ethics and the allure of social media

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Transcript ethics and the allure of social media

NAHO 2013 Conference
St. Paul, Minnesota
 Many thanks to Eve Moran for drafting the four skits
used in this presentation, and for providing many of
the research materials for the ethics program being
presented today. Thanks also to Professor Ogden for
providing many of the research materials for today’s
program. Thanks also to Bonny Fetch, co presenter,
skit director, and facilitator. The ethics rules featured
here are from the Illinois Rules of Professional
Conduct. The skits and some of these materials were
previously presented at an National Association of
Regulatory Utility Commissioners conference in
November 2012 .
Course Description
 Twitter, Facebook, Blogs, LinkedIn, etc., are some of the new
tools in our online lives. On the positive side, social media offers
opportunities for networking, research, marketing, and
information exchange. On the negative side, it presents new
opportunities for the unwary to engage in professional
misconduct. Through a number of comedic skits we will explore
the ethical challenges (e.g., ex parte communications,
confidentiality, misrepresentation, appearances, and influences
on the decision-making authority) that present themselves in
the context of social media "friending" relationships. We will
also discuss whether existing ethics laws are clear enough to
address the blurring line between our personal lives and our
professional lives. Finally, we will consider what effect social
media is having on the core values of professionalism and what
forces cause good people to fall into unethical conduct
Social Media Sites 1
 Top 5 social media sites:
Source (October, 2012)
 1. Facebook [750,000,000 estimated unique monthly
 2. Twitter [250,000,000 estimated unique monthly
 3. Linkedin [110,000,000 estimated unique monthly
Social Media Sites 2
 4. MySpace [70,500,000 estimated unique monthly
 5. Google Plus+ [65,000,000 estimated unique
monthly visitors]
 Source:
(October, 2012)
Social Media Sites 3
 1. Facebook
• Launched in February 2004 for social networking.
• Founded by Mark Zukerberg and four other Harvard
college students.
• Started at the college level but expanded rapidly.
• Most widely used global social networking service.
• $ 104 billion market value at IPO at $ 38 dollars per
share but the value has since dropped to $ 50 billion.
• Source:
Social Media Sites 4
 2. Twitter
 Founded March 2006 and Launched in July 2006
 Social networking and “microblogging” service
 Text based messages of up to 140 characters allowed
known as “Tweets”.
 Tweets are publicly viewable to whomever elects to
“follow” the tweeter
 Widely popular with 500 million active users as of 2012
Social Media Sites 5
 3. Linkedin
 • Founded in December 2002.
 • Launched May 2003
 • Expanded to Europe in 2010
 • Profitable in 2011 and 2012.
 • 161 million subscribers
 • Heavily used for professional networking
Social Media Sites 6
 4. Myspace
 Founded in August 2003
 Rapid growth 2003 t0 2006.
 Bought by News Corp. in June 2005 for $ 580 million.
 Overtaken by Facebook in 2008.
 Significant influence in pop culture and music.
 Bought by Specific Media Corp, and Justin Timberlake
for $ 35 million in June 2011.
 Source:
Social Media sites 7
 5. Google Plus+
 • Launched in June 2011
 • Has 400 million registered users and 100 million
active users as of September 2012
 • Described as a social layer and also includes Google
 • High growth in US and European markets
 A fully filled-out Facebook profile contains over 40
pieces of recognizably personal information: name,
birthday, educational and employment history, online
and offline contact information, sex, sexual preference
and relationship status, political and religious views,
favorite movies, books and music, and of course,
pictures. Facebook is the largest photo-sharing
application on the web with more than 14 million
photos uploaded daily.
 Source:
 A type of website that is usually personally owned,
maintained and updated. Source: (1) Official definition: 1.“a Web site
containing the writer's or group of writers' own experiences, observations, opinions, etc., and often
having images and links to other Web sites.” 2. “to maintain or add new entries to a blog.”
 Most allow visitors to leave comments which can
evolve into group conversations that are recorded
similar to a deposition transcript. Source: Mutum, Dilip; Wang,
Qing (2010). "Consumer Generated Advertising in Blogs". In Neal M. Burns, Terry Daugherty,
Matthew S. Eastin. Handbook of Research on Digital Media and Advertising: User Generated
Content Consumption. 1. IGI Global. pp. 248–261.
 Blog Examples?
What is Social Media
 What is considered Social Media?
 The American Bar Association defines social media as “[a]ny tool or
service that uses the Internet to facilitate conversations.”
Differences from traditional media:
Each user can create his own content
Each user can instantaneously share the content he has created
The privacy of the content created by users depends to a large degree
on the user's choices; he may make his content available to anyone or to
a specific group of people.
Three predominant forms of social media: social networking sites
(SNS), blogs, and microblogs.
 Hope A. Comisky & William M. Taylor, Don't Be A Twit: Avoiding the Ethical Pitfalls Facing
Lawyers Utilizing Social Media in Three Important Arenas-Discovery, Communications with
Judges and Jurors, and Marketing (2011) 20 Temp. Pol. & Civ. Rts. L. Rev. 297, 298
Stored Communication Act
 Social media is protected under Federal law by 18
U.S.C. § 2701 et seq., the Stored Communications Act,
which prevents sites like Facebook or Myspace from
producing information in the absence of consent from
the account owner. The only way to obtain the
information is via authorization or via subpoena.
Citation: 18 U.S.C.A. § 2701 (West).
The Tweeting Juror
A $12.6 million verdict was appealed in Arkansas as
a result of a juror’s tweets, such as “Oh, and
nobody buy Stoam. It’s mad mojo and they’ll
probably cease to exist now that their wallet is $12
 Source: See Renee Loth, Mistrial by Google, Boston Globe, Nov. 6, 2009, at A15, available
The Facebooking Juror 1
In Wilgus v. Sirus 665 F. Supp. 2d. 23 (D., Maine, 2009), a juror
sent the plaintiff’s attorney an email after trial asking whether
he knew the plaintiff advocated binge drinking and using
mushrooms and marijuana, facts he learned from Facebook.
E-mail text: “[D]id you know your plaintiff[s] advocated the use
of mushrooms and weed smoking, and binge drinking all over
the internet? ... It['s] really sad what happened but with all the
work going into this don['t] you think you should have
address[ed] this issue and known such things so they could
clean up their acts before court? I'm just trying to help.[ ][I]f
you want more info and insight [I] will help you.”
 New trial based on juror misconduct denied because no
other juror received this information.
The Facebooking Juror 2
 In Maryland, the attorney for Mayor Shelia Dixon
sought a mistrial for the mayor’s conviction for
embezzlement. While the trial was ongoing, five of
the jurors became “Facebook friends” and chatted on
the social network site, despite the judge’s instructions
not to communicate outside of the jury room. The
argument was that the Facebook friends became a
“clique” that altered the jury dynamics. The defendant
subsequently entered into a plea agreement and
stepped down in January 2010.
 Source: Beth C. Boggs, Misty L. Edwards, Does What Happens on Facebook Stay on Facebook?
Discovery, Admissibility, Ethics, and Social Media Increasingly, Lawyers Are Mining Social
Networking Sites Like Facebook for Information About Litigants, Witnesses, Jurors (2010) 98
Ill. B.J. 366
The Internet Jurors
 In a Florida federal drug case, after eight weeks of
trial, a juror admitted to the judge he had been
doing research on the case on the internet. When
questioned, eight other jurors admitted the same
and a mistrial was declared.
 Source:
Facebook Service
In Australia, Facebook has been used for service of
process of court documents. In December 2008, after
several failed attempts at service, a lawyer won the
right to serve a default judgment by posting the terms
of the judgment on the defendant’s Facebook wall.
Source: See Bonnie Malkin, Australian Couple Served with Legal Documents via
Facebook, TELEGRAPH.CO.UK (Dec. 16, 2008),
 /newstopics/howaboutthat/3793491/Australian-couple-served-with-legal-documents-via
Facebook.html (last visited May 13, 2009).
Facebook and Case Outcomes 1
 In Romano v. Steelcase Inc., 907 N.Y.S.2d 650 (N.Y. Sup. Ct. 2010), the plaintiff
sought damages for her physical injury and claimed damages for the associated
emotional harm.
 However, her “public profile page on Facebook show[ed] her smiling happily in
a photograph outside the confines of her home despite her claim that she ha[d]
sustained permanent injuries and [was] largely confined to her house and bed.”
 The court granted defendant access to the private portions of plaintiff's
Facebook and MySpace pages because, in light of the public portions of her
sites, “there is a reasonable likelihood that the private portions of her sites may
contain further evidence such as information with regard to her activities and
enjoyment of life, all of which are material and relevant to defense of this
 Source(s):
 Hope A. Comisky & William M. Taylor, Don't Be A Twit: Avoiding the Ethical Pitfalls Facing
Lawyers Utilizing Social Media in Three Important Arenas-Discovery, Communications
with Judges and Jurors, and Marketing (2011) 20 Temp. Pol. & Civ. Rts. L. Rev. 297, 301
Facebook and Case Outcomes 2
 In McMillen v. Hummingbird Speedway, Inc., No. 113-2010 CD, 2010 Pa. Dist. &
Cnty. Dec. LEXIS 270 (C.P. Jefferson, 2010), the plaintiff alleged damages after
being injured in a stock car race based on, among other things, loss of vitality
and “inability to enjoy certain pleasures of life.”
 The public portion of McMillen's Facebook page, however, included
“comments about [plaintiff's] fishing trip and attendance at the Daytona 500
race in Florida[.]”
 The court was impressed that, “[a]ccessing only the public portion of his
Facebook page, . . . the defendants have discovered posts they contend show
that [plaintiff] has exaggerated his injuries.”
 Based on this foundation, the court ordered plaintiff to provide defendant with
his usernames and passwords for his Facebook and MySpace accounts.
 Source(s):
 Hope A. Comisky & William M. Taylor, Don't Be A Twit: Avoiding the Ethical Pitfalls Facing
Lawyers Utilizing Social Media in Three Important Arenas-Discovery, Communications
with Judges and Jurors, and Marketing (2011) 20 Temp. Pol. & Civ. Rts. L. Rev. 297, 301-02
Cloud Computing
 Cloud technology is essentially the storing of
information online through a network of pooled
storage generally run by third-parties. Where is the
data actually kept? Is that important? If stored
internationally, are foreign jurisdictional privacy laws
applicable? An extension of “electronically stored
information” as amended in the Federal Rules of Civil
 Source:; Source: Kelly Balfour Social Media and
Ethics CLE power point presentation (September 11, 2012, NAALJ conference, New
Orleans, Louisiana)
Document Retention
 All social media interaction must be preserved up to a
certain point. For emails the common standard is
“reasonableness and proportionality”. But a duty to
preserve evidence arises whenever there is knowledge
of a potential claim.
 Source: Rimkus Consult. Grp. v. Cammarata, 688 F.Supp.2d 598, 612 (S.D.Tex.2010)
(analyzing the duty to preserve by focusing on proportionality and reasonableness).
Skit Titles
 Yes, I will Friend You
 (Exploring ex parte contacts and other questions of
propriety when decision makers and lawyers use social
Check My Blog
(The intersection of personal and professional social media)
Who is Texting Now
(Lawyer’s supervision of non Lawyer staff)
Skit Number 1 Yes, I Will Friend You
Ethical issues in Skit 1
1. Commissioner bill sets up a Facebook page
2. Commissioner Bill Facebook friends Lawyer Stuart Little
3. Commissioner Bill uses Facebook page for improper ex parte
communications related to Little’s pending case before ALJ
4. Lawyer Stuart’s ex parte communications with Commissioner
Bill about case pending before ALJ Stanley
5. Lawyer Stuart Little sets up a Facebook page
6. Commissioner Bill’s improper ex parte communications with
ALJ Stanley.
7. ALJ Stanley ‘s blog posts about lawyer Stuart Little’s expert
Judges Ethics 1
 In New York, a judge was reprimanded in part because
he used his Facebook account to provide details of his
location and schedule, up-dated his status while on
the bench, posted a photograph of his crowded
courtroom to his account, and invited several lawyers
to be his friends on Facebook.
 Source: See Molly McDonough, Was Judge Transferred Because of His Facebook
Activity?, ABA Journal, Oct. 16,
Judges Ethics 2
A North Carolina judge was reprimanded for “friending”
a lawyer in a case pending before him, posting and
reading messages about the litigation on Facebook,
and accessing the website of an opposing party in a
child custody and support case. Can a Judge post
comments about the lawyers on Facebook regarding a
particular case and/or the parties, i.e. “that lawyer did
a lousy job trying their case”.?
Source: Debra Cassens Weiss, Judge Reprimanded for Friending Lawyer and Googling Litigant, ABA
Journal. com, June 1. 2009, available at www.abajournaLcom/newsljudge reprimanded for friending
lawyer and googling litigant;.
Judges Ethics 3 A
 In North Carolina, a judge received a public reprimand
for social networking misconduct.3 That case involved
child custody dispute. While the case was pending,
the judge and the father’s counsel became Facebook
“friends,” and thereafter exchanged relatively
innocuous ex parte statements. Further, the North
Carolina judge used an internet site to perform his
own investigation of the mother. See Public
Reprimand of Terry, North Carolina Judicial Standards
Commission, Inquiry No. 08-234, April 1, 2009.
Judges Ethics 3 B
 North Carolina Code of Judicial Conduct Canons ! 2A and
3A94) were violated. The conclusion from the reprimand
opinion stated as follows: “Judge Terry had ex parte
communications with counsel for a party in a matter being
tried before him. Judge Terry was also influenced by
information he independently gathered by viewing a
party’s web site while the party’s hearing was ongoing, even
though the contents of the web site were never offered as
nor entered into evidence during the hearing. Judge Terry’s
actions described above evidence a disregard of the
principles of conduct embodied in the North
Judges Ethics 3 C
 Carolina Code of Judicial Conduct, including failure to
personally observe appropriate standards of conduct to
ensure that the integrity and independence of the judiciary
shall be preserved (Canon 1), failure to respect and comply
with the law (Canon 2A), failure to act at all times in a
manner that promotes public confidence in the integrity
and impartiality of the judiciary (Canon 2A), engaging in
ex parte communication with counsel and conducting
independent ex parte online research about a party
presently before the Court (Canon 3A(4)). Judge Terry’s
actions constitute conduct prejudicial to the
administration of justice that brings the judicial office into
disrepute (N.C. Const. art IV, § 17 and N.C.G.S. § 7A-376(a)).”
Judges Ethics 4
 A Florida judge was disqualified in a criminal case
because the judge had become face book friends with
the prosecutor, and the defendant challenged the
judge’s ability to be fair and impartial.
 Domville v. State of Florida, No. 4D12-556,2012 WL
3826764 (Fla. Dist. Ct. App. September 5,
2012) 2012/09-0512/4D12-556.op.pdf
Ethics Issues with Judge Terry 1
 The Judicial Standards Commission - found Judge Terry to have had ex
parte communications with counsel appearing in a pending case before
him, and further found that he was influenced by independentlygathered information not in evidence.
 Found to have violated NC Code of Judicial Conduct:
 Canon 1 (requires appropriate standards of conduct of ensure integrity
and independence of judiciary);
 Canon 2A (respect & comply with the law; act in a manner promoting
public confidence in judiciary);
 Canon 3A(4) (engaging in ex parte communication with counsel,
conducting independent ex parte research about a party).
Ethics Issues with Judge Terry 2
 1. Illinois Rule of Professional Conduct: 3.5 (b) states
 A lawyer shall not:
 communicate ex parte with a judge. or other official
during the proceeding unless authorized to do so by
law or court order.
 2. Federal and State APA’s also prohibit ex parte
communications. See 5. U.S.C. Section 551(14),
557(d)(1); 1961 MSAPA Section 13; 1981 MSAPA Section
4-213; 2012 Revised MSAPA Section 408.
Ethics Issues with Judge Terry 3
 Just as well, the Nirvana Public Utility Commission, like every other state utility
commission, prohibits ex parte communications through its agency rules.
 Engaging in ex parte communications is misconduct - plain and simple
 In the skit, and in the Judge Terry case, there are two different types of ex-parte
 Case discussions between the decision-maker and one party to the dispute.
 Independent investigation by the decision- maker.
 Both types of ex-parte communications are equally egregious. Why?
 There is a serious unfairness if only one side has the decision-maker’s ear.
 There is a serious unfairness if the decision-maker is swayed by untested
 Indeed, it is fundamental that every decision or order be based on the record
and only the record.
Social media connections 1
 Judges and Lawyers
 Question Raised: Can a judge (or any decision-maker)
friend an attorney who might appear before him or
her, and vice versa?
 Several jurisdictions have issued opinions on this very
matter. Many more, however, have not. So, the
definitive answer depends on where you live. Some
jurisdictions have responded, but, in doing so, have
not necessarily framed the issue in the same way.
Social media connections 2
1. Can a judge be on facebook/social media sites?
All 7 opinions say YES - 1 is qualified)
Kentucky Opinion JE-119: Yes
Oklahoma Opinion 2011-3: Yes
California Opinion 66: Yes
Florida Opinion 2010-06: Yes
Ohio Opinion 2010-7: Yes
Massachusetts Opinion 2011-6: Yes, but may not identify
him or herself as a judge
 New York Opinion 2010-2: Yes
Social media connections 3
 2. Can a judge friend lawyers?
 Florida Opinion 2010-06: Yes - if atty does not appear or is
unlikely to appear
Kentucky Opinion JE-119: Yes (implied)
Oklahoma Opinion 2011-3: Yes, those lawyers who do not
regularly appear or are unlikely to appear in the Judge’s court.
California Opinion 66: Yes (implied)
New York - Yes
Mass- (open question)
Social media connections 4
3. Can a judge friend lawyers who “may appear” before him or her?
Florida Opinion 2009-20: No
Ohio Opinion 2010-7: Yes - but must be vigilant
Kentucky Opinion JE-119: Yes (qualified)
Oklahoma Opinion 2011-3: No
California Opinion 66: Yes (qualified)
Massachusetts Opinion 2011-6: No
New York - Yes
Can a judge friend a lawyer actually appearing on a case?
(based on earlier determinations, only 2 states even get to this question)
Ohio - Yes - but maintain vigilance.
California - No in pending case before the Judge: May NOT friend anew, must
“de-friend” if already friends, and must make this known,
Social media connections 5
 An attorney, a judge or a decision-maker is not relieved
of ethical responsibilities when engaging in social
 Be on guard when communications stray into pending
case matters. You do not want to engage in ex parte
 Attorneys and judges and state agency employees are
all well-advised to proceed with caution if they are
“friends” on social networking sites.
Skit Number 2 Check My blog
 Ethical issues in Skit 2
 1. Lawyer Betty’s blog posts identifying her client,
revealing confidential client information, and hurting
her client’s defense by disclosure of clients willingness
to take the rap for brother.
 2. Lawyer Betty’s blog posts disparaging the judge and
criticizing the judge’s ruling in two of her cases.
Rules in focus for Skit Number 2
 IRPC - 1.1 (Competence)
 IRPC - 1.6 (Client Confidentiality)
 IRPC - 3.5 (Impartiality and Decorum of the
 IRPC - 8.4 (Misconduct)
 (Rules provisions at the end of the slides)
Skit Number 2 sources 1
 The Kiristine Peshek Case
 Kristine Peshek was an assistant Public Defender in
Winnebago County, Illinois. She wrote and published an
internet blog tiled “The Bard Before the Bar - Adventures
in Life, Law and Indigent Defense.” One-third of the blog
was devoted to discussion of her defense work and her
clients. In the rest of her blog, Peshek wrote of her health
issues and bird-watching activities.
 The blog was open to the public and not password-
Skit Number 2 sources 2
 In her blog, Attorney Peshek set out confidential, and not
well-disguised information with respect to three of her
clients and their cases. She solicited commentary from her
readers. In her postings, she called a judge a “total ...hole”
and “Judge Clueless.” In one post, Peshek recounted how a
client revealed to her, after being sentenced, that she had
lied to the court about being sober. This was all serious
 By order of the IL Supreme Court attorney, attorney Peshek
was suspended from the practice of law for sixty (60) days.
 She also lost her job.
Skit Number 2 sources 3
Public Reprimand, Sean William Conway (Florida)
Florida attorney Sean Conway had a bad day. In the way a certain judge set cases for trial, it became
necessary for him to ask for a continuance. Doing so, however, lost his client the right to a speedy
trial. Apparently, only this one judge put defense counsel into this type of position.
Thus, Sean Conway posted to a website that the circuit court judge was an “EVIL, UNFAIR WITCH,”
“seemingly mentally ill,” “clearly unfit for her position and knows not what it means to be a neutral
arbiter,” and that “there’s nothing honorable about that malcontent.”
These statements were found to violate un-cited to Rules of Professional Conduct and code of ethics:
“statements impugning the integrity of a judge, when made with reckless disregard as to their truth or
falsity, erode public confidence in the judiciary without assisting to publicize problems that
legitimately deserve attention.”
Sean Conway received a Public Reprimand that is now part of his disciplinary record.
Notably, many other attorneys went to their respective blogs in defense of Conway and his exercise of
his 1st Amendment rights.
The Tweeting Research lawyer 1
 A research lawyer for a Kansas appeals court was fired on Monday after posting
critical tweets about the state's former anti-abortion attorney general during a
supreme court ethics hearing.
 The lawyer, Sarah Peterson Herr, posted tweets calling former Attorney
General Phill Kline a “naughty, naughty boy” and criticizing his facial
expression, the Associated Press, the Topeka CapitalJournal andWND report. “Why is Phil Klein [sic] smiling?” she wrote. “There
is nothing to smile about, douchebag.” AP reported on her firing in a later
 Herr predicted Kline would be disbarred for seven years as a result of charges
claiming he or his subordinates misled others during an investigation of
abortion providers. WND describes Herr’s tweets as “snarky" and “selfsatisfied.”
The Tweeting Research lawyer 2
 The comments have since been removed. Herr sent the AP a statement of
apology. “I didn't stop to think that in addition to communicating with a few of
my friends on Twitter I was also communicating with the public at large, which
was not appropriate for someone who works for the court system,” Herr said. “I
apologize that because the comments were made on Twitter—and thus
public—that they were perceived as a reflection on the Kansas courts.”
 Herr worked for Judge Christel Marquardt, who plans to retire in January.
 The Kansas Supreme Court heard the ethics case against Kline on Thursday
in a live broadcast of the proceedings. Five out of seven justices have recused
themselves because some of the allegations concerned Kline’s conduct before
the supreme court. Five lower court judges were tapped to help hear the case;
Marquardt was not among them.
Lawyers Ethics 1
 Recommendations or Endorsements on Social Networking Sites
Must Comply with Model Rules 7.1, 7.2, and 7.4
 “Lawyers are responsible for all communications they place or
disseminate, or ask to be placed or disseminated for them,
regarding their law practice, and all such communications are
governed by Rule 7.1 of the Rules of Professional Conduct.” In
addition, the South Carolina Committee found that “a lawyer who
adopts or endorses information on any similar website becomes
responsible for conforming all information in the lawyer's listing to
the Rules of Professional Conduct.”
 Source: Hope A. Comisky & William M. Taylor, Don't Be A Twit: Avoiding the Ethical
Pitfalls Facing Lawyers Utilizing Social Media in Three Important Arenas-Discovery,
Communications with Judges and Jurors, and Marketing (2011) 20 Temp. Pol. & Civ. Rts. L.
Rev. 297, 315.
Lawyer Ethics 2
 A veteran public defender of 19 years lost her job after blog
postings that contained thinly veiled information about her
clients and referred to a “Judge Clueless.” The Illinois State
Bar filed a complaint against her in 2009.
The Florida Supreme Court disciplined an attorney who
claimed his blogged rants against a judge he referred to as
an “evil, unfair witch” were protected free speech.
Source: (1)
Lawyer Ethics 3
 In 2006, a prosecutor in San Francisco was disqualified
for blogging about a pending case; his statements
ranged from calling his opposing counsel “chicken”
when she requested a continuance, alluding to her in
blog titles that contained obscenities, and mentioning
evidence that hadn't been ruled admissible at trial.
 Source: Judge Gena Slaughter & John G. Browning, Social Networking Dos and Don'ts
for Lawyers and Judges (2010) 73 Tex. B.J. 192
Lawyer Ethics 4
 An attorney lost her job because of her use of social
media. She was an assistant public defender in Illinois
who blogged about the cases she worked on. Because
she allegedly revealed confidential client information,
she was fired and then charged with violating legal
ethics rules.
 Source:
Lawyer Ethics 5
 Contact with a Witness: As a March 2009 Philadelphia
Bar Association ethics advisory opinion points out,
using deceptive means to “friend” a witness--such as
having a third party do it without disclosing an
affiliation with the lawyer--is unethical. Such tactics
violate the Rules of Professional Conduct prohibiting a
lawyer from engaging in behavior that involves
dishonesty, fraud, deceit, or misrepresentation.
 Source:
Helpful Guidelines 1
• If you maintain a website as an attorney, your website
should clearly explain where you are licensed and
where you maintain offices;
• Know who your advertising reaches, where your clients
are located, and where the effects of your services will
likely be felt;
• Avoid publishing information in an electronic forum
that would otherwise be unethical if it appeared in
other printed media;
 Source: Kelly Balfour Social Media and Ethics CLE power point presentation
(September 11, 2012, NAALJ conference, New Orleans, Louisiana)
Helpful Guidelines 2
 Avoid interactive communications and active pursuit of
potential clients in electronic media that more closely
resemble “live, in-person” communication;
 Refrain from providing legal advice in any electronic
medium unless you intend to create an attorney-client
relationship with the recipient of the advice; and,
 If you are maintaining a website, include express
disclaimers explaining that the information provided or
received by the recipient will not be treated as confidential.
 Source: Kelly Balfour Social Media and Ethics CLE power point presentation (September
11, 2012, NAALJ conference, New Orleans, Louisiana)
Helpful Guidelines 3
 Helpful Guidelines-Facebook, LinkedIn
 Maintain two different Facebook pages-one person and one
 Beware of giving unintended legal advice on LinkedIn“LinkedIn also has the feature of asking questions of those
within one’s network and responding with answers. This blurs
the difficult dividing line between professional development
and the provision of legal advice.”
 Source: Simon Chester and Daniel Del Gobbo, Social Media Networking For
lawyers: A Practical Guide to Facebook, LinkedIn, Twitter and Blogging,
y_february/social-media-networking-for-lawyers.html (last visited Oct. 12,
Tips for Attorneys 1
 Social media profiles might be subject to state bar advertising rules,
with significant ramifications.
 Many states have special requirements for lawyer advertising, such as:
 Filing with a reviewing authority prior to or shortly after public dissemination;
 Inclusion of mandatory information, such as the address of the principal office
of the law firm and the name of the person responsible for the content of the
 Labels such as “Attorney Advertising” or “Advertising Material” at the
beginning and end of the message;
 Inclusion of specified disclaimer language; and
 Retention of copies of each advertisement for a specified period of time.
 Source(s):
 Susan Liebel, 12 Social Media Ethics Issues for Lawyers (May 11, 2010),
Tips for Attorneys 2
 The “Recommendations” feature of LinkedIn.
 Some states prohibit the use of testimonials, or require certain
restrictions or the insertion of disclaimers, such as in Rule 7.1(d) and (f)
of the New York Rules of Professional Conduct.
 LinkedIn permits your connections to write testimonials about you in
the Recommendations section of your profile. You can prescreen
recommendations so make sure they comply with the disciplinary
 For example, in Texas, Rule 7.02(4) prohibits comparisons to other
lawyers’ services, unless substantiated by verifiable objective data.
Therefore, if your client enthusiastically reports that you are “the best
trial lawyer in town,” you will need to diplomatically ask for a revision
before publication.
 Source(s):
 Susan Liebel, 12 Social Media Ethics Issues for Lawyers (May 11, 2010),
Tips for Attorneys 3
 Designation as a specialist or expert on
 A LinkedIn profile has a field for “specialties.” Unless
you are certified as a specialist by a state bar accredited
authority in your jurisdiction, you should leave it blank.
ABA Model Rule 7.4(d) and most state rules prohibit a
statement that a lawyer is a specialist without the
particular sanctioned accreditation.
 Source(s):
Susan Liebel, 12 Social Media Ethics Issues for Lawyers (May 11, 2010),
Tips for Attorneys 4
 Solicitation by real-time electronic contact.
 Twitter has such open conversation and rapid interaction capability
that a lawyer must keep ABA Model Rule 7.3 (or the local
equivalent) in mind. The rule forbids using real-time electronic
contact to solicit business directly from a potential client.
 By way of illustration, when someone tweeted on Twitter that she
just got a DUI, a lawyer responded to her: “If you are looking for a
DUI lawyer, I can give you my Twitter big break on fees . . . email
me.” Unless the lawyer already had the requisite prior relationship
with the tweeter, that contact would violate ethical rules in a
number of states.
 Source(s):
 Susan Liebel, 12 Social Media Ethics Issues for Lawyers (May 11, 2010),
Tips for Attorneys 5
 Breaching client confidentiality.
 The casual nature of social media can lure attorneys to
unintentionally breach client confidentiality. In a tweet a
lawyer wrote, “Just talked to my client who totally lied to
me about all the facts.” Since the date and time of the
tweet gets posted, it has the potential of revealing
information to someone who might know that the client
was meeting with the lawyer that day.
 Source(s):
Susan Liebel, 12 Social Media Ethics Issues for Lawyers (May 11, 2010),
Tips for Attorneys 6
 Do not attack the integrity of a judge or any other
decision-maker on social media. The rules forbid it.
Besides, it is not pretty. No one gains a good reputation
from being a hot head. I am a great believer in the
concept of “Show - don’t tell.” It is proper to detail the
the complained-of conduct in an objective and coolheaded fashion. This will not only keep the lawyer free
of ethics violation - but also prove more persuasive to
the reader.
Skit Number 3 Texting
 Who is Texting Now
 (Lawyer’s supervision of non Lawyer staff)
 Ethical issues in Skit 3
 1. Non Lawyer staff compliance with Lawyer ethical
rules related to advertising and solicitation of clients
when designing law firm web page
 2. opposition research using subterfuges to friend a
witness for the opposing party in violation of lawyer
ethical rules.
Ethical Issues for Lawyers 1
 Theme of Skit:
 A lawyer’s affirmative duties to educate and supervise non-lawyer staff.
 Illinois Rules of Professional Conduct 5.1 (Responsibilities of Partners,
Managers & Supervisory Lawyers)
 Illinois Rules of Professional Conduct 5.2 (Responsibilities of a
Subordinate Lawyer
 Illinois Rules of Professional Conduct 5.3 (Responsibilities Regarding
Nonlawyer Assistants)
 Lawyers use social networks as part of due diligence and information
collection. Often these tasks as well as a firm’s website development are
assigned to support staff. It is important to keep in mind that the ethics
rules apply to non-attorneys under the supervision of attorneys.
Ethical Issues for Lawyers 2
Suzy and Sally’s plans for the firm are disastrous!
In terms of the website:
- risk of creating unintended attorney-client relationships.
risk of violating attorney advertising & solicitation rules
risk of unauthorized practice of law.
Let’s look at Suzy and Sally’s plan’s for “Friending” the witness. They want to get
information that is not available to the public.:
 We know that social networking sites can be valuable sources in gathering
evidence for litigation. And, we have all heard of law enforcement using such
undercover tactics. Even the news media tried this with the show.........To catch
a predator).
Ethical Issues for Lawyers 3
Can a lawyer or the lawyer’s agent send a “friend” request, under false pretenses, to obtain
information about an adverse party or witness from a social networking site?
Lets see what different jurisdictions considering the question have to say:
1. Phila. Bar Ass’n: Op. 2009-02 (March 2009).
It IS misconduct for third party to “friend” witness to get info for attorney.
2. New York Bar Association Committee on Professional Ethics, Opinion 2010-2 (Sept. 2010).
Lawyer may not attempt to gain access to a social networking website under false pretenses, either
directly or through an agent.
3. San Diego County Bar Legal Ethics Committee, Legal Ethics Opinion, 2011-2 (May 24, 2011).
Ethics rules bar an attorney from making an ex parte “friend” request of a represented party.
Ethical Issues for Lawyers 4
 Educate and supervise Staff as to ethics obligations in all aspects of the
firm’s or organization’s work.
 Establish a social media policy in line with the rules.
 Do not engage in Pretexting (using misleading tactics to gain
 All law firm attorneys and managers need to role model ethical
behavior. They teach by everything they say or don’t say and by every
action they take or don’t take. The question “How does it look to the
associates or staff” is just as important as “how does it look to the
public.” It goes directly to the ethical health of the organization.
Discovery and Social Media 1
 “A lawyer might try to obtain social media evidence
through the “normal” routes, like a subpoena or document
request to the account holder. But because online
communications are created in a continuous stream,
lawyers may fear that the requests may in and of
themselves affect what might be posted in the future.
Further, because online communications are so fleeting
and ephemeral, lawyers may have heightened fears of
spoliation of evidence -- i.e., that the witness will erase all
the comments from his MySpace page immediately upon
receiving the subpoena.”
 Source: Kelly Balfour Social Media and Ethics CLE power point presentation
(September 11, 2012, NAALJ conference, New Orleans, Louisiana)
Discovery and Social Media 2
 In 2010, an Indiana judge ordered two females who had
alleged to suffer from severe emotional distress as a result
of sexual harassment at their workplace, required the
females to disclose to the defense extensive information
from their MySpace and Facebook accounts, including all
profiles, status updates, wall posts, groups joined, causes
supported, photos, applications, and the like that “reveal,
refer, or relate to any emotion, feeling, or mental state, as
well as communications that reveal, refer or relate to events
that could reasonably be expected to produce a significant
emotion, feeling or mental state.”
 Source: EEOC v. Simply Storage Mgmt., LLC, No. 09-1223 (S.D. Ind. May 11, 2010)
Discovery and Social Media 3
 An Ontario judge ordered a plaintiff in a motor vehicle suit
to produce copies of her Facebook pages. The defendant
successfully argued that the pages were likely to contain
photographs relevant to the plaintiff’s damages claim, and
was buttressed by the fact that the plaintiff had served
photographs showing herself participating in various forms
of activities pre-activities. In this matter, the court
concluded: “Having considered these competing interests,
I have concluded that any invasion of privacy is minimal
and outweighed by the defendant’s need to have the
photographs in order to assess the case. The plaintiff could
not have a serious expectation of privacy given that 366
people have been granted access to the private site.”
 Source: Murphy v. Perger, [2007] O.J. No. 5511 (S.C.J.) (Ontario Superior Court
of Justice)
Discovery and Social Media 4
 In Beye v Horizon Blue Cross Blue Shield of New Jersey, the
plaintiff alleged that the defendant, an insurance company,
wrongfully refused to pay health benefits for children's eating
disorders. The insurance company contended the disorders of
the children were non-biologically based mental illnesses and
thus not covered under the insurance policy. The defendant
sought information on the children's MySpace or Facebook
pages. The court ordered the plaintiffs to turn over the children's
e-mails, diaries, and other writings that were “shared with other
people” about their eating disorders, including entries on
MySpace or Facebook, noting the lower expectation of privacy
where the person asserting the privacy right made the
information public in the first place.
 Source: Beye v Horizon Blue Cross Blue Shield of New Jersey, (D.N.J. 2008) 568 F.Supp.2d
Occupy Wall Street and Twitter
 New York City used the Twitter feeds of hundreds of
protesters in an attempt to quell the movement in
support of charges for disorderly conduct. In support
of the prosecutors’ request for subpoenas of the
Twitter feeds, the DA outlined if a defendant is
speaking publicly and leaving a record, the
government can access that information. Is this an
attack on free speech?
 Source: