do’s and don’ts of social media in law firms 1.0 hour mo mcle ethics credit
TRANSCRIPT
Do’s and Don’ts of Social Media in Law Firms
1.0 hour MO MCLE Ethics Credit
The Risks of Social Media/Networking
From a Law Firm Perspective
What is Social Media/Networking
• Communicating with others over the Internet for social or professional purposes,
• Social Networks Facebook Linked InYouTubeMySpaceTwitter
• Listserves• Blogs
• Law firms’ official online presence – websites and legal directories
• Law firm’s unofficial online presence – lawyers and staff creating social networking profiles and web pages/blogs that reference their affiliation with the Law firm and/or mention Law firm activities.
Statistics
• Social Networking accounts for over 25% of all United States activity on the Internet.
• There are 43 Missouri Bar Committees, each with a subscription listserve for its members.
• ABA’s 2010 Legal Technology Survey found that 56% of attorneys in private practice have a presence on social networking sites. In 2009 it was 43% and in 2008 it was 15%.
Ethical and Liability Risks Confidentiality Unintended Atty-Client Relationship Conflicts of Interests Ex Parte Contact Ethical Breaches in Advertising Ethical Misconduct
Attorney-Client Relationship
• Unintended A/C Relationship Sites, such as LinkedIn, allow users to post and answer questions.
Lawyers who answer questions may be characterized as providing legal advice, thus, establishing an inadvertent A/C relationship.
Providing general legal advice can lead to the Unauthorized Practice of Law.
Giving advice without knowing the parties involved can cause serious Conflicts of Interest.
• ABA Formal Opinion 10-457 No bright line rule b/t legal advice and legal information. Atty who
poses and answers hypothetical questions will not generally be characterized as providing legal advice.
Confidentiality Issues
• Rule 1.6 generally prohibits a lawyer from revealing “information relating to the representation of a client.” All information whether disclosed to the public or not Includes client Identity
• Atty updates FB status that he is drafting a MTD on particular grounds – This could reveal confidential information.
• 2010 Illinois Assistant PD gets 60-day suspension for posting information on her blog about her cases load. Referred to her clients by either their first names only, derivative of
the name, or jail ID number Disclosed only “public” information
• Seeking advice on listserves - Oregon Bar - Inquiries that are couched as hypotheticals general do
not violate Rule 1.6, but atty must get client consent before posting facts allowing someone to determine client’s identity.
Conflicts of Interest
• Participant’s identities are not always known or can be purposefully concealed Rule 1.7 Current Clients
Giving advice to a party that is adverse to a current firm client Issue conflict = taking a position on a legal issue contrary to a
current firm client Rule 1.18 Prospective Clients
Confidential info conflict = may require firm to withdraw from current client if info is material to that client’s matter and must be kept confidential as to the prospective client
Advertising and Solicitation
“Getting your name out there” is often a primary goal of social networking. MO. Rule 7.2 - Defines Attorney Advertising
lists telephone directory, legal directory, newspaper, periodical, outdoor advertising, radio, tv, direct mail. Silent on internet sites.
•Texas Bar - Disseminating videos on video-sharing websites•Connecticut Bar - LinkedIn and other “personal pages” describing law practice•ABA Formal Opinion (10-457) – if online activity promotes a law practice it is advertising.
• Content of Advertising must conform to detailed requirements of Rule 7
Not false, misleading or unfair Doesn’t create unjustified expectations Doesn’t imply atty is a specialist or expert
LinkedIn asks for “Specialties”; Violative if not including limiting language of Rule 7.4.
That neither the Supreme Court of Missouri nor The Missouri Bar reviews or approves certifying organizations or specialist designations
Conspicuous discloser Rule 7.2(f)
“The choice of a lawyer is an important decision and should not be based solely upon advertisements.”
Misconduct• Formal or informal discovery of the social network profiles and
postings of opponents, witnesses, and even potential jurors is becoming commonplace in modern litigation.
• Accessing social networking sites to gain intelligence on opponents or third ptys may violate Rule 8.4(c) engaging in conduct involving dishonesty, fraud, deceit or misrep.
• Philadelphia Bar – lawyer hires investigator to “friend” a witness without revealing investigator’s affiliation with the law firm.
• New York Bar – attys may view social networking page of opposing ptys or witnesses that are public and accessible without a “friend” request.
• Florida – atty posted that a judge was “methodically depriving criminal defendants of their right to a speedy trial” and stated the judge was “evil, unfair witch”.
Rcvd public reprimand and $1,250 fine for violating: Rule 4-8.2(a)
making false or reckless statements regarding the qualifications or integrity of a judge
Rule 4-8.4(d) engaging in professional conduct that is prejudicial to the
administration of justice
Professional Liability Concerns• Creating an inadvertant atty-client relationship and conflicts.• Overindulging in social networking may compromise a
lawyer’s work and lead to mistakes.• Consulted lawyer can be sued for legal malpractice if advice is
incorrect.• “Puffing” can hold lawyers to higher standards in legal
malpractice cases.• Inappropriate posts can also lead to exposure for defamation,
libel or other torts. Missouri (Eastern District) affirmed a jury’s decision that a man pay
$150k after posting negative business reviews on-line of his former business partner.
Employment Liability
• Regulating social networking usage of employees -• Partners and associates “friend” their subordinates -
Can lead to a duty to investigate or take disciplinary action
• Employers view potential employees profiles - Can discover something about one’s protected class which can be
imputed to the firm
• Employer agreed to revise its social networking policy after firing an employee who posted negative comments about his supervisor on FB. NLR Board claimed the remarks were protected by the NLR Act.
Loss Prevention SuggestionsSocial Networking Policy:•Never disclose confidential info.•Be careful using hypotheticals without a client’s approval.•Familiarize attorneys with the advertising rules of their states.•Avoid claims of specialization or expertise. •Avoid providing legal advice; If consulted atty should follow firm’s intake policies, including running conflicts.•Be careful in using “competitive intelligence”; never pretext to obtain information.
Clayton High School Principal•Never communicate with someone represented by counsel.
Judge Kerr
• Discuss real life situations she may have seen or know about where Social Media is trying to come in as evidence in cases
• Recent decisions or ethic opinions that touch on this subject
Social Media and Employment
HOT TOPIC:How are employers today using Social Media to
research prospective hires?• What are employers looking for when
searching online to learn more about prospective hires?
• Pros & Cons of researching prospective hires online
© 2011 Robert Half Legal. An Equal Opportunity Employer.
The New Rules of EtiquetteYou’ve mastered traditional business etiquette, seamlessly reaching for the right fork
during a professional dinner while engaging in animated conversation with your dining companions. But at a time in which more business discussions take place via LinkedIn, Twitter or e-mail than over cocktails and hors d’oeuvres, it’s just as important – if not more so- to know how to present yourself professionally using digital tools.
Given the newness of social media and other communications vehicles, it’s easy to say or do the wrong thing. Unfortunately, missteps in this area can have lasting consequences: An online mistake can show up next to your name in an Internet search for years to come. To help you avoid falling victim to such blunders, Robert Half has created this guide offering insights into digital protocols, as well as advice for handling sticky situations. The information and tips are based on surveys of executives, independent research, input from social media and etiquette experts, and our own experiences working with job candidate and clients throughout North America.
Overview
SOCIAL MEDIA CAN BE A GREAT TOOL TO USE FOR YOUR FIRM AND/OR CAREER – JUST
MAKE SURE YOU ARE USING IT RIGHT!• Starting your “Digital Footprint”• Professional networking sites (LinkedIn)• Social networking sites (Facebook)• Twitter• Networking in just five minutes a day
What Does Your Digital Footprint Say About You?
• Search yourself regularly– Set up alerts
• If you have a common name, use a variation, such as including your middle name
• Post information that adds to your credibility– Blog posts in your industry– Participation in LinkedIn groups– Start your own social media feeds
• Complete your profile• Take notice• Prioritize quality over quantity• Request recommendations individually
LinkedIn Networking Tips
LinkedIn Networking Tips
• Make the connection clear• Go ahead – use the form letter!• Protect your contacts• Recommend thoughtfully
– Check your company’s policy– Avoid “payback”
Mark JonesProject ManagerXYZ Company
Social Networking Sites, Including Facebook
Is it okay to “friend” your boss on Facebook?
To Friend or Not to Friend?Executives were asked, “How comfortable would you feel being ‘friended’ by the following individuals on Facebook?” Their responses:
Source: Robert Half survey of 249 senior executives at the largest companies in the United States and Canada
Your boss Your coworker People you manage
Very comfortable 15% 10% 10%
Somewhat comfortable 23% 37% 27%
Not very comfortable 17% 15% 18%
Not comfortable at all 38% 32% 39%
Don’t know 7% 6% 6%
Social Networking Tips
• Get a vanity URL – (e.g., www.facebook.com/johndoe)
• Include a personal photo, but not too personal
• Respect the wall– Regularly check your privacy settings
• Keep it focused– Limit sharing of games, quiz results
Social Networking Tips
• Ask before you tag• Don’t be a pest• Don’t poke• Keep it private
Test Your Twitter I.Q.• What’s a “Twibe?”• What does “RT” stand for?• What’s a “Fail Whale?”
© 2011 Twitter.com
Twitter Tips
• Introduce yourself• Listen• Add value• Tweet regularly• Pay it forward
Joe Business
Twitter Tips• Say thanks• Keep it light• Be open• But not too open• Connect your LinkedIn and Twitter
accounts using the hash tag #in when appropriate
Tend to Your Network in Just Five Minutes a Day
• Do small favors• Offer introductions• Add someone new each week• Join up
Conclusion
• Social Media, when used properly and within the confines of an appropriate policy, can be a great tool for your business and career
• Remember – once information is out there, you can’t take it back!
• Present your most positive self and know your company’s policies surrounding social media
Do’s and Don’ts of Social Media in Law Firms
1.0 hour MO MCLE Ethics Credit