Transcript Web 2.0 and Legal Ethics: LinkedIn, Facebook, Blogs

Ethical Considerations When
Using Social Media
Kimberly C. Metzger
Ice Miller LLP
James Dimos
Frost Brown Todd LLC
“The future is already here;
it’s just not evenly distributed.”
William Gibson
What We’ll Cover
 Web 2.0 and Social Media – A Basic Taxonomy
 What is Your “Internet Presence”?
 Why Lawyers Are Using Social Media and Web 2.0
 Legal Issues and Ethics for Web 2.0 – Basic Rules
 Ethical Concerns for Common Scenarios
 Conclusions and Suggesting a Few Action Steps
Key Web 2.0 Concepts
•User-generated Content
•Internet as application platform
•Multiple channels
•Global
•Third-party Hosting / Loss of Control
•Social / Community
What is my current online
presence?
Do I want an online presence?
WHY HAVE A WEB PRESENCE?
Why Have A Web Presence
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1 – To learn
2 – To network
3 – To be a better communicator
4 – For the profession
5 – Fun
The goals of business
development efforts
• Increased visibility
• Developing a good
reputation
• Becoming trusted
• Getting clients
Traditional ways to develop business
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Bar associations
Trade groups
Clubs
Alumni groups
Cocktail parties
Traditional ways are limited by time
and space
Social media is less limited
by time and space
Objectives of social media
• Connection
• Conversation
• Credential
building
What Are My Choices?
LinkedIn
Facebook
Twitter
Blogs
Some More Web 2.0
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MySpace
Martindale
Slideshare
Legal Onramp
Legal Zoom
Bid
What can I do when I don’t like what is
being said about me online?
Communications Decency Act
• Section 230 of the Communications Decency Act, passed in
1996, is perhaps the most relevant to online defamation. It
provides: "No provider or user of an interactive computer
service shall be treated as the publisher or speaker of any
information provided by another information content
provider".
• Effectively, this section immunizes both ISPs and Internet
users from liability for torts committed by others using their
website or online forum, even if the provider fails to take
action after receiving actual notice of the harmful or offensive
content.
Communications Decency Act
• There are court cases and other actions have led to
ISPs being forced to remove content from their
servers and even provide personal details including
the IP address of known offenders.
• Also some ISPs will act quickly to remove defamatory
content from their servers out of fairness or liability
concerns.
What Do The Rules Say?
REGULATING SOCIAL AND
PROFESSIONAL NETWORKING SITES
• As with other aspects of the law, technology may
outpace the drafters of laws and rules.
• Indiana has provided general guidance in the “7series” of the Indiana Rules of Professional
Conduct.
• The Court amended these rules on October 14,
2010, effective January 1, 2011.
A GENERAL OBSERVATION
REGARDING THE NEW RULES
• The amendments appear to reflect a change in rule
writing philosophy.
• Instead of detailed prohibitions, the Court has
made more generalized statements of what is
permitted or prohibited.
• Should provide more flexibility and guidance in
keeping up with technology.
RULE 7.1 COMMUNICATIONS
CONCERNING A LAWYER’S SERVICES
• This is a new rule as 7.1 was previously
reserved.
• “A lawyer shall not make a false or
misleading communication about the lawyer
or the lawyer’s services. A communication is
false or misleading if it contains a material
misrepresentation of fact or law, or omits a
fact necessary to make the statement
considered as a whole not materially
misleading.”
RULE 7.1 COMMUNICATIONS
CONCERNING A LAWYER’S SERVICES
• As with other amendments, the details are
located in the comments.
• Cmte 1—”governs all communications about
a lawyer’s services, including advertising
permitted by Rule 7.2. Whatever means are
used to make known a lawyer’s services,
statements about them must be truthful.”
(emphasis added)
RULE 7.1 COMMUNICATIONS
CONCERNING A LAWYER’S SERVICES
• Cmt 2—Notes that truthful statements that
are misleading are also prohibited.
• Sets forth a long list of the types of
statements that may be ”truthful” but still
misleading.
• Similar to the list set forth in the old Rule 7.2
(c ) though more extensive.
RULE 7.1 COMMUNICATIONS
CONCERNING A LAWYER’S SERVICES
• Worth noting
– “Contains a claim about a lawyer, made by a
third party, that the lawyer could not personally
make consistent with the requirements of this
rule”
– Contains a representation, testimonial, or
endorsement of a lawyer or other statement
that, in light of all the circumstances, is intended
or is likely to create an unjustified expectation
about the lawyer, or law firm or a person’s legal
rights.
RULE 7.2 ADVERTISING
• Rule 7.2(a)--“Subject to the requirements of
this rule, a lawyers and law firms may
advertise their professional services and law
related services. The term ‘advertise’…refers
to any manner of public communication
partly or entirely intended or expected to
promote the purchase or use of the
professional services of a lawyer, law firm, or
any employee of either involving the practice
of law or law-related services.”
RULE 7.2 ADVERTISING
• Rule 7.2(b)—A lawyer shall not give anything
of value to a person for recommending or
advertising the lawyer’s services except:
– The reasonable costs of the communications
– The usual charges of a legal services or lawyer
referral program
– Non-exclusive cross-referral agreement with other
lawyers or non-lawyers, if disclosed to client
– Purchase of a law practice
RULE 7.2 ADVERTISING
• Rule 7.2(c)—Any communication subject to
the rules must include the name and office
address of at least one lawyer or law firm
responsible for its content and a copy must
be maintained for six years after its
dissemination.
RULE 7.2 ADVERTISING
• Once again, the comments provide more detail as
to permissible subjects of advertising.
• Comment 2 reflects the list previously contained in
Rule 7.2(b)
• Comment 4 expressly states that while lawyers
cannot pay others for channeling professional work,
a lawyer can pay for such things directory listings,
advertisements, domain-name registrations,
sponsorship fees, etc. Lawyers can also compensate
employees, agents and vendors for marketing and
client-development services.
RULE 7.3 DIRECT CONTACT WITH
PROSPECTIVE CLIENTS
• A lawyer (including the lawyer’s employee or agent)
shall not by in-person, live telephone or real-time
electronic contact solicit professional employment
from a prospective client when a significant motive
for a lawyer’s doing so is the lawyer’s pecuniary
gain unless the person contacted:
– Is a lawyer
– Has a family, close personal or prior professional
relationship with the lawyer.
RULE 7.3 DIRECT CONTACT WITH
PROSPECTIVE CLIENTS
• A lawyer shall not solicit professional employment from a
prospective client by in-person or by written, recorded,
audio, video, or electronic communication, including the
Internet if:
– The prospective client has made known to the lawyer a desire not to be
solicited
– The solicitation involves coercion, duress or harassment
– The solicitation concerns within 30 days of a personal injury, wrongful death
or accident or disaster
– The solicitation involves a specific matter and the lawyer knows or has
reason to know that the person is represented by counsel
– The lawyer knows or should know that the mental state of the person
solicited makes it unlikely that the person would use reasonable judgment in
hiring a lawyer.
RULE 7.3 DIRECT CONTACT WITH
PROSPECTIVE CLIENTS
• Every written, recorded, or electronic
communication from a lawyer soliciting
professional employment…shall:
– Include the words “Advertising Material” at the beginning
of any written communication and at the beginning and
end of a recorded one;
– A copy must be filed with the Indiana Supreme Court at
or prior to its dissemination
– A filing fee of $50 must accompany the filing
– Retain a list of the names and addresses, including email
addresses of all persons solicited.
RULE 7.3 DIRECT CONTACT WITH
PROSPECTIVE CLIENTS
• A lawyer cannot accept referrals from a lawyer
referral service unless:
– A lawyer referral service operated by an ABA accredited law school
– Operated or sponsored on a not-for-profit basis by a bona fide nonprofit community organization
– Operated or sponsored on a not-for-profit basis by a governmental
agency
– Operated, sponsored or approved by a bona fide bar association
whose lawyer referral service has been sanctioned by the
Disciplinary Commission
– Operated by a court
– Military legal assistance offices
– A non-profit that provides lawyer referral services to its members
RULE 7.4 COMMUNICATION OF FIELDS
OF PRACTICE AND SPECIALIZATION
• May communicate that you practice or do not
practice in a particular field of law
• Cannot claim a specialty unless obtained a
certification as a specialist as provided for under
Admission and Discipline Rule 30 and the certifying
organization is identified in the communication
• A lawyer who is admitted before the USPTO may
use the designation “Patent Attorney” and a lawyer
engaged in Admiralty may use the designation
“Admiralty” or “Proctor in Admiralty.”
What Are Issues Specific to Web
2.0?
FACEBOOK
• Lawyers must conduct themselves as they would in any
other setting.
• Philadelphia Bar Association—A lawyer having his assistant
“friend” a hostile witness through Facebook in order to
conduct witness research without revealing purpose of the
request is prohibited.
• Bar Association of the City of New York—A lawyer may not
attempt to gain access to a social networking website under
false pretenses, either directly or through an agent.
• Texas—Lawyer complaints about judges that are posted on
Facebook may be improper.
LinkedIn
• Be cautious regarding specialties.
• Recommendation feature may violate rules
concerning testimonials or endorsement of a
lawyer and regarding statements or opinions
regarding the quality of the legal services.
• Information sharing may constitute giving
legal advice.
TWITTER
• Like Facebook, you need to be sensitive to revealing
confidential information.
• Must be cautious about providing legal advice,
establishing an attorney-client relationship, or
soliciting legal work.
• Solicitation via real-time electronic contact.
BLOGS AND MESSAGE BOARDS
• Blogs may be considered legal advertising
under the RPC.
• As with Twitter, you need to be sensitive
about what is posted.
– Consider disabling the comment feature so that a
dialogue is not established.
• Consider including a disclaimer.
How Do I Begin?
A Few Things To Consider
 Why you are doing it
 Creating sharp lines between mediums
 Maintaining your presence
 Ethical Fundamentals
 Privacy Concerns
 Disclaimers
Privacy
Disclaimers
American Bar Association
• Formal Opinion 10-457 on Lawyer Websites
• “Warnings or cautionary statements on a lawyer’s website
can be designed to and may effectively limit, condition or
disclaim a lawyer’s obligation to a website reader.”
– Such limitations must be reasonably understandable,
properly placed and not misleading.
– Must provide a clear warning in a conspicuous place, in a
readable format understandable by a reasonable person.
– The limitation can be undercut if the lawyer acts or
communicates contrary to the disclaimer.
Ethical Considerations When
Using Social Media
Kimberly C. Metzger
Ice Miller LLP
James Dimos
Frost Brown Todd LLC