social media: ethics & records considerations€¦ · eharmony, ashley madison, etc. many more...

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Social Media: Ethics & Records ConsiderationsPresented by: Moderator, John Isaza, Rimon PC

Panelist, Kevin Fumai, Oracle

Panelist, Jerry Cohen, Burns & Levinson

Jeff Katz, Patterson Law Firm

http://www.legalweekshow.com/

http://www.legaltechshow.com/


1. Social Media Defined

2. Social Media Considerations for Lawyers

3. Applicable Ethics Provisions

4. Records Retention & Disposition Considerations

Agenda




PART I

Social Media Defined




Social Media DefinedOxford Dictionary: “websites and applications that enable

users to create and share content or to participate in social

networking”




Social Media Dissectedslide courtesy of Kevin Fumai, Counsel, Oracle

Use by Companies Use by Lawyers

•Marketing •Career development

•Advertising •Networking

•Business development •Client development

•Reputation management •Education/awareness

•Recruitment •Case investigation/discovery

•Employee engagement •Deal diligence




• 7.3B people worldwide

• 2.3B social media users worldwide (31%)

• 78% of US population uses social media

• 500K Facebook users added per day (6 per second)

• 81K fake Facebook users

• $8.3B in social media advertising revenue

Source: Brandwatch

Social Media Dissectedslide courtesy of Kevin Fumai, Counsel, Oracle




PART II

Social Media

Considerations for

Lawyers




Technology Awareness

Technology awareness, includes such issues as encryption or not, plus other safeguards of various Internet services such as:

● Facebook, Linked-In, Twitter, Instagram, SnapChat, YouTube (Google), Flickr, Yelp, eHarmony, Ashley Madison, etc.

● Many more within universities, societies and other affinity groups

● Blogs/list news

● ISP services such as Dropbox, Box, Microsoft Azure, Openstack, Amazon AWS, IBM Smart Cloud/Smaller Planet, Oracle Cloud

● Adjunct applications, e.g. SaaS, PaaS, IaaS for software, platform and infrastructure services, accessed via social media or independently




Salient Questions to Consider

What does the provider do by way of capturing and using metadata and content it acquires through the service?

● Sell it to others?

● Filter privacy information?

● Mine it to create more profits?

● What are its duties under its Terms of Service and governing law to notify subscribers of data usage, breach, loss of stored data, to accept new instructions to delete or correct fact data relating to the subscriber?

● How and when does it give access to federal and state government?




Inadvertent (or not) Communications

● Jury tampering

New York City Bar “Ethics Opinion Warns Lawyers About Perils of UnintentionalJuror Contact During Online Research”vs.Johnson v. McCullough, 306 S.W. 3d 551, 558-559 (Mo. 2010) (where trial courtchided the attorney for failing to perform internet research on the juror, andgranted a new trial, observing that a party should use reasonable efforts toexamine the litigation history of potential jurors).

● Ex Parte communications with court

California, Florida, and Maryland - a judge may not add lawyers who may appearbefore the judge as friends on a social networking site.

Massachusetts, New York, Ohio, Kentucky, New York, S. Carolina, & Washington– allow friending so long as there are no ex parte communications or otherviolations of canons of judicial conduct.




PART III

Applicable Ethics Provisions




OverviewABA Model Rules of Professional Conduct including eight major sections:

1. Competence

2. Advisory Role

3. Advocate Role

4. Transactions with non-clients

5. Law Firms

6. Public service

7. Marketing

8. Integrity-of-the-Profession




Competence● Rules 1.1 and 1.3 re duty of competence, diligence including a newly articulated

need for lawyers to be adept at technology directly or via access to assistance.

● Rules 1.2 and 1.4 require clarity of scope of representation and allocation of authority between client and lawyer and regular communication.

● Rule 1.5 governs fairness of fees.

● Rule 1.6, as to confidentiality also invokes a new need of technology competence.

● Rules 1.7-1.14 cover conflicts.

● Rule 1.15 safekeeping property including intangible property such as trade secrets as well as client retainers, cash deposits, securities, private instruments and the like.

● Rule 1.16 on declining or terminating representation will involve social media. ● Rule 1.18 states confidentiality duties to a prospective clients and requires special

attention in relation to social media.




Advisory Role

• Rule 2.1 covers advisory role of a lawyer including good judgment and allowable reference not only to law but to moral, economic, social, political factors and the like relevant to a client’s protection.

• Rule 2.3 covers information conveyed to third parties and Rule 2.4 covers lawyer acting as third party neutrals.




Advocate Role

• Rules 3.1-3.9 govern a lawyer’s advocacy role and includeduty of advancing meritorious claims, efficiency, candor,fairness, tribunal respect, trial publicity, moderation andspecial advocacy situations.

• Social media participation should not create the fact orappearance of violating these obligations.




Transactions with Non-Clients• Rules 4.1-4.4 concern truthfulness, not communicating

with a person represented by other counsel without thatother counsel’s consent (4.2)

• Rule 4.3 concerning contact with an unrepresented personto seek counsel and generally respect for third parties.

• Rule 4.2 can be violated by deliberate or inadvertentcontacts through social media.




Law Firms

• Rules 5.1-5.7 govern law firms.

• Utilization of social media can create an environment ofconfusion as to affiliations of lawyers, multi-jurisdictionalpractice and unauthorized practice issues.




Public Service

Rules 6.1-6.5 present obligations for public service that can be well served or poorly served through social media use.




Marketing

• Rules 7.1-7.6, in a section styled “communications” focus on marketing and solicitation.

• One-to- many Internet contacts are publishing/marketing activities with a tolerance induced by antitrust laws and one-to-one contacts are solicitation, still tightly regulated.




Integrity

• Rules 8.1-8.5 pertain to integrity of the profession includingthe so-called “snitch” rule 8.3 on reporting professionalmisconduct.

• Social media put a lawyer on a public stage and vulnerableto critiques that may reach professional regulatoryauthorities.




Communications Policies

Policies should be in place regarding:

• Who is allowed to communicate with clients and 3rd parties onsocial media?

• What platforms they are allowed to use?• When they are allowed to use them?• What information they are allowed to share to help protect

client confidentiality?




Policy ConsiderationsJust as with a website that allows for responses and public replies, indrafting such a policy firms should consider questions such as:

• Through what sites are employees allowed to communicate with clients?• What kind of information are they allowed to share?• Can they give legal advice?• Can they give out appointment dates and times? Court dates and times?• If the network posting settings are put to private, can it be shared with a

small group, or must any communication by social networks be done throughprivate messaging?

• Is any of that information sensitive enough that a potential leak of thatinformation will be adverse to interests of the client?




Social Engineering

• Social engineering, as used in an information technology(IT) context, refers to hackers using human interaction togain access to confidential information.

• Employees should be trained to not give out personalinformation without first being sure of who they are givingthe information too.




Sources of Information

Sources of information as to ethical standards generally and as to social media include:

• The ABA ethics hotline• State bar counsel hotlines and directives as to this• State bar ethics committee opinions• General procedural and • Local evidence rules and local rules of courts and administrative tribunals

state CLE programs on ethics (often mandatory) court rulings on disqualification

• Sanction motions • Public records of bar discipline proceedings.




PART IV

Records Retention &

Disposition

Considerations




ILG is a set of policies that defines how an organization manages itsinformation throughout the data lifecycle in order to reduce operational andsystemic risk—without adversely impacting the value of the information.

What is Information Lifecycle Governance




Records in Social Media

• Some social media content could rise to the level of a record.

• Organizations must consider whether and how much social media content must be preserved as a record

• If so, for how long?




Marketing Materials in Social Media

• The Securities and Exchange Commission imposesretention requirements for marketing material. 17C.F.R. 270.31a-2(a)(3) (imposing on RegisteredInvestment Companies a retention of 6 years from lastused for “advertisement, pamphlet, circular, formletter or other sales literature.”)

• If a company operates in California, the retentionperiod for marketing materials could be eight years.18 CCR 19141.6 (covering advertisements, brochuresand product catalogues).




Customer Complaints in Social Media

• Depending on whether the social media site is external or internal, social media could be used as a platform to capture complaint records.

• Retention period would be Final Resolution + X years (depending on statute of limitations for breach of contract or possibly local bar rules on client records retention).




Disposition ConsiderationsSpain/EU “right to be forgotten”

UK’s Data Protection Act 1998 – “Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes.”

EU’s GDPR– Severe sanctions for mismanagement of private data - up to 4% of global gross revenue.

US’s Healthcare Insurance Portability and Accountability Act of 1996 (HIPAA) - Imposes strict data disposal requirements, including overwriting or physically destroying all magnetic media that is no longer in use or that is given away or sold.




Disposition Requirements

• External Social Media - Providers themselves are in the hook for disposition, or at least removal, of content under the EU’s “right to be forgotten.”

• Internal social media - Platforms are within the custody and control of the organization, so disposal and removal responsibilities are indeed left to the organization.




High Level Considerations

Governance Framework

Technology & Infrastructure

Risk Management &

Behavioral Norms

Recordkeeping Controls

Change Management

Training Auditing




Conclusion / Questions

Kevin Fumai,

Managing Counsel, Oracle

America

[email protected]

Jerry Cohen

Partner, Burns

Levinson

[email protected]

John Isaza,

Records & Info Gov Partner,

Rimon

[email protected]

Jeff Katz

Partner, Patterson Law Firm

[email protected]



social media: ethics & records considerations€¦ · eharmony, ashley madison, etc. many more...

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