Blogs, Websites and Social Networks Navigating Legal Ethics and Regulations in Online Advertising and Networking

Transcription

1 Presenting a live 90 minute webinar with interactive Q&A Ethical Risks in Attorney Marketing via Blogs, Websites and Social Networks Navigating Legal Ethics and Regulations in Online Advertising and Networking WEDNESDAY, MARCH 13, pm Eastern 12pm Central 11am Mountain 10am Pacific Td Today s faculty features: Ethan J. Wall, Attorney, Richman Greer, Miami Jorge Espinosa, Founding Member, Espinosa Trueba, Miami The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions ed to registrants for additional information. If you have any questions, please contact Customer Service at ext. 10.

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5 Ethical Risks in Attorney Marketing via Blogs, Websites and Social Networks Strafford March 13, 2013

6 Jorge Espinosa Ethan Wall #SocialMediaLaw

7 Attorney Marketing and Ethics Attorney Marketing via Blogs, Websites, and Social Media Ethical Risks Social Media Marketing & Blogging Best Practices to Avoid Online Marketing Pitfalls #SocialMediaLaw

8 What is Legal Marketing?

9 What is legal marketing? Marketing can be defined as conduct by an attorney designed to generate or maintain business. 1 Legal Malpractice 4:2 (2013 ed.) 9

10 Florida Rules of Professional Conduct Allows advertising through a broad variety of media but does not define the term Gives a broad meaning: any communication conveying information about a lawyer's or a law firm's services 10

11 Marketing rules apply to traditional online venues Your firm website. E mails But also to less traditional and more socially interactive sites such as: Blogs Forums Chat rooms 11

12 Blogs or Blawgs Blogs are discussion or information sites. Blawgs are blogs on a legal theme. Lawyers publish blogs to enhance their reputation, demonstrate professional capacity and grow the firm's business and their own practices. Often they outsource the work to marketing companies that are not always sensitive to ethical issues. 12

13 @EthanWall #SocialMediaLaw 13

15 Forums Forums are like bulletin boards. Many blogs have chat features. They allow someone to post a topic and others can respond to the post or to the responses. Forums provide a double threat: The temptation to self promote and To express legal opinions without adequate basis. 15

16 Chat Rooms Chat rooms are real time interactive forums. ABA Model Rule 7.3(a) bars real time electronic communication with a prospective client to solicit employment as well as livetelephone and inperson communication unless the prospective client is a lawyer or has a prior relationship with the soliciting lawyer. A lawyer may not solicit prospective clients through Internet chat rooms becauseit involves real time communications. Florida Advertising Opinion A 00 1 (2000) 16

17 Social Networking Sites Social networking sites are like websites, mail servers, blogs, forums and chat rooms rolled into one and pumped up on steroids. Social networking sites are not just facebook and linkedin but include dozens of competing services including photo and video sites. 17

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19 Attorney Marketing Via Blogs, Websites, and Social Media

20 Traditional Online Marketing Legal Blogs Firm Websites Bulletin Boards #SocialMediaLaw Discussion i Forums 20

21 Attorneys Leverage Marketing Activities on Social #SocialMediaLaw 21

23 Social Media

24 What is Social Media? Online communities of people who share interests & information through user created profiles. Allow users to post pictures, comments, and other materials. Users can invite i friends to access their profiles and interact over the internet. #SocialMediaLaw

25 Popular Social Media Sites #SocialMediaLaw

26 New Popular Social Media Sites 26

27 Facebook

28 A social utility that connects people with friends and others who work, study, and live around them. Create a profile, add friends, send them messages, and update their personal profiles with pictures, videos, and blogs. Offer privacy features that allows users to restrict titaccess to all or parts of a profile by requiring users to accept a friend request. #SocialMediaLaw

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32 How Attorneys & Firms Use Social Media Promote themselves, their practice, and their firm. News about client success stories and firm accomplishments can be disseminated to a vast online community. Establish their knowledge or skills. Sharing blog posts, articles of interest, and news about publications and presentations help build your reputation. Build a sense of community. Potential clients want to hire firms with attorneys they know, like, and trust. #SocialMediaLaw

40 Facebook Timeline Timeline is the new Facebook profile. #SocialMediaLaw

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43 Update Friends and Followers About Speaking and legal updates Share Your Blogs and Online Publications 43

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48 LinkedIn

49 LinkedIn is a free online directory and professional networking site that has membership of more than 50 million professionals from around the world. LinkedIn allows users to set up profiles listing job experience, schools attended, and other biographical #SocialMediaLaw 49

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54 Twitter

55 Twitter is a free, web-based micro-blogging service that enables users to share information through text-based posts of up to 140 characters called tweets. Twitter users follow others with similar personal or professional interests t and receive updates throughh their online twitter profile or mobile phone. #SocialMediaLaw

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60 Twitter is a free, web-based micro-blogging service that enables users to share information through text-based posts of up to 140 characters called tweets. Twitter users follow others with similar personal or professional interests and receive updates through their online twitter profile or mobile phone. Twitter is a service for friends, family, and co workers to communicate and stay connected through the exchange of quick, frequent answers to one simple question: What are you doing? #SocialMediaLaw

63 What About Law Firm Staff?

64 What is your staff up to? In the year prior to March 15, % of U.S. companies investigated the exposure of confidential, sensitive, or private information via a posting to a social networking site; 10% have disciplined an employee for violating social networkingpolicies; and 8% reported terminating an employee for such a violation. Proofpoint ttechnologies 64

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66 Are firm staff marketing? Staff social ilinteraction ti on line may reveal client confidential information. You are responsible for their indiscretions. Even seemingly benign comments about the firm may breach FTC regulations or bar advertising guidelines. 66

67 Bar Association Guidance on Attorney Social Media Marketing

68 American Bar Association The ABA amended its Model Rules of Professional Conduct to include Internet Advertising. ABA President Carolyn B. Lamm announced the creation of the Commission on Ethics 20/20 in 2009, recognizing that [t]echnological advances and globalization have changed our profession in waysnotyet reflected in our ethics codes and regulatory structure. 68

69 Florida Bar The Florida Bar revised its Guidelines for Networking Sites on May 8, Social media used solely for social purposes with family and close fi friends are not subject to advertising rules. The question is whether postings on the social media are open to the general public or to a limited group of family or followers. Postings restricted to followers of the particular lawyer, are considered information at the request of a prospective client and are not subject to the lawyer advertising rules under Rule 4 7.1(h). 69

70 The Twitter Problem However, General Twitter posts available to all are subject to the advertising rules. Since Twitter posts have a 140 character limit fitting in the required information can leave no room for the post. So publicly l available Twitter posts are practically prohibited. 70

71 Social Networking Pages Pages appearing on networking sites that are used to promote the lawyer or law firm s practice are subject to the lawyer advertising rules. However, because they are similar to firm web sites, pages pg on networking sites need not be filed with the bar. past results testimonial But banner ads posted on a social networking site are advertisements and must not only comply with but must be filed for review! promises of results characterizinging quality 71

72 Invitations are Solicitations Invitations sent directly from a social media site via instant messaging to a third party to view or link to the lawyer s page on an unsolicited basis for the purpose of obtaining, or attempting to obtain, legal business are solicitations in violation of Rule 4 7.4(a), unless the recipient is the lawyer s current client, former client, relative, has a prior professional relationship with the lawyer 72

73 Misconduct Even if information is not subject to the lawyer advertising rules information remains subject to the general misconduct rule, which prohibits any conduct involving fraud, deceit, dishonesty or misrepresentation under Rules 4 7.1(i) and 4 8.4(c). If you overstate a fact or exaggerate a position in an online post while debating an issue have you committed a violation? 73

74 Specific Ethical Risks in Social Media Marketing

75 Is Social Media An Unethical Marketing Medium? No. Rules of professional conduct do not govern the method of communication, but rather addresses its substance. Are blogs and social media advertisements subject to advertising ethical rules? May you post information about your past cases? #SocialMediaLaw

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77 Virginia State Bar v. Hunter The overwhelming majority areposts about cases in which h Hunter obtained favorable results for his clients. The posts reported only on past cases, not current ones. Nowhere in these posts or on his website did Hunter include #SocialMediaLaw 77

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79 Virginia State Bar v. Hunter The Bar claimed that the blog constituted an advertisement because Hunter was writing articles about results in his own cases. Hunter refused to add adisclaimer. The blog therefore violated Rules 7.1 and 7.2 insofar as his posts discussing his criminal cases lacked disclaimers. i #SocialMediaLaw

80 Virginia State Bar v. Hunter The Bar also asserted that Hunter violated Rule 1.6 by revealing information that could embarrass or likely be detrimental to his former clients by discussing their cases on his blog without their consent. Virginia s Rule 1.6 is not limited to attorneyclient #SocialMediaLaw 80

81 Virginia State Bar v. Hunter Following a hearing, the Bar found Hunter violated each provision and imposed sanctions. Publicly admonished Required to remove the casespecific content t for which h he has not received consent Post a disclaimer that complies with Rule 7.2(a)(3) on all case-related #SocialMediaLaw 81

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83 Virginia State Bar v. Hunter While it is settled that attorney advertising is commercial speech, these cases focused only on traditional media. In recent years, however, advertising has taken to new forms such as websites, bit blogs, and other social il media forums, like Facebook and #SocialMediaLaw 83

84 Virginia State Bar v. Hunter Commercial Speech: Hunter has admitted that his motivation for the blog is at least in part economic. The blog is on his law firm s commercial website rather than an independent d site ddi dedicated tdto the blog. Wbi Website uses the sameframe for the pages openly soliciting i i clients as it does for the #SocialMediaLaw 84

86 Virginia State Bar v. Hunter Confidentiality: The Court Reversed To the extent that the information is aired in a public forum, privacy considerations must yield to First Amendment protections. ti In that respect, a lawyer is nomoreprohibited than any other citizen from reporting what transpired in the #SocialMediaLaw 86

87 Unintended Disclosures and Legal Advice

88 The unintended disclosure Another successful deal! Loved Guangzhou but can t wait to get home. With this post you may have disclosed enough information to alert a competitor to your client s confidential business information. 88

89 An opinion matters A legal opinion expressed without qualification creates an attorney client relationship even if the attorney is not engaged. Togstad v. Vesely, Otto, Miller & Keefe, 291 N.W.2d 686 (Minn. 1980) (per curiam). Model Rule defines a prospective client as a person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter and imposes duties of preserving confidences of, and avoiding conflicts of interest with, prospective clients. 89

90 Unauthorized practice of law If you form an inadvertent legal relationship withapersononlineyoumayhavepracticed law in his/her jurisdiction. Even if not, you may have violated the marketing requirements of thejurisdiction. For example, Florida legal advertising requirements apply tooutof state lawyers. Rule

91 No advise is the best advise In an Illinois ethics opinion, the Bar stated that when a lawyer participates in a chat group or other online service that permits the offering of personalized legal advice, the attorney is engaged in the practice of law and the recipient of the advice becomes a client. Ill. Ethics Op (1997). 91

92 Controversial blogging The Illinois Attorney Registration and Disciplinary Commission (ARDC) filed a disciplinary dscp ay complaint last month against attorney Joanne Denison for statements made in her self described attorney blog concerning corruption and greed in the Probate Court of Cook County regarding, g, amongst other things, the reputation and integrity of a judge. 92

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94 The Florida Bar v. #Meritas 94

95 The Florida Bar v. Conway #SocialMediaLaw

96 The Florida Bar v. Conway #SocialMediaLaw

100 Endorsements and dtestimonials i

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102 Federal Trade Commission Liability Dewey Cheatam and Howe, PL is the best PI firm in town happyintern02 16 CFR 155 When there exists a connection between the endorser and the seller of the advertised product that might materially affect the weight or credibility of the endorsement ( i.e., the connection is not reasonably expected td by the audience), such connection must be fully disclosed. 102

103 Who is Hotpuppy21? ppy Rule generally prohibits lawyers, directly or through agents, from communicating about a matter directly with a person who is represented by another lawyer in that matter. ABA Model Rule prohibits a lawyer from communicating with judges, jurors and other officers involved in a matter about that matter without communicating contemporaneously with the other parties involved. 103

104 Permissible & Prohibited Friendships

105 Riddle me this A good lawyer knows the law, but a great lawyer... #SocialMediaLaw

106 Riddle me this A good lawyer knows the law, but a great lawyer... knows the judge. But can you friend a judge on Facebook? #SocialMediaLaw

108 Florida Judicial Advisory Ethics Opinion May a judge may add lawyers who may appear before the judge as friends on a social networking #SocialMediaLaw 108

109 Florida Judicial Advisory Ethics Opinion No. This conduct violates Canon 2B, because the judge conveys or permits others to convey the impression that the friends are in a special position to influence the judge. Listing lawyers who may appear before the judge as friends on a judge's social networking page reasonably conveys to others the impression that these lawyer friends are in a special position to influence the judge. #SocialMediaLaw

110 Florida Judicial Advisory Ethics Opinion May a judge may establish a social networking campaign page which has permits lawyers who may appear before the judge to list themselves as "fans" or supporters of the judge's candidacy? 110

111 Florida Judicial Advisory Ethics Opinion May a judge may establish a social networking campaign page which has permits lawyers who may appear before the judge to list themselves as "fans" or supporters of the judge's candidacy? Yes. This practice is not prohibited by Canon 2B so long as the page is maintained by a committee of responsible persons and the committee cannot accept or reject lawyers listing themselves as a fan.

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114 California Judges Association Judicial Ethics Committee Opinion 66 A per se prohibition of social networking with lawyers who may appear before a judge is not mandated by the Canons. To set out a per se rule barring all interactions with attorneys who may appear before the judge would ignore the realities of an increasingly gy popular pp and ubiquitous form of social interaction which is used in a wide variety of #SocialMediaLaw 114

115 California Judges Association Judicial Ethics Committee Opinion 66 But: A judge may not include lawyers who have an actual case pending before the judge. When a judge learns that an attorney who is a member of that judge s online social network has a case pending before the judge the online interaction with that attorney must cease (i.e. the attorney should be unfriended ) and the fact this was done should be #SocialMediaLaw 115

116 Best Practices to Avoid Online Marketing Pitfalls

117 Establish a Social Media Policy Your law firm should implement a social media policy that instructs employees about the appropriate use of social media. In addition to protecting the firm from ethical risks a social media policy may also insulate the firm from FTC violations: [I]f the employer has instituted policies and practices concerning "social media participation" by its employees, and the employee fails to comply with such policies and practices, the employer should not be subject to liability. 117

118 Apply Existing Ethical Rules to Social Media Common Ethical Pitfalls to Avoid: Avoid providing legal opinions and recommendations. This will also avoid an issue conflict within your firm. Be careful not to unintentionally create attorney-client relationships. Never post client confidential information or proprietary firm information. #SocialMediaLaw

119 Don t Accept Candy from Strangers Don t Accept Candy from Strangers If you do not known someone, do not accept a friend request. Advise Your Colleagues to be Aware of Inappropriate Friendships. Attorneys unfamiliar with social media may be unaware of prohibition of befriending judges or opposing counsel. 119

120 Ethical Rules Apply Equally to Social Media Follow the Applicable Rules of Ethics or Professional Conduct in Your Jurisdiction A new medium does not mean an unregulated medium. Project a Professional Image at All Times Use privacy settings to avoid unwanted content by others. Don t Become a Slide in this Presentation Learn from the examples set by others. 120

121 Social Media Guide for Lawyers

129 Jorge Espinosa is a founding member of Espinosa Trueba, PL, and an intellectual property boutique. The firm handles all aspects of intellectual property litigation and prosecution and is currently managing trademarks in over 60 countries worldwide. In addition to substantial work in anti counterfeiting, parallel market and NPE patent litigation, Jorge s practice includes work on the legal issues related to the Internet and cloud computing. He works with clients to develop both short term and long term strategies in integrating cloud and internet resources into their business safely and with a clear understanding of the risks and benefits.. Espinosa Trueba PL and Jorge are AV Preeminent rated by Martindale Hubble and have been named to the International Trademark Review Top 1000 firms for three years in a row, an honor shared by fewer than five firms in Florida Brickell Ave., Suite 100 Miami, (305) jespinosa@etlaw.com 129

130 Ethan Wall, Esq. Social Media Law & Order Ethan Wall concentrates in internet, intellectual property, and social media law at Richman Greer, P.A. in Miami. Recognized by Chambers as an Associate to Watch, a FloridaRising Star by Florida Super Lawyers Magazine, and as one of Florida s Top Up & Comers by Florida Trend Magazine, Ethan frequently presents and publishes articles on the effect of social networking and the internet on the law. Ethan co-authored the Social Media Guide for Lawyers, a practical guide on how lawyers and law firms can use social media to effectively, ethically, and responsibly use social media to promote their practice. The Guide can be downloaded at com Ethan also authors the Social Media Law and Order blog about the effect of social media on the law at 130

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