MAKING THE RIGHT CALL: DISCIPLINING/TERMINATING THE FMLA USER OR ABUSER 1

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1 LEGAL ETHICS & SOCIAL MEDIA Title Goes Here Presented By: Sarah Jung Evans Your Clients Are What about you? In 2008, only 15 percent of attorneys were engaged in online activity. 1

2 By 2010, that number had increased to 57 percent. Where are Attorneys online? Avvo LinkedIn Facebook Twitter Blogs Guest articles Firm websites RPC 1.6(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent or the disclosure is impliedly authorized in order to carry out the representation 2

3 RPC 1.6(a) & Social Media Keep information relating to the representation of a client confidential unless you obtain informed client consent otherwise. For example, an attorney discussing cases on Twitter, Facebook or a blog may breach confidences by stating what the attorney is doing at a particular time. RPC 1.6(a) & What NOT to do in Social Media One assistant public defender in Illinois whose actions have resulted in bar disciplinary action discussed actual cases on her blog in vivid detail: #12409 (the client s jail identification number) This stupid kid is taking the rap for his drug-dealing dirtbag of an older brother because he s no snitch. I managed to talk the prosecutor into treatment and deferred prosecution, since we both know the older brother from prior dealings involving drugs and guns. My client is in college. Just goes to show you that higher education does not imply that you have any common sense. RPC 3.6 An attorney who is or has participated in the investigation or litigation of a matter cannot make an extrajudicial statement he or she knows or reasonably should know will be public communication and has a substantial likelihood of materially prejudicing an adjudicative proceeding. 3

4 RPC 3.6 & Social Media Be careful about blog posts, tweets, and Facebook updates (even so-called private ones) which may reveal information that may prejudice proceedings. This is particularly true because jurors use the Internet when they go home in the evening and there is a risk of mistrial if lawyers participating in the case are blogging or tweeting about it. RPC 7.1 A lawyer shall not make a false or misleading communication about the lawyer or the lawyer s services. A communication is false 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. RPC 7.1 & Social Media Because a communication is considered false 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, using Twitter to broadcast specific case results may be unwise (140 character limit). 4

5 RPC 7.1 & Social Media The comments to this rule state that an unsubstantiated comparison of the lawyer s services or fees with the services or fees of other lawyers may be misleading if presented with such specificity as would lead a reasonable person to conclude that the comparison can be substantiated. As such, if you choose to make statements in social media which compare you to other attorneys, it is wise to include the appropriate disclaimer or qualifying language which would avoid an unjustified expectation of certain results. You should consider this rule when soliciting client recommendations on LinkedIn. RPC 7.2(b) A lawyer shall not give anything of value to a person for recommending the lawyer s services, except that a lawyer may (4) refer clients to another lawyer pursuant to an agreement not otherwise prohibited under these Rules that provides for the other person to refer clients or customers to the lawyer, if (i) the reciprocal referral agreement is not exclusive, and (ii) the client is informed of the existence and nature of the agreement. RPC 7.2(b) & Social Media For example, do not agree to send clients exclusively to a colleague in exchange for a recommendation on LinkedIn. 5

6 RPC 7.2(c) Any communication made pursuant to this Rule shall include the name and office address of at least one lawyer or law firm responsible for its content. Make sure any online advertising includes the name and office address of at least one attorney or firm responsible for the content. RPC 7.3(a) A lawyer shall not, directly or through a third person, by in-person, live telephone or realtime electronic contact solicit professional employment from a prospective client when a significant motive for the lawyer s doing so is the lawyer s pecuniary gain, unless the person contacted: (a) is a lawyer; (2) has a family, close personal or prior professional relationship with the lawyer; or (3) has consented to the contact by requesting a referral from a not-for-profit lawyer referral service. RPC 7.3 Avoid real-time electronic contact with prospective clients; this likely includes Facebook posts, , tweeting. WA permits general advertising and written, recorded or electronic communications to transmit information from lawyer to prospective client rather than real-time electronic contact. In other words, more static communications like blogs, and LinkedIn profiles are okay. 6

7 LinkedIn Be cautious regarding specialties; do not imply you are a specialist in a particular field of law RPC 7.4(d) Recommendation feature may violate RPC 7.2(b) Do not spam potential clients who have not reached out to you first. The "Recommendations" feature allows clients to say whatever they want. Ethical standards prevent some types of statements, such as comparisons to other attorney services absent objective data -- i.e., "Best lawyer in town." Pre-screen the recommendations before they are posted. Twitter Like Facebook, you need to be sensitive to revealing confidential information. Must be cautious about providing legal advice, establishing an attorney-client relationship, or soliciting legal work. RPC 7.3 includes prohibition on solicitation via real-time electronic contact. - Review In sum use your common sense when engaging in social media as an attorney Don t misrepresent or mislead.. Don t create an attorney-client relationship online You can offer legal education, keeping the information general, and don t advise a person to take a particular action affirmatively state that you are NOT their attorney. Don t make quid pro quo recommendations of other attorneys, or permit inaccurate reviews of your services online. 7

8 Getting in the Weeds Using Social Media in litigation Avoid violating the Stored Communications Act Don t pretend to be someone you are not to get them to friend you and give you non-public information on Facebook. Getting in the Weeds Using Social Media in Litigation But you CAN obtain publicly available information from Facebook, Twitter, blogs However, if you ask for the non-public material in discovery, be sure that your request is sufficiently relevant and not overly broad. Subpoenas to Facebook, etc., have not been extremely successful. THANK YOU! Sarah Jung Evans Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 601 Union Street, Suite 4200 Seattle, WA Telephone:

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