Professionally Tweeting Ethical Issues and the Use of Social Media

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1 Professionally Tweeting Ethical Issues and the Use of Social Media Hilary Clarke Partner, McMillan LLP Rob Barrass Associate, McMillan LLP

2 Overview 1. Why is this issue important? 2. What are the relevant ethical rules? 3. What NOT to do 4. The Good, the Bad and the Ugly What the Future Holds 2

3 LSUC Professionalism Requirement What is Required? Twelve hours total Three hours of Professionalism How is Requirement fulfilled? Register, log in, click MyCPD, and select this course from the drop-down list. 3

4 Rushing to Social Media Facebook: 350 million to 500 million users in The most googled word in Canada. Twitter: Number of daily tweets tripled (to 95 million) in LinkedIn: 1 new member every second. Used to market, advertise, network, and share information. 4

5 Ethical Traps in the Use of Social Media For the young For the not so young 5

6 Ethical Consideration Sources Links: Rules of Professional Conduct and Commentary CBA Conduct of Conduct LSUC and CBA Technology Guidelines 6

7 The Rules of Professional Conduct The Rules of Professional Conduct apply to lawyers, whether offline or online. Rules most likely to apply in the context of social media include: a) Duty of Confidentiality Rule 2.03 b) Conduct unbecoming/harassment or Discrimination Rules 5 and 6 c) Entering into Lawyer/Client Relationship Rule 1.02 d) Marketing Rule

8 Remember: all of the Rules apply online. 8

9 Rule 2.03(1): A lawyer at all times shall hold in strict confidence all information concerning the business and affairs of the client acquired in the course of the professional relationship and shall not divulge any such information unless expressly or impliedly authorized by the client or required by law to do so. 9

10 Confidentiality Tips Positing online = Instant publication Your confidentiality obligations extend to blogs, Facebook posts, tweets, and more Do not post about business affairs Avoid inadvertent disclosure Research new forms of social media before you use them 10

11 Confidentiality Tips - General Privacy settings Develop awareness of how to minimize risk of disclosure Reply-all strings Auto-fill Removal of metadata 11

12 Emerging Confidentiality Risks New social media technologies are constantly emerging, along with new risks for lawyers. Consider: Location-based services (e.g., FourSquare, Google Latitude, Facebook Places) Cloud-based services (e.g., Microsoft Office Live, Google Documents, webmail) The Next Big Thing 12

13 Loss of Privilege and Social Media There must be an intention to maintain confidentiality to assert solicitor-client privilege A U.S. court recently required that a plaintiff who discussed legal strategy in blog posts produce related correspondence with her lawyers Lenz. v. Universal Music Corp. To maintain privilege, do not discuss ongoing legal matters online 13

14 Integrity and Personal Conduct Rule 6.01(1): A lawyer shall conduct himself or herself in such a way as to maintain the integrity of the profession. Rule 6.11(3): The Society may discipline a lawyer for conduct unbecoming a lawyer. Rule 1.02: conduct unbecoming a barrister or solicitor means conduct, including conduct in a lawyer s personal or private capacity, that tends to bring discredit upon the legal profession 14

15 Conduct Unbecoming Respect for Administration of Justice Rule 4.06 To be Courteous and Civil in Litigation Rule 4.01 Prohibition on Harassment and Discrimination Rule 5.03 and

16 Entering Lawyer/Client Relationship Rule 1.02 client Client relationship can be established informally, and extends to prospective clients Risks of Inadvertent Relationships Danger of giving off-the-cuff advice online Failure to protect information as confidential Rendering advice where conflict of interest Rendering advice outside jurisdiction in which licensed 16

17 Disclaimers Informational only. Not legal advice. No lawyer/client relationship. Discourage sending unsolicited confidential information. No responsibility for or endorsement of linked materials. Use plain language. Make your disclaimer prominent. 17

18 Marketing Rule (2): A lawyer may market legal services if the marketing: a) is demonstrably true, accurate and verifiable, b) is neither misleading, confusing, or deceptive, nor likely to mislead, confuse or deceive, and c) is in the best interests of the public and is consistent with a high standard of professionalism. 18

19 Under both the LSUC Rules and the CBA Code, lawyers marketing must not: raise expectations unjustifiably; mislead its audience; or otherwise undermine the interests of the public or the profession. This list is not exhaustive. Crucially, the same standards apply to conventional advertising and informal online marketing. 19

20 Marketing Tips Your website address, profile name, or graphics can also offend the Rules Images of snarling dogs (suggests aggression) Do not send advertising to substantial number of addresses Do not advertise such that you interfere with others use of media E.g., excessive size or volume of materials 20

21 Fighting Internet and Wireless Spam Act Prohibits sending commercial electronic messages without consent of the recipient. Subject to various exceptions Covers any form of telecommunications, including text, sound, voice or image messages. Fines up to $1 million for individuals, and up to $10 million for organizations. Not yet in force likely summer

22 What Not to Tweet Defence lawyer tweets: This stupid kid is taking the rap for his drug-dealing dirtbag of an older brother because he s no snitch. 22

23 What Not to Blog Fort Lauderdale lawyer blogged about a judge, repeatedly calling her an Evil, Unfair Witch. Lesson: It may be tempting to vent online, but think twice before posting about a hard day at work or court, no matter the forum. 23

24 How Not to Advertise He practices law the way law should be practiced aggressively. Commentary, Rule 3.02: Do not suggest or imply that the lawyer is aggressive. When you need the toughest, experienced and arguably the best Toronto lawyer, call [me]. Commentary, Rule 3.02: Do not suggest qualitative superiority to other lawyers. The results are invariably spectular (sic) successes. Commentary, Rule 3.02: Do not raise expectations unjustifiably. Life s short get a divorce you need not live in misery or in depression the jaws of the black dog. Commentary, Rule 3.02: Do not use testimonials which contain emotional appeals. 24

25 How Not to Judge? A magistrate in Shropshire, U.K., resigned after tweeting about decisions between hearings. His tweets included: Just about to hear application from three robbers from Manchester as to whether to remand or not. Called into court today to deal with those arrested last night and held in custody. I guess they will be mostly drunks but you never know. (Shropshire Star, April 25, 2009) 25

26 Deception is Never Acceptable As a young Texan lawyer learned, you never know who is following your online persona: A young lawyer requested to delay a trial due to a death in her family. Texas District Court Judge Susan Criss granted the delay. However, Judge Criss also checked the lawyer s Facebook page. After the funeral, the lawyer spent a week posting photos of parties, drinking, and motorcycle riding. When the lawyer requested an additional delay, the judge refused, and forwarded her Facebook research to the lawyer s senior partner. (New York Times, Sept. 13, 2009) 26

27 Business Risks from Social Media Defamation IP Infringement Disclosure of trade secrets & corporate information Invasion of privacy Your best defence: a Social Media Policy 27

28 Social Media Policies Two areas to control: 1.Employee conduct (work & non-work) 2.Official social media space Keep it simple. Establish core values/principles e.g.: Transparency, Respect, & Personal Responsibility Different policies for different classes of employees e.g.: Official spokespersons, executives, employees 28

29 Social Media Policy Key Points Should apply to work (if allowed) and non-work social media use Be broad. Do not limit to particular sites To obey laws and company policies online Only spokespeople may speak for the company Confidentiality Specify consequences Social media policies will be covered in greater depth in McMillan s next CPD session. Join us in February! 29

30 The Good: Benefits Social media can be a powerful toolkit for lawyers, their employers and their clients. It can help: build and maintain professional networks promote accomplishments attract new business follow new developments in law and business 30

31 The Bad: Risks If misused, social media can be a minefield of ethical and professional responsibility issues. For example: Confidentiality and loss of privilege Unbecoming conduct (professional and private) Unintentionally giving advice & creating conflicts Improper advertising and marketing 31

32 The Ugly Keeping up with Changes By the time you ve finished this seminar, the internet will have produced yet another new (potentially problematic) form of social media. 32

33 The (Deceptively Simple) Solution: 1. Know the Rules 2. Understand the Technology 3. Ensure your workplace has a social media policy and ensure that it is followed. 4. Exercise judgment and common sense! 33

34 Questions? Hilary Clarke Partner, McMillan LLP Rob Barrass Associate, McMillan LLP Brookfield Place, Suite Bay Street Toronto, Ontario M5J 2T3 34

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