Online Social Networking Legal Professionals Must Proceed with Caution

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1 LAWYERS PROFESSIONAL LIABILITY update Professional Liability Insurance for Lawyers and Law Firms Spring 2010 Volume 10 Number 1 Online Social Networking Legal Professionals Must Proceed with Caution Author: Vicki Voisin, ACP If you haven t already climbed aboard the social media bandwagon, you may be in the minority. Leader Networks conducted a survey in 2009 for LexisNexis Martindale-Hubbell wherein approximately three-quarters of lawyers reported they are members of a social or professional network such as MySpace, Facebook, or LinkedIn. Over a third surveyed said they read and comment on articles, blogs, and other online content, many at least once a week. 1 Lawyers in this study cited two primary reasons for their participation: to more easily exchange information and experience between peers and to increase visibility among peers. The survey concluded that while lawyers are still undecided about the real value of social media, they believe online networking will change the business and practice of law over the next five years. 2 Many law firms spend hundreds, even thousands, of dollars printing elaborate brochures or advertising in telephone directories and newspapers. The problem with this kind of marketing is that it limits you to your local market. Online social networking, however, can provide infinitely more exposure at virtually no cost to you. Nearly free advertising and increased exposure may sound tempting, but these objectives may collide with your ethical responsibilities. If you are not cautious, your online activities could result in disciplinary sanctions. Social networking can provide amazing opportunities. However, along with its potential usefulness, attorneys should be aware of its potential hazards and limitations.... while lawyers are still undecided about the real value of social media, they believe online networking will change the business and practice of law over the next five years. 1 See 2009 Networks for Counsel Study. A complete copy of the study can be accessed online at 2 Ibid. (continued on page 2) 1

2 (continued from page 1) Online Social Networking Legal Professionals Must Proceed with Caution What is Social Networking? Social networking is merely a new tool. Prior to social networking, lawyers wrote articles, made presentations, and conducted workshops to increase credibility, raise their visibility, establish their expert status, and communicate with clients, potential clients, and other professionals. Social networking enables lawyers to do the same thing, but at lightning speed and to a much larger, diverse audience... compounding the opportunities for making errors and ethical blunders. Social networking sites, such as MySpace and Facebook, are free-access sites where users create profile pages that may be accessible by the public depending upon the user s privacy settings. Profiles may include personal information such as date of birth, employment history, city of residence, and, sometimes, relationship status. Users also may upload photographs and post real-time updates to their profiles. Less than twenty years ago, social web sites did not exist. No one had heard of MySpace, Facebook, or LinkedIn nor did they know anything about blogging, podcasts, or webinars; these are all commonplace today. The Internet offers professionals from all around the world access to social networking sites. Through social networking, it is possible to have a relationship with individuals living and working across state lines, not to mention London or Tokyo. Social networking sites were initially considered to be frivolous online hangouts for kids and teenagers, a place for them to waste their time. That perception has changed dramatically. Today these sites are attracting an increasing number of businesses and professionals, including legal professionals. The first recognizable social networking site launched in Today, there are so many social networking sites it is impossible to cover all of them. Consequently, we ll focus on the most popular. Of particular interest is the number of members these sites have, as well as how recently they were formed. MySpace was originally launched in 2003 for three distinct groups of users: musicians/artists, teenagers, and the post-college crowd. It has expanded to be an interactive, user-submitted network of friends, personal profiles, blogs, groups, photos, music, and videos for both teenagers and adults. MySpace has over 200 million members. Facebook opened in 2004 and was initially a Harvard-only network. Today Facebook has expanded to include everyone including legal professionals and has over 400 million users. LinkedIn is primarily used for professional contacts. Members post profiles, which are essentially online resumes, and can receive recommendations from other members. This site is especially useful for connecting with individuals in a like industry, job seekers, or those looking for new employees. LinkedIn has more than 35 million registered users spanning 170 industries. 2

3 Social Networking Concerns Those considering online social networking should keep in mind that every word posted on the Internet is and forever will be available for public viewing. Before connecting, friending, and posting, consider the following. Social media is not private. Judge Susan Criss, a Galveston, Texas, state court judge, relayed an interesting personal story as part of the 2009 ABA program Courts and Media in the 21st Century: Twitterers, Bloggers, the New Media, the Old Media, and What s a Judge to Do? Judge Criss admitted learning to adapt to social media as a way to connect with long-lost friends, leveraging Facebook as a tool and then learning a few surprising things on Facebook... The judge granted a continuance requested by a lawyer upon the death of the lawyer s father. Judge Criss also checked the lawyer s Facebook page. While there was a funeral, there was also a string of status updates posted on Facebook that detailed not mourning her dear departed father, but, instead, the lawyer s week of drinking and partying. If you do choose to participate in social networking, do not lose sight of the fact that social media is very public even when privacy controls are in place. Covert research may be prohibited. Because social networking sites are jam-packed with incriminating evidence, questions have been raised about attorneys ethical limitations regarding virtual research. Is it ethical to use deception? This was the question addressed in the Philadelphia Bar Association s Opinion (March 2009). The inquirer sought to access a witness s MySpace and Facebook pages by asking a third person presumably a paralegal to visit the site and seek to friend the witness to obtain access to the witness s personal pages. While the paralegal would provide truthful information, she would not reveal her affiliation with the lawyer or her true purpose for accessing the witness s personal pages. Opinion determined such conduct would be deceptive and not allowed under its rules of professional conduct. If lawyers want access to personal social network sites, they must ask for access directly. While ethics opinions may vary from state to state, lawyers should take care not to engage in online deception. Confidential client information must be protected. There is an obvious danger of unintentionally revealing client confidences as you blissfully post online ABA MRPC 1.6(a) prohibits lawyers from revealing information relating to the representation of a client unless the client consents, the disclosure is impliedly authorized to carry out the representation, or disclosure is permitted by paragraph (b). When lawyers post online, they often have a false sense of security as though they can say anything they want in cyberspace without consequences. Consider the case of In re Qullinan, 20 DB Rptr 288 (2006), where an Oregon lawyer stipulated to a 90-day suspension for a LISTSERV posting that disclosed a former client s confidential, personal, and medical information. If you do choose to participate in online social networking, be cautious you do not post any information that might compromise your duty of confidentiality to your client. Transactions with persons other than clients also may be a problem. With the wide variety of people accessing the Internet and social networking sites, it is possible you could unintentionally communicate with a party already represented by counsel a violation of ABA MRPC 4.2. This rule says 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. 3

4 What about the Rules of Evidence? The Florida Judicial Ethics Advisory Committee considered whether a judge may add lawyers who may appear before the judge as friends on a social networking site and permit the lawyers to add the judge as their friend. The Committee concluded in a November 2009 Opinion ( ) that this was unethical. A North Carolina judge was reprimanded for communicating ex parte with a lawyer regarding a pending trial in which the lawyer was representing one of the parties. The communications took place on their Facebook pages. 3 If you do choose to participate in social networking, be sure your communications are not with represented persons and cannot be misconstrued as an attempt to influence a member of the judiciary. The Unauthorized Practice of Law can occur with the click of your mouse. ABA Model Rule 5.5 says at (a) that A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so. and at (b) A lawyer who is not admitted to practice in this jurisdiction shall not (1) except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or (2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction. Attorneys must satisfy the rules of evidence if they want to use photographs, comments, or connections found on an individual s profile page from a site like Facebook or MySpace as evidence in the courtroom. Rule 401 of the Federal Rules of Evidence defines relevant evidence as evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. 4 FRE 403 prohibits admissibility if [the potential piece of evidence] is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury... 5 Similar rules are contained in State evidentiary rules. Recent cases have demonstrated if evidentiary admissibility is satisfied, information discovered on a member s profile page can be extremely useful. The prosecutor in a Michigan murder trial, People v Liceaga, sought to admit photographs discovered on the defendant s MySpace page. The photographs were of the defendant displaying a gang sign and the gun allegedly used to shoot the victim. The appellate court upheld the admission of the MySpace evidence finding that its probative value was not substantially outweighed by the danger of unfair prejudice. 6 So how can a lawyer commit the unauthorized practice of law from his own desk on social networking sites? It s really quite simple. Let s say you are licensed to practice law in the state of Ohio and you receive a legal question on your Facebook page from a person who resides in Wisconsin. If you answer the question, you are practicing law in a state where you are not licensed. Even when answering a question out of the goodness of your heart, you are still practicing law. This is a good time to point out you also may unintentionally establish an attorney-client relationship with a person when you answer a question over the Internet. 3 In re: Terry, N.C. Judicial Stds Comm., Inq. No (Apr.1, 2009) 4 See Fed. R. Evid See Fed. R. Evid People v Liceaga, No Mich. App (continued on page 5) 4

5 (continued from page 4) Online Social Networking Legal Professionals Must Proceed with Caution Internet advertising and print advertising have the same rules. ABA MRPC 7.1 addresses communications regarding lawyer services and says, A lawyer shall not make a false or misleading communication about the lawyer or the lawyer s services. A communication is false If you participate in online social networking, be sure you do not state anything in your personal or firm profile that is not true. 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. If you participate in online social networking, be sure you do not state anything in your personal or firm profile that is not true. For instance, if you do not have a specialty in tax law, don t say you have one in your profile. If you are fortunate enough to have someone post a testimonial for you on LinkedIn, be sure you do not permit them to post false or misleading statements in those recommendations. Most state bars treat Internet advertising the same way they treat print advertising. However, there is no consistency among state bars. The ABA offers a page with a link to each state s advertising rules: adrules/states.html. Social networking does not make it okay to speak your mind about the legal system. The New York Times reported on September 12, 2009, that attorney Sean Conway was steamed at a Fort Lauderdale judge. Mr. Conway did what millions of angry people do these days: he blogged about her, saying she was an Evil, Unfair Witch. Mr. Conway ultimately consented to a reprimand from the bar and paid $1, In another example... an Illinois lawyer referred to Judge Clueless on her blog and, in addition, failed to protect the identities of her clients and confidential details of cases. Attorney Kristine A. Peshek lost her job as an assistant public defender after 19 years of service over her blog posting. 8 Conclusion There is no mystery or magic to online social networking. It does not require special talent and can be an excellent way to communicate and promote yourself and your firm. Online social networking is about building relationships, learning more about your clients, their businesses and industries. It s a combination of these factors which may, in turn, introduce you to new, potential clients. This is the viral nature of online social networking. Remember that the rules of professional conduct always apply to online social networking. Social networking seems so informal and friendly and at the same time encourages an instant response. These factors may cause lawyers to act without using necessary professional judgment and without consideration of the consequences of their online comments. As such, lawyers considering participation in social networking sites need to proceed with caution. 7 Schwarz, A Legal Battle: Online Attitude vs. Rules of the Bar New York Times, September In the Matter of Peschek, Ill. Atty. Reg. and Disc. Comm., No. 09 CH 89 (August 25, 2009) Vicki Voisin, The Paralegal Mentor, delivers simple strategies for paralegals and other professionals to create success and satisfaction by setting goals and determining the direction they will take their careers. Vicki spotlights resources, ethics issues, organizational tips, and other areas of continuing education to help paralegals and others reach their full potential. She publishes a weekly ezine titled Strategies for Paralegals Seeking Excellence available at She also co-hosts The Paralegal Voice, a monthly podcast produced by Legal Talk Network ( 5

6 ProAssurance Casualty Company ProAssurance Indemnity Company, Inc Professionals Drive P.O. Box 150 Okemos, Michigan Georgia Lawyers Insurance Program 125 Flat Creek Trail, Suite 200 Fayetteville, Georgia Telephone: Fax: PRSRT STD US POSTAGE PAID PROASSURANCE This newsletter is published three times per year for the benefit of ProAssurance insureds. Suggested topics for future issues and address updates should be directed to Connie DeMarco at the number listed above. Find risk management articles and information archived on our web site at Printed on recycled paper. Copyright 2010 ProAssurance Corporation DISCLAIMER: Articles in this publication are neither official statements of position nor should they be considered as professional legal advice to individuals or organizations Conference Dates GEORGIA: State Bar of Georgia Amelia Island Plantation Amelia Island, FL June INDIANA: Defense Trial Counsel of Indiana 17th Annual Conference Blue Chip Casino Michigan City, IN November OHIO: Ohio State Bar Annual Convention Dayton Convention Center Dayton, OH May 5-7 Ohio Association of Civil Trial Attorneys Kingsgate Marriott Cincinnati, OH November MICHIGAN: Michigan Defense Trial Counsel Doubletree Hotel Bay City, MI May State Bar of Michigan Young Lawyers Section Annual Summit Grand Traverse Resort Acme, MI June 4-6 State Bar of Michigan Upper Michigan Legal Institute Grand Hotel Mackinac Island, MI June State Bar of Michigan Devos Place/Amway Grand Grand Rapids, MI September 29-October 1 6