Outline of Session 12/2/2013. Social Media & Government Legal and Ethical Issues. Part 1 - Legal Issues More Questions than Answers?

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1 Social Media & Government Legal and Ethical Issues Indiana Legal & Ethics Conference December 4, 2013 Presented by: Julie A. Tappendorf Ancel Glink, Chicago Outline of Session Part 1 Legal Issues with Government Use of Social Media Part 2 Employee Use of Social Media Part 3 Lawyer Ethics & Social Media Part 4 Social Media Policies Part 1 - Legal Issues More Questions than Answers? OMA and FOIA Compliance Records Retention First Amendment Copyright Issues 1

2 Open Meetings & Public Records Are social media interactions and communications by municipal officials meetings subject to OMA? Is information on a municipal social media site subject to release under FOIA? Are communications and other information posted on municipal sites subject to record retention laws? First Amendment Are postings on government social media sites protected by the First Amendment? Is a government social media site a public forum or government speech? Copyright Issues Does the government have permission to use content posted on its social media sites (i.e., photos and videos)? 2

3 Part 2 - Employment Issues The law is not settled Employers walk a tightrope in using and enforcing electronic information Employee Monitoring If employers monitor employee usage: Balance employer interest and employee privacy rights Provide notice to employees Social Media Passwords Legislation has been introduced in Congress, but no federal law exists A dozen states have enacted legislation to protect employee privacy Maryland was the first state to adopt legislation, with Illinois following shortly thereafter. 3

4 Employee Usage Employers can discipline for: Excessive use of social media at work Disclosure of confidential information Making false statements about employer Protected vs. not protected activities: Protected concerted activities among co-workers - protected Individual gripes and personal attacks not protected Part 3 Lawyer Use of Social Media Attorneys may inadvertently create an attorney-client relationship when using social media through chats, ing, and posting on blogs, Facebook, Twitter and similar forums. Limit reader feed-back Keep information general Use a disclaimer 4

5 ABA Model Rule 7.1 and 7.2 state that networking websites are considered communications and advertising ABA Model Rule 7.3 prohibits in-person, telephonic or real time electronic client solicitation for pecuniary gain. ABA Model Rule 4.2 prohibits contact with a person known to be represented by counsel ABA Model Rule 1.7 prohibits communication with adverse parties Lawyers should be aware that users of social media may not be using their real name, creating situations where a lawyer may be communicating with an adverse party 5

6 ABA Model Rule 1.6 prohibits breach of client confidentiality An attorney who reported her cases on a blog was disciplined because she was breaching the confidential nature of her client s case and communications ABA Model Rule 7.4 prohibits attorneys from stating they are specialized in a legal area unless certified by an authority. ABA Model Rule 5.5 prohibits the practice of law in a jurisdiction in violation of the jurisdictional rules Lawyers must be careful not to provide legal advice in a state where the lawyer is not licensed 6

7 ABA Model Rule 7.1 prohibits making false or misleading statements This prohibition has extended to statements written/posted on blogs and social networking sites such as Twitter and Facebook. ABA Model Rule 8.4(c) prohibits an attorney from deceitful conduct, including nondisclosure of material facts Philadelphia Bar Association extended this to a lawyer s use of a third party to friend a witness to gain access to her Facebook page Rule 3.6 prohibits a lawyer involved in a matter from making an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter 7

8 Lawyers must be careful not to engage in ex parte communications with judges regarding pending matters Bar opinions have been inconsistent whether lawyers and judges can be social media friends Part 4 - Importance of a Social Media Policy Social media policies are important to: 1. Govern the administration and monitoring of site content; 2. Set ground rules for public input and comments; and 3. Establish policies for employee use of social media 1. Purpose The policy should state the purpose of the policy to obtain or convey information that is useful to, or will further the goals of, the government. 8

9 2. Approval and Administration An administrator should be appointed to oversee and supervise the social media sites of the government. The administrator should be trained on the policy and his or her responsibilities. 3. Comment Policy The policy should identify the type of content that is not permitted on the site and that is subject to removal. 4. Compliance with Laws The policy should contain language concerning compliance with applicable federal, state, and local laws, regulations, and policies, including FOIA, OMA and records retention. 9

10 5. Employee Usage Policy The policy should establish clear guidelines and boundaries for employee social media activities. Employee Usage Policy, cont. Communicate whether social media use at work will be banned or allowed within reasonable time frames. Caution employees that they have no expectation of privacy on employer equipment. Inform employees of the possibility of monitoring. Require disclaimers if identified as employees. Prohibit use of government trademarks without consent. Protect confidential and sensitive government information. Require a signed acknowledgment of the policy. Train employees. Julie A. Tappendorf Ancel Glink jtappendorf@ancelglink.com (312) For more info, visit Julie s blogs: Municipal Minute Strategically Social 10