legal ethics and social media

Ethics of Social Media

Michael Downey

Downey Law Group LLC

September 2016

4

LinkedIn Buzz

Ethics Issues

Advertising and Marketing

Discovery– Gaining access– Preventing access

7

8

Social Media Advertising

9

Bates v. State Bar of Arizona (1977)

• Constitutional protection for lawyer advertising as commercial speech– Right to promote services– Right of potential clients to learn of

legal rights and potential service providers

• Yet business development obviously pre-dated Bates– Lawyers avoid "sales"

10

Ethics Rules for Advertising andBusiness Development

Rule 4-7.1 (All Communications) – False and misleading communications – including private communications and advertising – about a lawyer or the lawyer's services are prohibited.

Rule 4-7.2 (Advertisements) – Establishes additional restrictions for lawyer print, radio, and television advertisements, and prohibits the payment of referral fees to non-lawyers for referring work to a lawyer (except in limited circumstances).

Rule 4-7.3 (Direct solicitations) – Prohibits in-person and real-time solicitation of clients except lawyers and persons with whom the lawyer had a family, professional, or close personal relationship. Also imposes additional restrictions on direct mail solicitations to prospective clients known to need a particular type of legal service.

Rule 4-7.4 (Specialties) – Restricts how and when a lawyer may claim to be an expert or specialist in a particular area of the law.

Advertising Regulations

Rule 4-7.1 – Any Communication

Rule 4-7.2 – Advertisements

Rule 4-7.3(a)

"solicit"real-time

Rule 4-7.3(b) & (c)

"solicit" in writing

11

What Heightens Scrutiny (Sample)

• Claims about skill • Claims of specialization• Discussing past results• Client (or other)

testimonials• Legal advice

• Client-related information• Lack of disclaimers

12

In re Dickey (SC 2012)

13

Missouri Rule 4-7.2(c)

A lawyer shall not give anything of value to a person for recommending the lawyer's services, except that:

(1) a lawyer may pay the reasonable cost of advertising or written communication permitted by this Rule 4-7.2;

(2) a lawyer may pay the reasonable cost of advertising, written communication, or other notification required in connection with the sale of a law practice as permitted by Rule 4-1.17; and

(3) a lawyer may pay the usual charges of a qualified lawyer referral service registered under Rule 4-9.1 or other not-for-profit legal services organization.

16

What Works

17

What Works (Corporate-Focused Firms)61% Visiting clients

9% Firm-sponsored seminars

12% Organizational Involvement

3% Speeches

0% By-lined Articles

2% Website

3% Newsletter

10% Other

18

2Many

500+

150+

19

Marketing Continuum (AT)

20

LinkedIn Buzz

SEO and SEM

• SEO – Search Engine Optimization• SEM – Search Engine Marketing

22

23

SEM

SEO

SEM

"Old" Results

(New Results)

24

25

Most Expensive Google Ad Word (>$700 per click in 2016)

“San Antonio Car Wreck Attorney”

26

How to Stay Ethical –12 Tips

1. Avoid "Real-Time" Solicitationof Strangers

27

Rule 4-7.3(a) – Real-Time Solicitations

In-person solicitation. A lawyer may not initiate the in-person, telephone, or real time electronic solicitation of legal business under any circumstance, other than with an existing or former client, lawyer, close friend, or relative.

28

Rule 4-7.3 – Scope

This Rule 4-7.3 applies to in-person and written solicitations by a lawyer with persons known to need legal services of the kind provided by the lawyer in a particular matter for the purpose of obtaining professional employment.

29

2. Beware "Targeted" (Non-Real-Time) Solicitations

30

Rule 4-7.3(b) – Shapero LettersWritten Solicitation. A lawyer may initiate written solicitations to an existing or former client, lawyer, friend, or relative without complying with the requirements of this Rule 4-7.3(b). Written solicitations to others are subject to the following requirements:

(1) any written solicitation by mail shall be plainly marked "ADVERTISEMENT" on the face of the envelope and [first page]. . .

(2) . . .

31

Rule 4-7.3 Requirements (Cont)Each written solicitation must include the following:

"Disregard this solicitation if you have already engaged a lawyer in connection with the legal matter referred to in this solicitation. You may wish to consult your lawyer or another lawyer instead of me (us). The exact nature of your legal situation will depend on many facts not known to me (us) at this time. You should understand that the advice and information in this solicitation is general and that your own situation may vary. This statement is required by rule of the Supreme Court of Missouri."

32

Rule 4-7.3 Requirements (Cont)f) any written solicitation prompted by a specific

occurrence involving or affecting the intended recipient of the solicitation or family member shall disclose how the lawyer obtained the information prompting the solicitation;

g) a written solicitation seeking employment by a specific prospective client in a specific matter shall not reveal on the envelope or on the outside of a self-mailing brochure or pamphlet the nature of the client's legal problem; . . . .

33

3. Ensure All Content is Candid

34

Rule 4-7.1

• A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services.

• A communication is false if it contains a material misrepresentation of fact or law.

35

Rule 4-7.1 Defines Misleading . . .A communication is misleading if it:

(a) omits a fact as a result of which the statement considered as a whole is materially misleading;

(b) is likely to create an unjustified expectation about results the lawyer can achieve;

(c) proclaims results obtained on behalf of clients, such as the amount of a damage award or the lawyer's record in obtaining favorable verdicts or settlements, without stating that past results afford no guarantee of future results and that every case is different and must be judged on its own merits;

(d) states or implies that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law;

(e) compares the quality of a lawyer's or a law firm's services with other lawyers' services, unless the comparison can be factually substantiated;

36

e) advertises for a specific type of case concerning which the lawyer has neither experience nor competence;

f) indicates an area of practice in which the lawyer routinely refers matters to other lawyers, without conspicuous identification of such fact;

g) contains any paid testimonial about or endorsement of the lawyer, without conspicuous identification of the fact that payment has been made for the testimonial or endorsement;

h) contains any simulated portrayal of a lawyer, client, victim, scene, or event without conspicuous identification of the fact that it is a simulation;

i) provides an office address for an office staffed only part-time or by appointment only, without conspicuous identification of such fact; or

j) states that legal services are available on a contingent or no-recovery-no-fee basis without stating conspicuously that the client may be responsible for costs or expenses, if that is the case.

37

4. Include Necessary Disclaimers

38

Rule 4-7.2(f) Disclaimer

39

Any advertisement or communication made pursuant to this Rule 4-7.2, other than written solicitations governed by the disclosure rules of Rule 4-7.3(b), shall contain the following conspicuous disclosure:

"The choice of a lawyer is an important decision and should not be based solely upon advertisements."

"Conspicuous" means that the required disclosure must be of such size, color, contrast, location, duration, cadence, or audibility that an ordinary person can readily notice, read, hear, or understand it.

Tombstone Exemption – Rule 4-7.2(g)

The disclosures required by Rule 4-7.2(e) and (f) need not be made if the information communicated is limited to the following:

(1) the name of the law firm and the names of lawyers in the firm; (2) one or more fields of law in which the lawyer or law firm practices; (3) the date and place of admission to the bar of state and federal

courts; and (4) the address, including e-mail and web site address, telephone

number, and office hours.

40

5. Pay Properly for Promotions

42

Paying for AdvertisingRule 4-5.4(a): "A lawyer or law firm shall not share legal fees with a nonlawyer, except . . . ."

Rule 4-7.2(c): "A lawyer shall not give anything of value to a person for recommending the lawyer's services, except that:

(1) a lawyer may pay the reasonable cost of advertising or written communication permitted by this Rule 4-7.2

(2) [sale of law practice]; and

(3) a lawyer may pay the usual charges of a qualified lawyer referral service registered under Rule 4-9.1 or other not-for-profit legal services organization."

43

Internet Advertising

Pay per month/yearPay per view/clickPay per leadPay per client

Percentage of fee earned is particular problem

44

6. Beware "Quid Pro Quo"

45

Quid pro Quo? Rule 4-7.2(c)

A lawyer shall not give anything of value to a person for recommending the lawyer's services except that a lawyer may

(1) pay the reasonable costs of advertisements or communications permitted by this Rule 4-7.2; . . .

46

"Client" Recommendations

47

7. Candor Includes Endorsements

48

Endorsements

49

8. Beware "Specialization" Claims

50

Specialist or Expert? Rule 4-7.4 A lawyer may communicate the fact that the lawyer does or does not practice

in particular fields of law. Any such communication shall conform to the requirements of Rule 4-7.1. Except as provided in Rule 4-7.4(a) and (b), a lawyer shall not state or imply that the lawyer is a specialist unless the communication contains a disclaimer that neither the Supreme Court of Missouri nor The Missouri Bar reviews or approves certifying organizations or specialist designations.

(a) A lawyer admitted to engage in patent practice before the United States Patent and Trademark Office may use the designation "patent attorney" or a substantially similar designation;

(b) A lawyer engaged in admiralty practice may use the designation "admiralty," "proctor in admiralty" or a substantially similar designation.

51

In re Dickey (SC 2012)

52

9. Protect Client Confidences

54

Internet vs. Privacy: "Helpful Venn diagram"

By David Hoffman, available at http://bit.ly/bqU5vU

The Internet

Privacy

55

The Myth of Privacy

"There can be no reasonable expectation of privacy in a tweet sent around the world."

People v. Harris (N.Y. Crim. Court 2012)

56

In re Peshek (IL ARDC)

58

10. Beware Discussing Judges and(Your) Pending Cases

60

Rule 4-3.6(a)• A lawyer who is participating or has participated in the

investigation or litigation of a matter shall not make 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.

61

Rule 4-3.6(c) – Right of Reply• "Notwithstanding Rule 4-3.6(a), a lawyer may make a

statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client. A statement made pursuant to this Rule 4-3.6(c) shall be limited to such information as is necessary to mitigate the recent adverse publicity."

62

Rule 4-8.2(a)

A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.

63

11. Beware Inadvertent Clients

64

Legal Advice?

65

Potential Unauthorized Practice

Rule 4-5.5: "(a) A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction or assist another in doing so."

66

12. Thicken Your Skin

67

Negative Review

Someone posts negative (and false) information about Law Firm on– Google Places– Avvo– Yelp

What can Law Firm do in response?

68

Streisand Effect

69

LA County Bar Association Opinion 525

Therefore, under these circumstances, Attorney may respond to Former Client's internet posting, so long as:1) Attorney's response does not disclose confidential

information2) Attorney does not respond in a manner that will

injure Former Client in a matter involving the former representation; and

3) Attorney's response is proportionate and restrained.

70

71

Discovery of Social Media

Accessing Social Media• May you view an adverse party’s (public) social media

posts?

• May you send a friend request to view an adverse party’s private social media posts?

• May you send a (less than revealing) friend request to view social media?

• (Of course) You cannot hack an adversary’s social media

72

Accessing Information – Rule 4-4.4

(a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person or use methods of obtaining evidence that violate the legal rights of such a person.

(b) A lawyer who receives a document relating to the representation of the lawyer's client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.

73

"Passive" Viewing of Social Media

Lawyers may access social media information available to general public

NYSBA Opinion 843 (2010)

SDCBA Ethics Op. 2011-2

74

"Friending" a Represented Party

May violate "Anti-Contact" Rule 4-4.2

Passive viewing of public pages vs. "friending" (NYSBA Opinion 843)

Lawyer can't "friend" high-ranking executives of represented corporation (SDCBA Ethics Op. 2011-2)

75

Candor Obligations – Rule 4-4.1

• In the course of representing a client a lawyer shall not knowingly:(a) make a false statement of material fact or law to a third

person; or(b) fail to disclose a material fact when disclosure is

necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 4-1.6.

76

No Deception – Rule 4-8.4It is professional misconduct for a lawyer to:

(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects;

(c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. . . .

(d) engage in conduct that is prejudicial to the administration of justice;

77

Removing (Dangerous) SocialMedia Posts

Client posts information on the Internet that may be harmful to client's litigation position– Images of client drinking when being prosecuted or sued for DWI-

related accident– Video of allegedly injured client engaging in strenuous athletic

activities May lawyer:

– Advise client not to post further harmful content– Advise client to take down harmful content– Advise client to hide harmful content behind privacy wall

78

“Hiding” Information

Rule 4-3.4: A lawyer shall not:(a) unlawfully obstruct another party's access to

evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act; . . . .

79

May Advise Against Further Posting

New York County Lawyers Association Ethics Opinion 745 ("NYCLA Opinion 745"), issued in July 2013, directs that lawyers may "advise clients as to . . . what they should/should not post on social media."

80

May Not Engage in Spoliation

Rule 4-3.4(a) prohibits a lawyer from "unlawfully obstruct[ing] another party's access to evidence" or "unlawfully alter[ing], destroy[ing], or conceal[ing]" material that has "potential evidentiary value"

Rule 4-3.4(a) prohibits a lawyer from advising another to engage in such behavior

81

Seeking Social Media

No “deception” in seeking social media

No communications with represented persons

82

Investigating Jurors

May a lawyer connect with a prospective juror to view the juror's social media page?May a lawyer research a prospective juror online?– What if the visit is reported back to the page

owner?

83

ABA Opinion 466 – Guidance • Managing expectations of lawyers and jurors. • Avoiding communicating with jurors. Next ABA

– Missouri Rule 4-3.5 generally prohibit a lawyer from seeking to improperly influence or communicate with jurors.

– ABA Opinion 466 makes clear the prohibition on improper communications and influence reaches to Internet communications, both by the lawyer and – through operation of ethics rules like Missouri Rule 4-8.4(a) – the lawyer's assistant or agent.

84

ABA Opinion 466 – Continued Passive review of public contents is ordinarily permitted

– "The mere act of observing that which is open to the public would not constitute a communicative act that violates Rule [4-]3.5(b)," ABA Opinion 466 explains.

o sending access requests. Requesting access likely violates Rule 4-3.5– "An access request is an active review of the juror's electronic social media by

the lawyer and is a communication to a juror asking the juror for information that the juror has not made public."

Passive notice of viewing doesn't necessarily prohibit visiting a juror's site. – Rule 4-3.5 is not violated by a lawyer's visit to a site where the site notifies the

juror of the visit.

85

Caution Visiting Sites (ABA Opinion 466)

Lawyers are advised to consider their obligation under Model (but not Missouri) Rule 1.1 to be competent if using such technology to investigate jurors

Lawyers should take care not to embarrass or otherwise harm a juror, because such conduct might violate Model Rule 4.4 (Missouri Rule 4-4.4)

If the lawyer's investigation uncovers evidence of juror misconduct, the lawyer may have an obligation to notify the applicable court including under Missouri Rule 4-3.3

86

Dangers on Handling Social Media Posts

If a case is pending such that content has probably evidentiary value, proceed with risk

– Philadelphia Bar Opinion 2014-5– North Carolina 2014 Formal Ethics Opinion 5 (2014)

87

NC Opinion 2014-5• May the lawyer instruct the client to remove existing postings on social

media? After a law suit is filed, may the lawyer give the client such advice?• No, in general, relevant social media postings must be preserved. . . . • If removing postings does not constitute spoliation and is not otherwise

illegal or a violation of a court order, the lawyer may instruct the client to remove existing postings on social media. If the lawyer advises the client to take down postings on social media, where there is a potential that destruction of the postings would constitute spoliation, the lawyer must also advise the client to preserve the postings by printing the material, or saving the material . . . .

88

NC Opinion 2014-5 May the lawyer instruct the client to change the security and

privacy settings on social media pages to the highest level of restricted access? May the lawyer give the same advice after a law suit is filed?

Yes, if such advice is not a violation of law or a court order. Advice should be given before and after the law suit is filed.

89

Michael DowneyDowney Law Group LLC

(314) 961-6644(844) 961-6644 toll free

[email protected]

Thank You