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Social Media and Lawyer Ethics: More Than Just “Friends” and “Likes”

Explore the ethical implications and rules of professional conduct for lawyers when using social media. This presentation covers competence, advertising, confidentiality, interactions with others in the legal system, and advice to clients on social media use.

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Social Media and Lawyer Ethics: More Than Just “Friends” and “Likes”

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  1. Social Media and Lawyer Ethics:More Than Just “Friends” and “Likes” Presented by: Kati Miller Rothgery, Esq., Conflicts & Ethics Counsel Brownstein Hyatt Farber Schreck Ericka Houck Englert, Esq. Davis Graham & Stubbs Moderator: Christine A. Samsel, Esq. Brownstein Hyatt Farber Schreck June 13, 2019

  2. Social Media and the Rules of Professional Conduct • Competence – Rule 1.1 cmt [8] – we all need to develop knowledge • Advertising and Solicitation – Rules 7.1, 7.2, 7.3. 8.4(c) – the Rules of Professional Conduct apply even in cyberspace • Confidentiality – Rule 1.6 – you may be revealing more than you think • Interactions with judges, witnesses, jurors and other lawyers, evidentiary issues, discovery requests – Rules 3.3, 3.4, 3.5 • Advice to clients re use of social media – Rule 1.1, 3.4, 4.4

  3. Is There a Minimum Standard of Knowledge Required? • In 2016, the Colorado Supreme Court adopted a new comment addressing competence with regard to technology. Colo. RPC 1.1 cmt [8] • See also ABA Rule 1.1, Comment 8 indicating a lawyer should “keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology…” • See Jan L. Jacobowitz & Danielle Singer, The Social Media Frontier: Exploring a New Mandate for Competence in the Practice of Law, 68 U. Miami L. Rev. 445 (2014)

  4. Advertising Rules May Apply • Cal. State Bar Standing Comm. on Prof.’l Responsibility & Conduct, Formal Op. 2016-196: • Blogs are not subject to Rules re advertising and solicitation unless the contents expressly or impliedly indicate the attorney’s availability for employment • Contrast with: D.C. Bar Legal Ethics Comm., Ops. 370 & 371, Nov. 2016: • “any social media presence, even a personal page, could be considered advertising or marketing, and lawyers are cautioned to consider the Rules applicable to attorney advertising. . .” • See also ABAPractice Points https://www.americanbar.org/groups/litigation/committees/ethics-professionalism/practice/2016/advertising-linkedin/

  5. Avoiding Misrepresentation • LinkedIn endorsements: Rule 7.1 • Representative Matters on website bio • Rule 8.4(c): it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation…

  6. Maintaining Confidentiality • CBA Ethics Opinion 130 • Be careful what you blog about!

  7. Sometimes, It’s Better Not To Engage • People v. James Underhill, 15PDJ040 – Attorney was disciplined for, among other things, posting inflammatory comments that breached confidentiality on internet websites in response to clients who posted complaints. Conduct violated RPC 1.6(a) and 1.9(c)(2). • People v. Isaac, 15PDJ099 - Attorney disciplined for posting responses to online reviews by two clients. Attorney disclosed nature of clients’ legal matters, information about payments made for legal services, and other information. Conduct violated RPC 1.6. • New Colorado Bar Association Ethics Opinion 136, adopted April 2019

  8. Social Media as an Investigative Tool Philadelphia Ethics Opinion 2009-02: Attorney cannot friend request, or ask a third person to become Facebook friends, with a witness to gain impeachment information. Such act is deceptive in nature. No pretexting! New York Bar Assoc. Formal Opinion 2010-2: A lawyer can use information that is public or readily accessible as long as no deception is used to gain access. If it is public it is fair.

  9. Colorado Weighs In • The CBA Ethics Committee issued Formal Opinion 127 in September 2015 addressing the use of social media as an investigative tool. • Lawyer may view public information in a person’s social media profile, but, when acting on behalf of a client, may only access restricted information after identifying him or herself, detailing generally the basis for representation of the client, and requesting permission. • If the person is represented, lawyer must seek permission of counsel.

  10. Lawyers and Judges: Who’s Your Friend Now? North Carolina judge received a public reprimand for communicating with an attorney Facebook friend during trial. Before the Judicial Standards Commission, Inquiry No. 08-234 Public Reprimand, B Carlton Terry, Jr. Florida Supreme Court Judicial Ethics Advisory Committee determined a judge may not add lawyers who may appear before the judge as a friend on social networking sites. Florida Supreme Court Judicial Ethics Advisory Committee, Opinion No. 2009-20 South Carolina Advisory Committee on Standards of Judicial Conduct, Opinion No. 17-2009: A judge may be a member of Facebook and be friends with law enforcement officers and employees of the Magistrate as long as they do not discuss anything related to the judge’s position as magistrate.

  11. Proactive Use of Social Networks as Investigative Tools • Investigating a potential client’s social networking sites can inform your decision about whether to accept the case • Information posted to social media is/may be discoverable by other parties • Competence may requiresocial media-related investigations

  12. For Lawyers and Clients • Other users can disseminate without asking permission of the poster. This may make information vulnerable, even if it was intended to be “private.” • Posting may be voluntarily placing information into the “public sphere” and therefore make courts less willing to deem it private. • When does the duty to preserve kick in? Caution your clients and take a prudent approach.

  13. Spoliation – Beware! • A lawyer in Virginia stipulated to a five-year suspension after advising his client – the plaintiff in a wrongful death suit – to “clean up” his Facebook photos in order to make him seem more like a grieving spouse. • The client deleted sixteen photos, which were discovered by defense lawyers. Jurors were informed that there had been an attempt to delete the photos. • The court held lawyer and client jointly and severally liable for $722,000 in fees.

  14. Additional Resources • Pennsylvania Bar Association Formal Opinion 2014-300 – extensive study regarding the use of social media by legal professionals • See also “Preservation of Social Media Evidence in a Family Law Context” by Kevin C. Massaro and Taylor P. Statfeld in the May 2015 issue of The Colorado Lawyer

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