“Professionally Tweeting”Ethical Issues and the Use of Social Media

Hilary ClarkePartner, McMillan LLP

Rob BarrassAssociate, McMillan LLP

1. Why is this issue important?

2. What are the relevant ethical rules?

3. What NOT to do

4. The Good, the Bad and the Ugly – What the Future Holds

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Overview

LSUC Professionalism Requirement

• What is Required?• Twelve hours total• Three hours of Professionalism

• How is Requirement fulfilled?

• http://portal.lsuc.on.ca/wps/portal/• Register, log in, click “MyCPD”,

and select this course from the drop-down list.

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Rushing to Social Media

Facebook: 350 million to 500 million users in 2010. The most “googled” word in Canada.

Twitter: Number of daily tweets tripled (to 95 million) in 2010.

LinkedIn: 1 new member every second.

Used to market, advertise, network, and share information.

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Ethical Traps in the Use of Social Media

• For the young

• For the not so young

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Ethical Consideration – Sources

Links:

• Rules of ProfessionalConduct and Commentary

• CBA Conduct of Conduct

• LSUC and CBA Technology Guidelines

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The Rules of Professional Conduct

The Rules of Professional Conductapply to lawyers, whether offline or online. Rules most likely to apply in the context of social media include:

a) Duty of Confidentiality – Rule 2.03b) Conduct unbecoming/Harassment

or Discrimination – Rules 5 and 6c) Entering into Lawyer/Client

Relationship – Rule 1.02d) Marketing – Rule 3.02

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Remember: all of the Rules apply online.

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Rule 2.03(1): A lawyer at all times shall hold in strict confidence all information concerning the business and affairs of the client acquired in the course of the professional relationship and shall not divulge any such information unless expressly or impliedly authorized by the client or required by law to do so.

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Positing online = Instant publication

Your confidentiality obligations extend to blogs, Facebook posts,tweets, and more

Do not post aboutbusiness affairs

Avoid inadvertent disclosure

Research new forms ofsocial media before you use them

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Confidentiality Tips

Privacy settings

Develop awareness of how to minimize risk of disclosure

Reply-all

Email strings

Auto-fill

Removal of metadata

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Confidentiality Tips - General

New social media technologies are constantly emerging, along with new risks for lawyers.

Consider:• Location-based services

(e.g., FourSquare, Google Latitude, Facebook Places)

• Cloud-based services (e.g., Microsoft Office Live, Google Documents, webmail)

• The “Next Big Thing”

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Emerging Confidentiality Risks

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• There must be an intention to maintain confidentiality to assert solicitor-client privilege

• A U.S. court recently required that a plaintiff who discussed legal strategy in blog posts produce related correspondence with her lawyers

• Lenz. v. Universal Music Corp.

• To maintain privilege, do not discuss ongoing legal matters online

Loss of Privilege and Social Media

Rule 6.01(1): A lawyer shall conduct himself or herself in such a way as to maintain the integrity of the profession.

Rule 6.11(3): The Society may discipline a lawyer for conduct unbecoming a lawyer.

Rule 1.02: “conduct unbecoming a barrister or solicitor” means conduct, including conduct in a lawyer’s personal or private capacity, that tends to bring discredit upon the legal profession…

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Integrity and Personal Conduct

• Respect for Administration of Justice – Rule 4.06

• To be Courteous and Civil in Litigation – Rule 4.01

• Prohibition on Harassment and Discrimination – Rule 5.03 and 5.04

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Conduct Unbecoming

Rule 1.02 – “client”• Client relationship can be established

informally, and extends to prospective clients

Risks of Inadvertent Relationships• Danger of giving off-the-cuff advice online

• Failure to protect information as confidential

• Rendering advice where conflict of interest

• Rendering advice outside jurisdiction in which licensed

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Entering Lawyer/Client Relationship

• Informational only. Not legal advice.

• No lawyer/client relationship.

• Discourage sending unsolicited confidential information.

• No responsibility for or endorsement of linked materials.

• Use plain language.

• Make your disclaimer prominent.

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Disclaimers

Marketing – Rule 3.02

3.02(2): A lawyer may market legal services if the marketing:

a) is demonstrably true, accurate and verifiable,

b) is neither misleading, confusing, or deceptive, nor likely to mislead, confuse or deceive, and

c) is in the best interests of the public and is consistent with a high standard of professionalism.

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Under both the LSUC Rules and the CBA Code, lawyers’ marketing must not:

• raise expectations unjustifiably;• mislead its audience; or• otherwise undermine the interests of the public or the

profession.

This list is not exhaustive. Crucially, the same standards apply to conventional advertising and informal online marketing.

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Marketing Tips

Your website address, profile name, or graphics can also offend the Rules

• E.g., “@BestTaxLawyerToronto”• Images of snarling dogs

(suggests aggression)

Do not send advertising to substantial number ofemail addresses

Do not advertise such that you interfere with others’ use of media

• E.g., excessive size or volumeof materials

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Fighting Internet and Wireless Spam Act

• Prohibits sending commercial electronic messages without consent of the recipient.

• Subject to various exceptions

• Covers any form of telecommunications, including text, sound, voice or image messages.

• Fines up to $1 million for individuals, and up to $10 million for organizations.

• Not yet in force—likely summer 2011

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What Not to Tweet

Defence lawyer tweets:

“This stupid kid is taking the rap for his drug-dealing dirtbag of an older brother because ‘he’s no snitch’”.

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Fort Lauderdale lawyer blogged about a judge, repeatedly calling her an “Evil, Unfair Witch.”

Lesson: It may be tempting to vent online, but think twice before posting about a hard day at work or court, no matter the forum.

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What Not to Blog

• “He practices law the way law should be practiced—aggressively.”

Commentary, Rule 3.02: Do not suggest or imply that the lawyer is aggressive.

• “When you need the toughest, experienced and arguably the best Toronto lawyer, call [me].”

Commentary, Rule 3.02: Do not suggest qualitative superiority to other lawyers.

• “The results are invariably spectular (sic) successes.”Commentary, Rule 3.02: Do not raise expectations unjustifiably.

• “Life’s short—get a divorce—you need not live in misery or in depression—the jaws of the black dog.”

Commentary, Rule 3.02: Do not use testimonials which contain emotional appeals.

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How Not to Advertise

A magistrate in Shropshire, U.K., resigned after tweeting about decisions between hearings.

His tweets included:

“Just about to hear application from three robbers from Manchester as to whether to remand or not.”

“Called into court today to deal with those arrested last night and held in custody. I guess they will be mostly drunks but you never know.”

(Shropshire Star, April 25, 2009)

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How Not to… Judge?

As a young Texan lawyer learned, you never know who is following your online persona:

A young lawyer requested to delay a trial due to a death in her family. Texas District Court Judge Susan Criss granted the delay.

However, Judge Criss also checked the lawyer’s Facebook page. After the funeral, the lawyer spent a week posting photos of parties, drinking, and motorcycle riding.

When the lawyer requested an additional delay, the judge refused, and forwarded her Facebook research to the lawyer’s senior partner.

(New York Times, Sept. 13, 2009)

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Deception is Never Acceptable

• Defamation• IP Infringement• Disclosure of trade secrets

& corporate information• Invasion of privacy

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Business Risks from Social Media

Your best defence:a Social Media Policy

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Two areas to control:1.Employee conduct (work & non-work)2.Official social media space

Keep it simple. Establish core values/principles

• e.g.: Transparency, Respect, & Personal Responsibility

Different policies for different classes of employees

• e.g.: Official spokespersons, executives, employees

Social Media Policies

Social Media Policy – Key Points

• Should apply to work (if allowed) and non-work social media use

• Be broad. Do not limit to particular sites

• To obey laws and company policies online

• Only spokespeople may speak for the company

• Confidentiality

• Specify consequences

Social media policies will be covered in greater depth in McMillan’s next CPD session.

Join us in February! 29

The Good: Benefits

Social media can be a powerful toolkit for lawyers, their employers and their clients.

It can help:• build and maintain professional networks• promote accomplishments• attract new business• follow new developments in law and business

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The Bad: Risks

If misused, social media can be a minefield of ethical and professional responsibility issues.

For example:• Confidentiality and loss of privilege• Unbecoming conduct (professional and private)• Unintentionally giving advice & creating conflicts• Improper advertising and marketing

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The Ugly – Keeping up with Changes

By the time you’ve finished this seminar, the internet will have produced yet another new (potentially problematic) form of social media.

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The (Deceptively Simple) Solution:

1. Know the Rules

2. Understand the Technology

3. Ensure your workplace has a social media policy and ensure that it is followed.

4. Exercise judgment and common sense!

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Questions?

Hilary ClarkePartner, McMillan LLPHilary.Clarke@mcmillan.ca

Rob BarrassAssociate, McMillan LLPRob.Barrass@mcmillan.ca

Brookfield Place, Suite 4400181 Bay StreetToronto, Ontario M5J 2T3