Published on March 14, 2014
Social Media Ethics for Attorneys Prof. Jonathan I. Ezor Touro Law Center for Innovation in Business, Law and Technology Counsel, Olshan Frome Wolosky firstname.lastname@example.org @ProfJonathan on Twitter NYC Bar Social Media CLE March 14, 2014
Electronic Communications Crucial for All Businesspeople • Multiple channels of electronic business communication – E-mail – Text messages – Web sites – Videoconferencing – Social media – Others • Can be one-way, two-way or multipoint email@example.com
Common Challenges of Electronic Business Communication • Addressing and attachment errors • Lack of nuance & tone • Heightened expectations of responsiveness • Informality • Compliance • Management firstname.lastname@example.org
Attorneys’ Ethical Obligations Add to Challenges • Rules of Professional Conduct impact on attorney communication • Lawyers must ensure compliance with those as well as with good business practices • Confidentiality biggest potential breach email@example.com
Newly Added Model Rule 1.6(c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client. firstname.lastname@example.org
Concluding Paragraph from ABA Technology Proposal • Technology can increase the quality of legal services, reduce the cost of legal services to existing clients, and enable lawyers to represent clients who might not otherwise have been able to afford those services. Lawyers, however, need to understand that technology can pose certain risks to clients’ confidential information and that reasonable safeguards are ethically required. The Commission’s proposals are designed to help lawyers understand these risks so that they can take appropriate and reasonable measures when taking advantage of technology’s many benefits…. email@example.com
Investigative Issues • How are social media being used? – Information about case? – Information about opposing counsel? Judge? – Information about parties? Witnesses? Jurors? • Front page article in Washington Post (May 29, 2010) about increasing use of subpoenas to obtain information from social networks: http://ezor.org/jpsvx firstname.lastname@example.org
Evidence Collected in Violation of Ethics Rules Probably Admissible, But…
Lying To A Tribunal • Model Rule 3.3 prohibits attorneys from making a false statement of fact to a tribunal • New connections via social media provide “channels” for discovery of such statements
Advising Clients on Social Media Posts • Ethical issues regarding clients’ social media posts • Questions of spoliation, disclosure • Rules different for civil, criminal matters email@example.com
Revised Model Rules 1.18(a) and (b) (a) A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client. (b) Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not use or reveal that information, except as Rule 1.9 would permit with respect to information of a former client. firstname.lastname@example.org
NYSBA Ethics Opinion 899 http://ezor.org/hsg1y
NYSBA Ethics Opinion 972 http://ezor.org/mwj05 CONCLUSION 6. A law firm may not list its services under the heading “Specialties” on a social media site. A lawyer may not list services under that heading unless the lawyer is certified in conformity with the provisions of Rule 7.4(c).
Recommendations • LinkedIn allows parties to “recommend” the work of a another participant. Issues? • What about asking a client to recommend your work? • Any other risks in posting information about your matters? email@example.com
Recommendations • Be mindful of rules that place limitations on the use and content of testimonials • Model Rule 4.1 (duty of candor) prohibits the making of a false statement of material fact to a third person – Beware of possible exaggerations regarding your biography, experience, etc. • What about asking a judge to recommend you? • What about announcing on Twitter, Facebook or LinkedIn that you just won a big jury trial or negotiated a big deal? firstname.lastname@example.org
Recommendations • Depending on the rules in your jurisdiction, this could require you to add a disclaimer along the lines of “results will vary in each case” or similar language • A related issue, depending on the content of your blogs or tweets – Could they be governed by your state’s restrictions on lawyer advertising? – If so, what are your obligations? email@example.com
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