1 THE ETHICS OF SOCIAL MEDIA Successfully Navigating the Digital Terrain presented by
2 NAVIGATING THE SOCIAL MEDIA TERRAIN Continually evolving Great opportunities Risks!
3 WHY SHOULD WE CARE? Can t we just stick to the old ways?
4 BECAUSE THIS IS HAPPENING Social media has become an omni-present feature of modern life. Your associates and partners are using it. Your competitors are using it. Your clients are using it and they want you to use it too.
5 BECAUSE THIS IS HAPPENING Facebook Twitter Facebook Has 1.1 billion users 9 out 10 business execs are on Twitter Blogging LinkedIn Blogging 97% more clicks LinkedIn 238 million users
6 THE FIRST OBLIGATION We must be zealous advocates for our clients We must have a working understanding of the technology that can affect our clients We must be able to advise them appropriately We must have a complete frame of reference from which to strategize
7 WE CAN T BE OSTRICHES Ignorance isn t bliss
8 PITFALLS AND RISKS Facebook can be quicksand, and Twitter can seem like a stretch of white water rapids Social media is Loosely controlled: anyone can comment Informal / spontaneous Fast-paced Permanent (Discoverable!) Far-reaching / diverse audience Blurry lines: personal vs. professional lives
9 BASIC ETHICAL RULES (SOME OF WHAT WE CAN T DO) 1. Mislead or be deceitful 2. Contact represented parties 3. Hold ourselves out as a specialist when we are not 4. Breach attorney/client privilege 5. Breach broader duties of confidentiality 6. Allow or advise clients to destroy evidence 7. Practice in jurisdictions where we are not licensed 8. Make comments about our availability to do paid work (without a disclaimer) 9. Make statements regarding the quality of our legal work (without a disclaimer) 10. Allow, repeat or publish client testimonials (without a disclaimer) 11. Make guarantees, warranties, or predictions of legal outcomes
10 ADVERTISING INCLUDES COMMUNICATION CA Ethical Rule on Advertising includes any attorney communication. The rule defines a communication as any message or offer made by or on behalf of a member concerning the availability for professional employment of a member or a law firm directed to any former, present, or prospective client. ---California Rule of Professional Conduct 1-400
11 ETHICS RE: ADVERTISING Attorneys may not: 8. Make comments about our availability to do paid work (without a disclaimer) 9. Make statements regarding the quality of our legal work (without a disclaimer) 10. Allow, repeat or publish client testimonials (without a disclaimer) 11. Make guarantees, warranties, or predictions of outcomes
12 ETHICAL RULES & SOCIAL MEDIA Evolving technologies are a moving target Rules are evolving in response to changing technologies and situations Often unique from one state to another Check current opinions and rulings for guidance
13 ADVERTISING? OR NOT? Seemingly innocuous statements can be construed as advertising. Case finally over. Unanimous verdict! Celebrating tonight. Just published an article on wage and hour breaks. Let me know if you would like a copy.
14 ADVERTISING? OR NOT? Another great victory in court today! My client is delighted. Who wants to be next? Won a million dollar verdict. Tell your friends to check out my website. Won another personal injury case. Call me for a free consultation.
15 DIFFICULTY IS NO EXCUSE If it were easy, anybody could do it. The restrictions imposed by the professional responsibility rules and standards governing attorney advertising are not relaxed merely because such compliance might be more difficult or awkward in a social media setting, the opinion states. -California State Bar Standing Comm. on Professional Responsibility and Conduct, Formal Op
16 RETENTION All attorney communications must be retained for a certain number of years. Check with your State Bar for requirements Print copies of web pages Take screen captures PITFALLS Failing to retain everything, whether electronically or as hard copies. Forgetting to update records when website / content / posts are changed
17 INADVERTENT RELATIONSHIPS When you engage someone on social media, take care that you don t offer legal advice or information that could be construed as such. PITFALL: Failing to use appropriate disclaimers
18 RECRUITING Using social media to research candidates has become commonplace Discretion Illegal behavior Responsibility PITFALL Doing so can cause you to run afoul of laws regarding discrimination against a protected class
19 LINKEDIN Your page is your website, so you are responsible for the content. PITFALLS: Specialist Endorsements Testimonials
20 BLOGS PITFALLS Anonymous posts Disclaimers The accidental client
21 BLOGGING ABOUT PRIOR CASES? Yes with caution and consent in writing Focus on the implications of cases you win, not just the fact that you won. Too much boasting can seem like a promise of positive results Case results depend upon a variety of factors unique to each case. Case results do not guarantee or predict a similar result in any future case.
22 MORE ON BLOGGING ABOUT PRIOR CASES Public information vs. unethical disclosure No disparaging former clients Free speech is limited in many states
24 TWITTER 77 of Fortune Global 100 firms have accounts Think before you tweet! There is no Undo Put a disclaimer on your profile page PITFALLS Confidentiality Advertising Inadvertent exposure
25 FACEBOOK 70% of Fortune 500 companies have a Facebook page Your firm s Facebook page can build credibility: Helpful legal information Links to articles of interest / Current events Bios of attorneys PITFALLS Cyber-sleuthing Duty to preserve
26 CHECK-INS, LOCATIONS & TRACKING Many social media channels have tracking functions Facebook s check-in feature Things you post can reveal your location and current activities Vacation photos The Cheesecake Factory has a new pumpkin carrot cake that is to die for! Metadata & location information can harm your clients too inform them
27 OTHERS Google + Instagram Tumblr Pinterest Youtube
28 BLOOPERS Attorney who asked for continuance for death in family caught partying on FB. An attorney blogs that the judge is an "evil, unfair witch," and "seemingly mentally ill. Attorney juror blogs about jury experience, gets verdict reversed. Partner twitters f-word, consequences tbd
29 EXAMPLES OF SOCIAL MEDIA POLICIES Be Smart. Don t be stupid. -Microsoft, 2005 Be real and use your best judgment. -Zappos
30 WHEN USING SOCIAL MEDIA Don t exaggerate your skills. Don t write about clients without express consent. Watch out for plagiarism be careful if you paraphrase someone else and always give credit / citations. Don t give legal advice. Don t use images illegally.
31 WHEN USING SOCIAL MEDIA Don t be rash or reactive in a public forum, and don t adopt a defensive posture if criticized. Remain objective and calm. Don t neglect to monitor and manage your social media sites. Don t disparage or defame anyone especially a judge or a former client. Don t forget that everything is discoverable.
32 LIST OF ETHICAL RULES (SOME OF WHAT WE CAN T DO) 1. Mislead or be deceitful 2. Contact represented parties 3. Hold ourselves out as a specialist when we are not 4. Breach attorney/client privilege 5. Breach broader duty of confidentiality 6. Allow or advise clients to destroy evidence 7. Practice in jurisdictions where we are not licensed 8. Make comments about our availability to do paid work (without a disclaimer) 9. Make statements regarding the quality of our legal work (without a disclaimer) 10. Allow for client testimonials (without a disclaimer) 11. Make guarantees, warranties, or predictions of legal outcomes
34 ALTEP, INC. Over 20 years experience Offices throughout the US, in Dublin and in London Full range of tailored services Digital Forensics E Discovery Compliance
35 REFERENCES AND CITATIONS Cal. Bus. & Prof. Code 6157(c). California Rule of Professional Conduct 1-400, Advertising and Solicitation. Illinois Attorney Registration and Disciplinary Commission (RPC 1.6(a), RPC , RPC ) Philadelphia Bar Association's Professional Guidance Committee Opinion (March 2009) New York State Bar Association Committee on Professional Ethics Opinion 843 (September 10, 2010) 10 Social Media Must Haves for your Corporate Compliance and Ethics Program, Sheppard Mullin s Social Media Law Blog 12 Tips for Reducing Online Dangers and Liabilities, Law Practice Management Section of the American Bar Association e/lpm_magazine_articles_v36_is4_pg26.html How to Create a Law Firm Social Media Policy bruary/how-to-create-a-law-firm-social-media-policy.html With "Friends" Like These-The New "Face" of Legal Practice: Ethical Implications in Cyberspace and Social Media, State Bar of California Ethics of Social Media for Lawyers, Bar Association of San Francisco Ethical Implications and Social Media, National Academy of Continuing Legal Education
36 infographic _review_leads_to_disciplinary_complaint advertising_rules_may_be_applied_to_a_law/ words-long/ Guidelines Explain How Ethics Rules Apply to Lawyers Use of Social Media Networks by Joan Rogers, ABA/BNA Lawyers Manual on Professional Conduct