacy settings, and some have privacy settings that are so complex you never know for sure who can see the content you post 2. Best to avoid posting anything about a specific matter you are handling for a client, even if the client prefers communicating that way C. Know and respect the marketing-related Rules of Professional Conduct 1. Specifically, as cited above, SCR 20: Be careful what you say on Facebook, Twitter, etc. 5

15 D. Avoid the unauthorized practice of law 1. Anything you post on the internet can be accessed from anywhere in the world 2. Providing legal services online means you could be dealing with prospective clients outside of Wisconsin, or even outside the United States 3. Might want to include jurisdictions in which you are licensed to practice law on your webpage, Facebook. E. Avoid conflicts of interest 1. The very nature of social media makes you more vulnerable to conflict of interest situations 2. Much (most?) of the information posted on social networking sites is public 3. Who are you communicating with online (do you know who they are?) 4. Take reasonable steps to be sure you know with whom you are communicating 5. Be careful about what information you are sharing F. Don t give legal advice online 1. Providing legal information is one thing; providing legal advice is another 2. Information/advice distinction can get blurred when a lawyer and nonlawyer are communicating on a social network, especially if the lawyer is providing answers to specific questions 3. A lawyer-client relationship can be formed with very little formality G. Protect your identity 1. Hidden risk of social networking identity theft 2. Profiles can include information about you such as birth date, what law school you attended, mother s maiden name. Pre-internet era made this information very private, social networking sites make it much more accessible 6

16 H. Making the wrong friends 1. In the world of social networking, people you have never met will want to friend you 2. Social networking tools have the ability to create networks of contacts far larger than most of us had in the past 3. Think strategically about whom you want to be friends with I. Don t blur your personal and professional lives 1. MySpace and Facebook initially were almost entirely personal networking sites it was easier to keep your personal and professional online presences separate 2. Now many social networking tools are becoming connected and taking on more of a commercial or business aspect 3. Use different strategies and information, depending on whether you are using a social medium as a personal or professional connection tool VII. Internal Social Networking Policies A. Develop a policy to educate staff and clients regarding the appropriate use of blogs and social networking sites B. Include disclaimers on websites and social media pages C. Develop policies or guidelines regarding business use of social media vs. personal use of social media D. Consequences for failure to follow policy E. Be flexible social media continues to change and evolve VIII. Conclusion A. Online social networking sites and the use of electronic information provide unlimited resources that lawyers can use at a relatively low cost. B. Lawyers are under pressure to use social media to market their law firm and stay connected to their clients. 7

17 C. However, lawyers risk losing control of their message, creating unrealistic client expectations, inadvertently creating an attorney-client relationship and generally risk running afoul of the rules of professional conduct. D. Learn the dos and don ts of operating effectively and appropriately in a webbased environment without losing sight of your ethical obligations. E. Don t lose sight of your ethical obligations in accessing, or protecting a client from, information disclosed electronically F. Have fun online but do so responsibly! Thomas J. Watson is Senior Vice President and Director of Communications, Marketing & Risk Management at Wisconsin Lawyers Mutual Insurance Company. Tom is a 1981 Marquette University graduate with a degree in Journalism and Broadcast Communications, and a 2002 graduate of Marquette University Law School. He was a radio news broadcaster for thirteen years, before joining the State Bar of Wisconsin as public relations coordinator. Following law school, he was in private practice in Madison, focusing primarily on Family Law before joining Wisconsin Lawyers Mutual Insurance Company in

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