social media and ethics: avoiding costly mistakes media... · networking and continental breakfast...

SOCIAL MEDIA and ETHICS:

Avoiding Costly MistakesPanelists

JUDGE CURTIS E.A. KARNOW Superior Court, County of San Francisco

JAMES S. DeGRAWPartner, Ropes & Gray LLP

ERIC J. SINRODPartner, Duane Morris LLP

RICHARD zITRIN Of Counsel, Carlson Calladine & Peterson LLP

VITALy GASHPAR Moderator

2.0 CLE creditsWednesday, January 23, 2013

8:30 to 9 am – registration, networking and

continental breakfast

9 to 11 am – program

Commonwealth Club595 Market Street, 2nd Floor

Downtown San Francisco(Montgomery Street Bart/Muni)

in this Recorder Roundtable, distinguished panelists will discuss the ethical pitfalls in using social media to investigate and prepare cases. From a judicial perspective to views from practitioners who have developed expertise in the fi eld, attendees will learn the latest information on avoiding costly mistakes in use of social media in their practices. This 2-hour, live cLe panel includes time for audience questions and answers.

8:30–9:00 Registration

9:00–9:30 competence — familiarity with social media and meeting the standard of care

9:30–10:00 advertising/solicitation — social media postings and advertising — including new state bar opinion

10:00–10:15 social Media Relationships — Facebook friends and rules of professional responsibility

10:15–10:30 investigations — issues with social media investigations of witnesses, opposing parties, jurors

10:30–11:00 audience Q&a

RECORDERESSENTIAL CALIFORNIA LEGAL CONTENT1035 MARKET ST., SUITE 500 | SAN FRANCISCO, CA 94103 | 415.490.9990

Social Media and Ethics: Avoiding Costly Mistakes

Index to supplemental materials

Capital Accounts: Like to Brag on Twitter? Don’t Forget the Fine Print . . . . . . . . . . . . . . 5

Bill Aims to Protect Public Employees’ Social Media Accounts . . . . . . . . . . . . . . . . 6

Whose Friends Are They Anyway?. . . . . . . 7

Marketing Through Social Media . . . . . . . 8

Is Lying on Facebook a Crime? . . . . . . . . . 10

Opinion No. 2012-186. . . . . . . . . . . . . . . . . . 13

2 The Recorder Roundtable Best Practices: SOCIAL MEDIA AND ETHICS January 23, 2013

JUDGE CURTIS E.A. KARNOW Superior Court, County of San Francisco

Judge Karnow serves in the Complex Litiga-tion Department of the Superior Court of Califor-nia, San Francisco County, and is Presiding Judge of the Appellate Division. He received his A.B. cum laude from Harvard University in 1974, and his J.D. from the University of Pennsylvania in 1977 where he was an editor of the Law Review. While in private practice, Judge Karnow special-ized in antitrust, intellectual property, computer and internet law. He has served on many of California’s Judicial Council committees and groups devoted to technology, electronic discov-ery, rules reform, temporary judges, civics and the law, appellate procedure, sealing records and summary judgment. Judge Karnow has lectured at schools including the University of Michigan Business School, Yale Law School, and the Haas School of Business at the University of California at Berkeley, University of San Francisco School of Law, Hastings College of the Law, and he teaches a variety of civil litigation courses to new and experienced California judges. He is consult-ing editor on California Civil Discovery Practice (CEB), Handling Experts in California Courts (CEB), and is the author of (among other books) How The Courts Work and Future Codes: Essays in Advanced Computer Technology and the Law. Judge Karnow is also a contributory co-author of California Civil Procedure (West 1991); eBusiness and Insurance (CCH:2001); International eCom-merce (CCH:2001); and Network Security: The Complete Reference (2004). The subjects of Judge Karnow’s law review articles range from how to use precedent, summary judgment, and legal education, to game theory, bail, and artificial intelligence.

JAMES S. DeGRAWPartner, Ropes & Gray LLP

Jim DeGraw is a corporate technology partner who works with clients to anticipate and handle the legal issues presented by ever-changing technologies. He regularly leads transactions for which technology or IP assets are key drivers, provides clients with strategic advice on protect-ing and maximizing their investments in technol-ogy, and advises clients on handling and securing the data their businesses collect and process. Jim brings to any representation his computer sci-ence background and his experience working for firm clients on technology matters while based in Asia.

In addition to technology-focused mergers & acquisitions, Jim’s transactional work includes working with clients to structure complicated and strategic technology relationships, including cross-border joint ventures, complex business licensing transactions and strategic business process outsourcing relationships.

Jim also provides strategic advice to clients on handling and protecting data, technology, and the intellectual property assets of their busi-nesses. This includes helping clients develop and protect businesses whether through targeted marketing campaigns by consumer product companies or portfolio licensing programs by ac-ademic research centers, and navigating myriad intellectual property issues to put together com-prehensive protection strategies. It also includes advising clients on their collection, handling and protection of data by their organizations, and for navigating the opportunities and concerns raised by changes to data privacy and security laws and by the growth of social media.

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ERIC J. SINRODPartner, Duane Morris LLP

Eric J. Sinrod ([email protected]; 415-957-3019) is a partner in the San Francisco office of Duane Morris LLP. He is a strong and experienced advocate for his clients and has rep-resented them before the United States Supreme Court, other appellate courts, and in a number of jury and court trials, arbitrations and mediations. His practice has covered many important Inter-net, software, software defect, technology, intel-lectual property (trademark, copyright, patent, trade secrets), information, communications, commercial, antitrust, eDiscovery, education, en-vironmental, and insurance coverage issues. He has represented domestic and international cli-ents in major class actions and where hundreds of millions of dollars have been at stake. He also has handled numerous matters for smaller com-panies and individuals. Eric has been highlighted by an outside publication as “the leading IP attorney in the land,” and he has been selected by his peers as one of the “Best Lawyers in America” in the area of Cyber Law and annually as a “Super Lawyer” for Business Litigation. Eric has a reputa-tion for being immediately responsive to clients and working efficiently and within budgets. He is considered a thought-leader on electronic discovery issues, which can lead to great cost sav-ings for clients. While Eric is creative in coming up with solutions to resolve disputes, he will fight strategically when that is in the best interests of clients. He also serves as a mediator, and strives to resolve disputes efficiently and effectively for all parties. After a recent matter in which Eric acted as mediator, one attorney stated: “Eric, we were very happy with how you handled the mediation; I would use you again in a heartbeat.” He also is innovative and entrepreneurial; for example, he was an early pioneer and developer of Internet law, he started the first Cyberlaw blog, and he also spearheaded Duane Morris’ merger with Hancock, Rothert & Bunshoft.

VITALy GASHPAR Moderator

Vitaly Gashpar is the substantive law editor of The Recorder and therecorder.com, a print weekly newspaper and a daily website providing essential California legal content. Vitaly joined The Recorder in 2010. He is licensed to practice law in California and Illinois and received his JD from The John Marshall Law School. Prior to join-ing The Recorder, Vitaly practiced in the field of commercial litigation in Chicago with the firm of Robbins, Salomon & Patt.

RICHARD zITRIN Of Counsel, Carlson Calladine & Peterson LLP

Richard Zitrin is of counsel to the San Fran-cisco firm of Carlson, Calladine & Peterson, LLP, and a Lecturer in Law at the University of California, Hastings College of the Law. He spent 34 years as a named partner in his own firm, has taught legal ethics at Hastings since 1994 and at the University of San Francisco School of Law from 1977 to 2005, where he became coordinator of the course’s curriculum in 1991 and from 2000 to 2004 was the founder and first Director of the Center for Applied Legal Ethics. He is certified as a specialist in Legal Malpractice by the California State Bar Board of Legal Specialization.

Richard’s principal practice involves a wide range of attorney conduct issues, including litigating legal malpractice claims on behalf of plaintiffs and advising attorneys on issues of legal ethics, attorneys’ fees and malpractice avoidance. He has extensive experience and training as both a trial lawyer and mediator. He has tried approxi-mately 50 cases to verdict, has taught trial prac-tice at USF, and has mediated extensively since the late 1970s. He has co authored a general-au-dience book on lawyers and the American legal system, The Moral Compass of the American Lawyer (Ballantine, 1999), a textbook that em-phasizes a practical approach to teaching ethics, Legal Ethics in the Practice of Law (LEXISNEXIS, 4th edition forthcoming, 2013), and an annually-updated book comparing the rules of ethics, Legal Ethics Rules, Statutes and Comparisons (LEXISNEXIS, 2013). He has published widely on issues of legal ethics in law review articles, as a columnist for American Lawyer Media (ALM), and in op-ed pieces in general circulation media. He currently writes a column for ALM and The Recorder entitled “The Moral Compass.” He speaks nationally and locally to lawyers, judges, law students, bar groups, and other professional organizations on ethics, malpractice, and other attorney practice issues.


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Capital Accounts: Like to Brag on Twitter? Don’t Forget the Fine PrintBy Cheryl Miller The RecorderJanuary 4, 2013

SACRAMENTO — Facebooking lawyers beware. Sharing and celebrating a legal victory with your e-friends is fine. But highlighting that win while simultaneously asking “Who’s next?” could get you in trouble.

That’s the stand of the State Bar’s Standing Committee on Professional Responsibility and Conduct. In a recently released formal opinion, the committee warned that profes-sional rules governing legal advertising and communicating “are not relaxed merely because such compliance might be more difficult or awkward in a social media setting.”

The opinion was spurred by what bar officials described as a hypothetical scenario: Over the course of a month, an attorney tells about 500 personal and professional Facebook friends things like “Case finally over. Unanimous verdict! Celebrating tonight.” And: “Won another personal injury case. Call me for a free consultation.”

Committee members decided that the ethical line for her comments turn on whether they concern her “availability for professional employment,” a test established in Rule of Professional Conduct 1-400. “Case finally over ... Celebrat-ing tonight” doesn’t cross the line because it doesn’t offer the lawyer’s services, the committee said.

Conversely, posting “Another great victory in court today! My client is delighted. Who wants to be next?” goes too far, according to the opinion. The “Who wants to be next” solicita-tion triggers a host of restrictions. Proclaiming her client de-lighted violates a ban on distributing testimonials unless they include a disclaimer. Also, asking “Who wants to be next?” could be interpreted as improperly guaranteeing or predicting “the result of the representation.” Finally, making a pitch to potential clients should be accompanied by the word “ad-vertisement,” “newsletter” or some other verbal cue alerting readers to the lawyer’s monetary interest, the committee said.

Likewise, the committee found the post “Won another per-sonal injury case. Call me for a free consultation” troublesome because it doesn’t include the word “advertisement.”

While specifically addressing a Facebooking attorney, the opinion covers all forms of social media. That, potentially, means some wordy disclaimers would have to be crammed into a 140-character-capped Twitter post.

“Attorneys may argue that including this wording for each ‘communication’ posting would be overly burdensome, and destroy the conversational and impromptu nature of a social

media status posting,” the committee wrote. “The committee is of the view, however, that an attorney has an obligation to advertise in a manner that complies with applicable ethical rules. If compliance makes the advertisement seem awkward, the solution is to change the form of advertisement so that compliance is possible.”

The formal opinion, which isn’t binding but could carry weight with the State Bar Court and state Supreme Court, offered bar officials the chance to wade into the convoluted arena of legal marketing on social media. A survey of law-yers, marketers and administrators released in early 2012 by Recorder affiliate ALM Legal Intelligence found that almost 85 percent of lawyers working at firms represented by survey respondents used Twitter, Facebook, LinkedIn or other social networking sites. Nearly 90 percent of respondents said us-ing social media in their marketing, recruiting and business development efforts was “a high priority.”

David Cameron Carr, a San Diego attorney who specializes in legal ethics and disciplinary defense, said in an email that the opinion “seems sound” and reflects what he’s preached in continuing education courses for some time. But he also noted that he’s never had a client come to him with a concern, a problem or a State Bar complaint involving social media.

“From the discipline perspective, the whole issue seems to me overblown, reflecting the popular and media obsession with social media, rather than any dramatic new set of ethical issues,” Carr said.

Bar staff said they couldn’t remember what if anything spurred the request for an ethics opinion. Such requests are supposed to be hypothetical in nature and not based on exact circumstances, Bar spokeswoman Laura Ernde said. Bar staff-ers said they couldn’t immediately remember a lawyer being disciplined for similar actions.

BUDGET TIMEThe Legislature returns to work on Monday and all eyes will

immediately turn to Governor Jerry Brown, who is expected to release his annual budget on Thursday. Judiciary leaders will be looking for three key items in the 2013-14 spending plan.

First, budget watchers both inside and outside of the Capi-tol seem resigned that the governor will propose swiping $200 million in trial court reserves a year earlier than planned. That will kick the issue to legislators, who can expect numerous visits and phone calls from anxious presiding judges trying to figure out how they’re going to pay the bills. Lawmakers could try to find the money somewhere else, but where? Courts rarely fare well when cutting them means salvaging schools or social welfare programs. Could the remaining money in the courts construction fund be at risk?

Second, Judicial Council members are still hoping against hope that the budget includes money to pay for the Long Beach courthouse. Again, the Legislature will have several months to decide whether to cover the first payments on the new courthouse — freeing up millions in bond money for other projects around the state — or to stamp out for good any


public-private development plans ignited during the Schwar-zenegger administration.

Finally, presiding judges will be looking for clarity on — and maybe an increase of — the 1 percent cap on trial court reserves imposed by last year’s budget deal. Presiding judges are fretting that the restrictions will cause real cash-flow prob-lems and may even threaten payrolls. But Brown has moved to consolidate funding and funding decisions at the state lev-el. Lifting the reserves cap or offering trial court leaders more budgeting flexibility could signal a change in his thinking.

Please see OPINION NO. 2012-186 on page 13.

Bill Aims to Protect Public Employees’ Social Media AccountsBy Cheryl Miller The RecorderDecember 20, 2012

SACRAMENTO — The author of a new law that will bar companies from seeking their workers’ social media pass-words has introduced legislation to extend the protections specifically to public employees.

Assembly Bill 25 would prohibit public agencies from seek-ing access to workers’ or job applicants’ Twitter accounts, Facebook pages or other privately generated electronic con-tent. The restrictions mirror those included in Assembly Bill 1844, which was signed by Governor Jerry Brown in Septem-ber and generically targets employers — with no reference to their public or private status. The legislation will become law on Jan. 1.

It’s unclear why AB 1844 author Assemblywoman Nora Campos, D-San Jose, is carrying new legislation aimed spe-cifically at public agencies. Several messages left with her Capitol office were not returned.

But employment lawyers said AB 25 is almost certainly meant to clear up any doubt that the new social media provi-sions apply equally to public employees. Recent appellate court decisions have called into question whether certain sec-tions of the state Labor Code, where the new law is contained, extend beyond the private sector, said Robert Milligan, a partner in Seyfarth Shaw’s litigation and labor and employ-ment sections.

“Assemblywoman Campos’ office has probably proposed the bill to make clear that it applies to public- and private-sector employees in light of the California court decisions,” Milligan said.

AB 25 declares employees’ social media protection “a mat-ter of statewide interest,” a finding that would extend the law’s reach into charter cities and counties.

The restrictions contained in AB 1844 and now AB 25 have generated a range of reactions among employment litigators, from shrugs to warnings about unintended consequences.

“I would be surprised if this is anything more than a blip on the radar screen” of most employment lawyers, said Jeffrey Sloan, a partner with Renne Sloan Holtzman Sakai. Sloan said few employers seem eager to dive into an applicant’s Face-book account or Twitter feed. And if an employer does want to know what a prospective worker or employee is saying in cyberspace, “90 percent of the time ... we can usually access that information” without needing a password.

Sloan did say employers want assurances that they can ask for workers’ social media passwords during investigations of employee misconduct or wrongdoing. Both AB 1844 and AB 25 contain such provisions.

Other lawyers like Milligan worry that new restrictions are too vague for a workplace where the lines between personal and company-controlled data can blur. Although Campos has repeatedly said her legislation is aimed at employers seeking access to well-known sites like Facebook, both AB 1844 and AB 25 broadly define social media as almost any kind of elec-tronically stored data, from blogs to photos to text messages.

What happens with a company that has a bring-your-own-device policy allowing workers to connect their personal laptops to a corporate network? Milligan asked. Should the employer be allowed to seek passwords for blogs or social accounts created with the company’s resources? Do workers keep sole control of their Twitter handles when they leave a company, even if the posts were heavily tied to the employer’s brand or activities? Milligan said the pending and proposed laws aren’t clear.

“I just don’t think the statute is really thought out,” he said. “It’s going to lead to some unintended consequences down the road.”

Milligan said he advises employers to draw up clear em-ployee agreements that ensure social media accounts stay in the company’s control.

California was one of five states in 2012 that enacted leg-islation barring employers from seeking access to workers’ personal social media accounts. AB 1844 was passed with overwhelming support in the Legislature even though the au-thor’s office could only point to a handful of incidents around the country where employers had sought their employers’ personal log-in information.


Whose Friends Are They Anyway?By Donna Rutter and Karen Pazzani The RecorderNovember 14, 2012

Safeguarding and defining trade secrets has become increasingly difficult in the rapidly advancing digital world. Many companies now utilize social media sites such as Facebook, Twitter and Linkedin to attract and communicate with their customers. However, these companies may find themselves in a precarious position if the employee tasked with maintaining the company’s social media accounts leaves the company, particularly if the employee leaves to work for a competitor. Questions can arise regarding whether the account maintained by the employee is a personal or work ac-count and to what extent the employer can assert an interest over the account, including the associated contacts. In many ways, social media account “friends” are becoming the new Rolodex or client list. When an employee leaves, companies are left to grapple with whether the social media account “friends” are a trade secret and whether the company can pre-vent the former employee from using her social media friend-ships in her next position for the benefit of the new employer. Courts across the country are just beginning to address these issues, with varying outcomes.

One of the first cases to address the ownership and status of a social media account was PhoneDog v. Kravitz, C11-03474 MEJ, in 2011. PhoneDog is an interactive mobile news and review web source that reviews mobile products and services and uses a variety of social media, including Twitter, Face-book and YouTube, to market and promote its services to users. The defendant, Noah Kravitz, worked for PhoneDog as a product reviewer and video blogger. In that role, PhoneDog gave Kravitz a Twitter account — @PhoneDog_Noah — which Kravitz used to transmit his product reviews and blogs to PhoneDog’s customers. The Twitter account had approxi-mately 17,000 followers. When Kravitz ended his employment with PhoneDog, he refused to relinquish control of the Twitter account. Instead, he changed the handle to “@noahkravitz” and continued to use the account — with its 17,000 followers — while working at a competitor company.

PhoneDog sued Kravitz for misappropriation of trade se-crets, among other claims. Kravitz moved to dismiss Phone-Dog’s complaint, arguing that the Twitter account followers could not be a trade secret because the followers of the Twit-ter account are not secret; they are publicly available for all to see. The U.S. District Court in San Francisco rejected this argu-ment, holding that at the pleading stage, PhoneDog had suffi-ciently stated a claim for misappropriation of trade secrets by describing with sufficient particularity the alleged trade secret — the Twitter account followers — and Kravitz’s refusal to

relinquish control of the Twitter account. However, the court sidestepped definitively holding that Twitter account follow-ers can constitute a trade secret. The court reserved judgment on this issue until after the pleading stage.

A Colorado federal court followed the California court’s lead in Christou v. Beatport, 10-02912, allowing a plaintiff’s trade secret misappropriation claim premised on the theft of MySpace friends to survive the pleading stage. In Christou, the plaintiff, who owned several nightclubs in Denver referred to as “SOCO,” employed the defendant to maintain a MySpace account and become “friends” with SOCO’s patrons and vendors. The defendant subsequently broke ties with SOCO, formed his own competing nightclub, and allegedly stole SOCO’s MySpace “friends” and tried to drive SOCO out of the electronic dance club business. Plaintiff sued for the theft of SOCO’s MySpace friends, alleging that SOCO’s relationship with the individual friends on MySpace constituted a trade secret. The court allowed the claim to pass the pleading stage, reasoning that the plaintiff’s effort and expense in friending thousands of potential dance club patrons and vendors, and thus having their contact information and permission to con-tact them, could constitute a protectable trade secret.

On the other side of the country, a Pennsylvania U.S. Dis-trict Court reached the opposite conclusion last year. In Eagle v. Morgan, 11-4303, the court found that LinkedIn contacts did not constitute a trade secret because information regard-ing the company’s customers and connections was publicly available. However, the court found the company could assert an ownership interest in its former executive’s LinkedIn ac-count where the account had been established and main-tained by the company for the benefit of the company.

The plaintiff in Eagle, Linda Eagle, co-founded Edcomm Inc. In 2008, Eagle established a LinkedIn account to promote Edcomm; foster her reputation as a businesswoman; recon-nect with family, friends and colleagues; and build social and professional relationships. An Edcomm employee assisted Eagle in maintaining the LinkedIn account and had access to Eagle’s password. In 2010, Edcomm was sold to Sawabeh Information Services Co. and Eagle was subsequently invol-untarily terminated. Following her termination, Eagle found the password to her LinkedIn account had been changed. The LinkedIn page previously associated with Eagle was changed to a page featuring Edcomm’s interim CEO. Eagle filed a lawsuit against Edcomm, and after filing suit, regained control over the LinkedIn account. However, she refused to return to Edcomm the proprietary information associated with the account, leading Edcomm to file counterclaims against her. Edcomm’s counterclaims included misappropriation of trade secrets and misappropriation of an idea based on Eagle’s use of the LinkedIn account.

Based on Eagle’s motion for judgment on the pleadings, the court dismissed the trade secret claim, finding that the Linke-dIn account connections could not be a trade secret because they were generally known in the business community and


could easily be derived from public information. However, with respect to the misappropriation of an idea claim, the court found that Edcomm stated sufficient facts to survive the motion because Edcomm had a stated policy requiring execu-tives to create LinkedIn accounts using an Edcomm template. Moreover, Edcomm personnel, not Eagle, developed and maintained all connections and much of the content of the LinkedIn account.

None of the cases discussed have advanced past the plead-ing stage, but they illustrate the complicated issues that can arise with employee mobility in the social media era. While companies may be wise to embrace social media as an avenue for reaching new customers and expanding their business models, they should be careful to ensure that they are not handing their client lists to employees who can later transport that information to competitors through their social media accounts.

Furthermore, as the Eagle case illustrates, even if social me-dia account friends or followers are not ultimately found to be trade secrets, companies may be able to maintain control over social media accounts when employees depart by creating clear policies and practices related to the use and ownership of social media accounts. To maintain employer control and limit the publication of friend lists, such policies could include restrictions on how and when employees access social media accounts and restrictions on publishing information regarding social media account friends.

Adopting a social media policy, however, is not without complications. The National Labor Relations Board has recently taken aim at a variety of social media policies, find-ing that certain policies may infringe on an employee’s right under the National Labor Relations Act to engage in concerted activity. In the past year, the NLRB’s acting general counsel has issued three reports regarding the NLRB’s position on so-cial media policies. Of particular concern to employers wish-ing to protect the confidentiality of their social media friends, the reports have stated that the following policies, among others, are unlawful because they are overbroad and restrict concerted activity:

• A confidentiality rule warning employees about sharing confidential information without specifically identifying cat-egories of non-NLRA protected confidential information; and

• A policy instructing employees not to “release confidential guest, team member or company information.”

Additionally, on Jan. 1, a new law will take effect in Cali-fornia prohibiting employers from requiring an employee or applicant to (1) disclose their username or password to personal social media sites; (2) access personal social media in the presence of the employer; or (3) divulge any personal social media. Maryland and Illinois have also passed similar legislation this year restricting an employer’s ability to request information regarding personal social media sites. These laws may make it more difficult for employers to gain access to a departing employee’s social media account if the employee

claims it is a personal, not business, account.In light of the NLRB’s focus on social media policies and

legislation aimed at protecting employee’s privacy with respect to personal social media accounts, companies that use social media, particularly those in California, will have to tread carefully when developing a social media policy.

Donna Rutter is a shareholder and Karen Pazzani is an associate with Miller Law Group, a management-side employ-ment law firm with offices in San Francisco and Los Angeles. Rutter has built an extensive trade secret/unfair competition/employee mobility practice, based on more than 20 years of litigating and advising on trade secret matters. Pazzani advises businesses on a wide range of employment issues and represents employers in employment litigation matters.

Marketing Through Social MediaBy Rochelle D. AlpertThe RecorderNovember 2, 2012

In the past five years, social media use by businesses and consumers alike has grown exponentially, as have the plat-forms available for use. These social networking platforms have become popular household references, commonly relied on in all facets of consumers’ lives. The popularity of these platforms has attracted businesses of all types to social media. Social media platforms provide a cost-effective means for all businesses to reach a broad range of consumers, not just tech-savvy consumers. By way of example, at the end of 2011, Whole Foods reportedly had 2.1 million consumers following its Twitter feed.

Nonetheless, companies often enter the social media mar-ketplace by simply spending the five minutes or less needed for creating a profile on a social media platform. Somehow, social media platforms, given the easy-to-use formats and casual style, easily lull businesses into abandoning standard legal principles applicable to advertising and marketing, let alone complying with the newer rules designed to address specifically misleading consumers on these new platforms, such as the FTC Guides Concerning the Use of Endorsements and Testimonials in Advertisings.

As the FTC guides recognize, in marketing activities on social media, companies need to adhere to “old-school” prin-ciples as well as “new” principles designed specifically to ad-dress consumers’ need for accurate and not misleading infor-mation on social media. Just because tweets only can consist


of 140 characters does not mean that a company is absolved from complying with consumer protection, false advertising standards or the FTC guides. From generally complying with state and federal legal requirements covering marketing and advertising activities to specifically complying with the FTC guides, companies need to proactively and continually ad-dress risks arising from the use of social media to avoid legal pitfalls as well as to maintain strong brand identities.

INTERNAL SOCIAL MEDIA GUIDELINESTo begin with, every business should implement a program

to continually educate employees about how to use social media, including creating written internal guidelines address-ing the company’s social media activities. From social media, marketers often see what is “hot” among consumers and think they can engage in the same activity. In less than a year, Carly Rae Jepsen’s popular hit song, “Call Me Maybe,” has engen-dered hundreds of parodies from one by Cookie Monster to one by the United States Olympic swimming team. The swim team parody was posted on YouTube on July 26 and in less than three months has had 8,740,696 YouTube views — an ad-vertiser’s dream. Yet, if a business did a “Call Me Maybe” paro-dy video to promote its brand, it could well find itself in a law-suit over a host of legal issues, including copyright and right to publicity claims, among others. What might be protected free speech for consumers does not automatically translate to protected speech and prudent marketing for a business. Nor should companies assume that just because a competitor or another company engages in a social media activity that the company can and should imitate that same activity. These types of common assumptions should be addressed in social media guidelines to simply remind employees that social me-dia does not eliminate intellectual property, false advertising and other legal risks for marketing and advertising activities. The same advertising and marketing rules apply to the new medium along with additional rules. Indeed, social media’s inherent nature likely increases those risks, since oftentimes social media activities are widely shared and become more readily discoverable.

As part of social media guidelines, companies should assess social media platforms and identify those that best meet busi-ness needs. A bank, an alcoholic beverage company or other types of companies operating in regulated environments may have needs that are not met by a social media platform’s stan-dard terms of use. If those circumstances exist, a company needs to consider how it can address its regulatory needs on the platform through the implementation of its own terms of use or ultimately choose to use a different platform where it can better assure regulatory compliance. Likewise, if a com-pany is concerned about negative social media comments, it needs to identify which social media platforms provide the company an opportunity to block “unwanted” followers or moderate posts, and to encourage or require use of those platforms rather than others.

The fact that the social media arena is no different than

traditional media as to the disclosure of confidential and other business information may seem self-evident, but the fast, and seemingly, off-the-cuff nature of social media can inadvertently create mishaps. Thus, social media guidelines and training should always include at the very least reminders about use on social media of:

• Confidential business information, including new product plans, unannounced financial results, pricing information and stock prices.

• Personal opinions and views as opposed to opinions and view of the business.

• Comments about competitors and their products.• Comments on legal matters.• Insensitive statements, including those that might be

construed as discriminatory, harassing or culturally mis-guided.

• References to individuals unaffiliated with the business. For example, it is one thing for a celebrity to state that he or she loves your product unprompted, but right to public-ity issues may be raised if you start promoting the celeb-rity’s use of your product without consent.

• False, inaccurate or misleading information.• The intellectual property of others, including trademarks

and copyrights.Overall, the guidelines should set out the company’s best

practices for social media initiatives, including the goals for managing, monitoring and posting on social media. Given the evolving nature of social media, it is also prudent to estab-lish how new approaches and issues can be efficiently and effectively addressed and evaluated by the company before implementation, so that the company can remain nimble, but at the same time act in a prudent business manner to avoid unwarranted legal risks. In fact, the guidelines should not be viewed as set once issued, but should be reviewed regularly to assess new platform issues and keep current with evolving legal principles.

GUIDELINES FOR WEB ENDORSEMENTS AND BLOGGERS In addition to guidelines as to how the company can use

social media, guidelines also need to address how third par-ties can and should use social media on the company’s behalf. Companies should implement guidelines specifically for blogging and bloggers, and endorsers with whom the com-pany works. The FTC guides make it clear that publication and implementation of a policy or guidelines on endorsements and bloggers and blogging can influence the nature and likeli-hood of FTC action. Although failure to follow the FTC guides is not in and of itself illegal, business practices that stray too far risk being investigated. If the business practice is found to be misleading, inaccurate or unfair under §5 of the FTC Act, an FTC proceeding could be commenced invoking the act’s attendant penalties, followed by possibly claims asserted by others under applicable state laws.

The FTC Guides reinforce fundamental principles of adver-tisements and marketing. Endorsements must (a) be truthful


and not misleading; (b) be based on proof that the endorser’s experiences with the product are typical or disclose conspicu-ously the typical experience; and (c) disclose any connection between the endorser and the company that would affect the reasonable consumer’s evaluation of the product. The FTC generally does not distinguish between mediums as to these fundamental principles.

There are certain specifications, however, that the FTC made applicable to social media to protect consumers. It is important to recognize that social media may create more ambiguities about needed disclosures than traditional media. While consumers, through long experience, may understand that celebrities are paid to appear in television ads promot-ing a company’s products — so that disclosures as to pay-ment may not have to be explicit — that is not the case for an endorser’s product references on social media. The nature of social media creates a very different environment. It is much harder to know whether a person has been paid or received free goods from a company when she simply tweets, likes, posts, pins or blogs about a product or company. Indeed, because of the seemingly personal nature of the Internet, consumers may be surprised to learn that the person praising a product online or in a blog received the product for free or at a discount. Thus, the FTC Guides require disclosures whether in tweets, blogs, posts or videos of a relationship with the advertiser or marketer. Given the nature of social media that is not always easy. How do you disclose in a 140-character favor-able tweet that you received the product at a discount? Rules about this type of issue and others continue to evolve, but at a minimum whether by words or a hashtag indicating that the tweet is an ad or sponsored, some disclosure of a relationship should be made so as to avoid misleading consumers.

Across online media, commercial relationships can be important to consumers, but disclosures can be tricky. Is it enough to list in your blog or profile that you are an employee or that you have a relationship with a company or the product that you post about? The answer is it all depends. For example, is it unclear that the product on which you are commenting relates to or is made by your employer, or can your comment be forwarded to another consumer who would not have ac-cess to your profile? If the answer to either question is in the affirmative, it is prudent to disclose the relationship in or with your product comments even if a more general disclosure ap-pears on a personal profile. Similarly, if a business gives free goods or compensates bloggers for referring to their products on their blogs or reviews, the business should have a policy that bloggers or endorsers disclose the relationship with the business when commenting on the business or its goods or services. This includes disclosures in connection with what might be characterized simply as positive product comments on third-party sites.

Under the FTC guides, the business as well as the blogger can be responsible for the nondisclosure by a third party who has been compensated or even just given free goods or dis-

counts. In fact, the FTC has more often focused on businesses for its enforcement activities than on bloggers.

CONCLUSIONSocial media platforms have forever changed the business/

customer relationship, challenging businesses fundamentally to reappraise the way they market and advertise, while at the same time requiring compliance with existing as well as new legal requirements. Having policies in place, educating employees and third parties about these policies, and assess-ing compliance are important to effectively using social media to create a strong brand presence while minimizing legal risks.

Rochelle D. Alpert is a partner in the intellectual property practice in Morgan, Lewis & Bockius’ San Francisco office. She can be reached at [email protected].

Is Lying on Facebook a Crime?By Jeffrey N. Rosenthal The RecorderNovember 2, 2012

Did you really go to Harvard? Were you actually born in 1982? Did you truly spend that summer backpacking through Europe? Your online profile certainly says so. But if such state-ments are, shall we say, somewhat less than truthful, did you just commit a federal computer crime? In other words, could lying on Facebook really land you in jail?

yOU CAN’T HANDLE THE TRUTHRelax. It is highly unlikely that a decision to fudge your age

or weight or use a fake name on Facebook is going to result in any extended jail time. But just in case you were planning on making a habit of it, know that there was once a time when the federal government actually argued such conduct could theoretically be deemed criminal.

Few people realize that claiming to be another person, creating multiple accounts, letting someone else log into your account or falsely representing an organization violates Face-book’s terms of service. Or that by using online dating sites like Match.com, you not only agree to “not provide inaccurate, misleading or false information to the company or to any other member,” but must also update any information that “subsequently becomes inaccurate, misleading or false.”

More importantly, by violating such terms of use, your ac-cess to these sites is technically unauthorized.

So the bigger question becomes: Is it a crime to violate a website’s terms of service? If so, millions of people could po-tentially be at risk for uploading false data to social media or online dating sites. And what about your company’s comput-


er-use policies? Could using ESPN.com at work to check a score get you in hot water with the Department of Justice?

THE TRUTH IS (NOT NECESSARILY) OUT THEREThink people only upload truthful information about

themselves on social media sites? Why not ask Darth Vader, who apparently settled in Allentown, Pa., after his storied adventures during the Star Wars saga. At least that is what his Facebook page says.

In fact, according to a June study of 2,000 households by Consumer Reports, 25 percent of Facebook users admitted to falsifying information on the site — be it their name, birth date or location. This was double the number of users from two years ago.

So what happens if you throw caution to the wind and continue to post such “creative” information? Have you done something illegal? The answer may surprise you.

COMPUTER FRAUD AND ABUSE ACT OF 1986In 1984, Congress initiated a campaign against computer

crime by passing the Counterfeit Access Device and Comput-er Fraud and Abuse Act. Shortly thereafter, it expanded the act with a revised version: the Computer Fraud and Abuse Act.

Originally intended to help crack down on computer hack-ing, the CFAA also assists the federal government in prosecut-ing computer fraud cases.

Passed in 1986 and amended several times — most nota-bly as part of the U.S.A. Patriot Act in 2001 — the reach of the CFAA has expanded over the years.

Despite it being primarily a criminal statute, a civil provi-sion was added to the CFAA in 1994 to provide a private cause of action if a violation causes loss or damage, as defined therein. In 2008, the CFAA was further amended by the Iden-tity Theft Enforcement and Restitution Act — which eliminat-ed the threshold need for a plaintiff’s loss to be greater than $5,000 and made it a felony for a user to cause damage to 10 or more computers.

According to the Electronic Frontier Foundation’s Internet Law Treatise (ilt.eff.org), a CFAA violation can be commit-ted in two ways: either by an outsider who trespasses into a computer, or by an intruder who goes beyond the scope of his or her given authorization.

Congress did not define the phrase “without authorization” — perhaps assuming the words speak for themselves. But the term “exceeds authorized access” is defined by §1030(e)(6) to mean “to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter.” Courts have recognized the distinction between these terms is “argu-ably minute.”

OUT OF PLACE ON MySPACEThe most notable use of the CFAA to target those accused

of exceeding their authorized access to social media sites occurred in the lamentable case of United States v. Drew, 259 F.R.D. 449 — referred to by The New York Times as the coun-try’s “first cyberbullying verdict.”

In Drew, defendant Lori Drew was charged with violating the CFAA by using a fictitious name and age on a Myspace account to make hurtful comments to a teenage girl in the fall of 2006. Tragically, the girl later took her own life. Following a wave of public outcry, federal prosecutors claimed Drew broke federal law by violating Myspace’s terms of service — and that her communications were responsible for the teen’s death. Drew was subsequently convicted of a misdemeanor under the CFAA in November 2008.

But in 2009, a California federal judge threw out the convic-tion after the court determined the CFAA was inapplicable to the allegation that Drew violated Myspace’s terms of service, as it would effectively “criminalize ... a breach of contract.” There was no appeal.

COMPUTER-USE POLICIES AND THE CFAATwo schools of thought exist with respect to violations of

corporate policies and the CFAA.The first, promulgated by the U.S. Court of Appeals for the

Seventh Circuit in the 2006 case, International Airport Centers v. Citrin, 440 F.3d 418, holds that when an employee accesses a computer or information on a computer to further interests that are adverse to his or her employer, he or she violates his or her duty of loyalty — thereby terminating his or her agency relationship and losing any authority he or she has to access the computer or any information on it. Thus, the Seventh Circuit held that an employee who erased crucial data on his company laptop prior to turning it in at the end of his employ-ment violated the CFAA. It reasoned his “breach of his duty of loyalty terminated his agency relationship ... and with it his authority to access the laptop, because the only basis of his authority had been that relationship.” The Fifth and Eleventh circuits follow this approach.

The second school of thought, articulated by the Ninth Cir-cuit in United States v. Nosal, 676 F.3d 854, interprets the terms “without authorization” and “exceeds authorized access” literally and narrowly, limiting their application to situations where an individual accesses a computer (or information on a computer) without permission.

In Nosal, the Ninth Circuit, sitting en banc, held the defen-dant’s co-conspirators, a group of employees at an executive search firm, did not violate the CFAA when they retrieved confidential information via their company user accounts and transferred it to the defendant, a competitor and former employee. It reasoned the CFAA fails to provide a remedy for the violation of a use policy where authorization has not been rescinded.

Notably, as part of the Nosal decision, authored by Ninth Circuit Chief Judge Alex Kozinski, the court “respectfully declined to follow our sister circuits,” and “urge[d] them to reconsider instead.”

At least one other circuit has heeded Kozinski’s advice — this time in the context of a civil CFAA claim. Despite disagreeing with the Ninth Circuit’s exact interpretation of “exceeds authorized access” — in that it could, theoretically,


impute liability to employees with no intent to defraud — the Fourth Circuit in WEC Carolina Energy Solutions v. Miller, 687 F.3d 199, nevertheless rejected the Seventh Circuit’s automatic “cessation-of-agency” theory. In so ruling, WEC Carolina sided with Nosal to find a former employee who, prior to his resignation, downloaded proprietary information at his new employer’s direction and then used it to make a presentation to a potential customer did not violate the CFAA.

The Fourth Circuit also noted that “other legal remedies” existed to dissuade such disloyal conduct. In so doing, the court endeavored to rein in efforts to utilize the expansive damages available under the CFAA — which can include response costs, damage assessments, restoration of data or programs, wages of employees for these tasks, lost sales, lost advertising revenue and even harm to reputation or good will.

IMPLICATIONSIs goofing off at work actionable? Should your Facebook

page be subject to a lie-detector test? As shown above, ques-tions such as these are currently working their way through both the judicial and legislative branches.

Conceivably, the recent momentum from the Ninth and Fourth Circuits will continue to limit the reach of the CFAA as it applies to nonfraudulent, everyday uses of workplace com-puters and websites.

There is also a block of individuals and organizations — led by Senator Patrick Leahy, D-Vt., and former Justice Depart-ment computer crime prosecutor Orin Kerr — who intend to correct what they see as a draconian interpretation of the CFAA.

For instance, in August, Leahy proposed an amendment to the Cybersecurity Act of 2012 (S 3413) to, in effect, adopt the Ninth Circuit’s narrow interpretation. That bill, however, failed to obtain the votes required to move it forward. And with Congress on recess (and its focus likely turning toward the up-coming November elections) commentators believe any such legislation is not expected to be voted on until next year.

Additional protection from prosecution may come from the government itself. During his testimony before Congress in November 2011, Richard Downing, deputy chief of the Department of Justice Computer Crime and Intellectual Prop-erty Section, testified that “the DOJ is in no way interested in bringing cases against the people who lie about their age on a dating site or anything of the sort. We don’t have time or resources to do that.”

Yet this reasoning was insufficient for Kozinski. Indeed, according to the Nosal court, “the government assures us that, whatever the scope of the CFAA, it won’t prosecute minor violations. But we shouldn’t have to live at the mercy of our local prosecutor.”

There is also the separate issue of whether a person even has notice of a particular website’s terms of use (which can, and do, change from time to time). Thus, “behavior that wasn’t criminal yesterday can become criminal today without an act of Congress, and without any notice whatsoever,” ac-

cording to Kozinski. And as noted commentator Paul Rosen-zweig has further observed, under the existing law, “private corporations can in effect establish what conduct violates federal criminal law when they draft such policies.”

Commentators have also discussed how the CFAA cases have long been likely candidates for Supreme Court review — given the apparent circuit split. And although the Department of Justice sought an extension to file a cert petition in Nosal one day after WEC Carolina was decided, it ultimately chose not to proceed in August without explanation.

Amazingly, if the strictest letter of the CFAA were to be ap-plied today, one-quarter of Facebook’s domestic users (about 29 million people) could, in theory, be transformed into fugi-tives for having something false on their pages. The remainder could be picked up for checking social media sites at work in violation of their company’s computer-use policy.

Obviously that is not going to happen.So, while there is certainly no need to go out and scrub the

content on your online dating or social media profile, it is at least worth thinking about the type of information you post online until this issue is ultimately resolved by the Legislature.

Jeffrey N. Rosenthal is an associate with Blank Rome. He concentrates his practice in the areas of complex corporate and commercial litigation, and specializes in cases involving tech-nology. He regularly publishes articles on the nontraditional uses of social media and its implications for modern practice. He can be reached at [email protected]. This article originally appeared in The Legal Intelligencer, aRecorder affili-ate.

THE STATE BAR OF CALIFORNIA STANDING COMMITTEE ON

PROFESSIONAL RESPONSIBILITY AND CONDUCT FORMAL OPINION NO. 2012-186

ISSUE: Under what circumstances would an attorney’s postings on social media websites be

subject to professional responsibility rules and standards governing attorney advertising?

DIGEST: Material posted by an attorney on a social media website will be subject to professional responsibility rules and standards governing attorney advertising if that material constitutes a “communication” within the meaning of rule 1-400 (Advertising and

Solicitation) of the Rules of Professional Conduct of the State Bar of California; or (2)

“advertising by electronic media” within the meaning of Article 9.5 (Legal Advertising)

of the State Bar Act. The restrictions imposed by the professional responsibility rules

and standards governing attorney advertising are not relaxed merely because such

compliance might be more difficult or awkward in a social media setting.

AUTHORITIES INTERPRETED: Rule 1-400 of the Rules of Professional Conduct of the State Bar of California.

1

1/

Business and Professions Code section 6106, 6151, and 6152.

Business and Professions Code sections 6157 through 6159.2.

STATEMENT OF FACTS

Attorney has a personal profile page on a social media website. Attorney regularly posts comments about both her

personal life and professional practice on her personal profile page. Only individuals whom the Attorney has

approved to view her personal page may view this content (in Facebook parlance, whom she has “friended”).2/

Attorney has about 500 approved contacts or “friends,” who are a mix of personal and professional acquaintances,

including some persons whom Attorney does not even know.

In the past month, Attorney has posted the following remarks on her profile page:

· “Case finally over. Unanimous verdict! Celebrating tonight.”

· “Another great victory in court today! My client is delighted. Who wants to be next?”

· “Won a million dollar verdict. Tell your friends and check out my website.”

· “Won another personal injury case. Call me for a free consultation.”

· “Just published an article on wage and hour breaks. Let me know if you would like a copy.”

1/ Unless otherwise noted, all rule references are to the Rules of Professional Conduct of the State Bar of

California. 2/

References to Facebook and “friending” should not be construed as limiting this opinion to that particular social

media website. For example, Attorney could post the same language on Twitter, which would be viewed by all of

her followers. Guidance to attorneys in this area has not kept pace with all forms of social media usage. Rather than

discussing each form of social media, which forms likely will change over time, this opinion sets forth the general

analysis that an attorney should undertake when considering use of any particular form of social media.

dpalmer

Typewritten Text

13

DISCUSSION

Although attorneys are permitted to advertise, any such advertisements must comply with a number of restrictions in both the Rules of Professional Conduct and the Business and Professions Code.

2

3/ For example, Business and Professions Code section 6157.1 prohibits any “false, misleading or deceptive statement” in an advertisement, while

section 6157.2 prohibits including in an advertisement any “guarantee or warranty regarding the outcome of a legal

matter.” Bus. & Prof. Code, §§ 6157.1 and 6157.2; see also rule 1-400, Std. 1.4/

Rule 1-400 provides even more

detailed requirements with which attorney advertising must comply. Specifically, rule 1-400(D) provides rules that

must be followed to ensure that a communication is not false or misleading, or made in a coercive manner. Rule

1-400 also provides sixteen enumerated “Standards”5/

listing examples of communications which are presumed to be

in violation of rule 1-400.

In the above hypothetical, Attorney must determine whether her postings constitute advertisements that must comply

with these various advertising rules.6/

Rule 1-400, however, speaks in terms of “communications” rather than

“advertisements.” Thus, it is important to look at how both terms are defined.

Business and Professions Code section 6157(c) defines “advertise” or “advertisement” as:

[A]ny communication, disseminated by television or radio, by any print medium, including, but

not limited to, newspapers and billboards, or by means of a mailing directed generally to members

of the public and not to a specific person, that solicits employment of legal services provided by a

member, and is directed to the general public and is paid for by, or on the behalf of, an attorney.

Bus. & Prof. Code, § 6157(c) (emphasis added). Although section 6157(c) does not refer to computer-based

communications like Facebook or Twitter postings, there is little doubt that the restrictions of sections 6157.1 and

6157.2 indeed apply to computer-based communications. See, e.g., Bus. & Prof. Code, §§ 6158 (referring to

“advertising by electronic media” in the context of Sections 6157.1 and 6157.2); 6157(d) (defining “electronic

medium” as including “computer networks”). What may be less clear is whether a posting on Facebook or Twitter,

like that described in the hypothetical, is considered “directed generally to members of the public and not to a

specific person,” as required under section 6157(c)’s definition of an advertisement. This opinion does not take a

position on this point because, whether or not the hypothetical posting constitutes an “advertisement” as defined in

section 6157(c), it nonetheless will be subject to the same requirements as any other advertisement by virtue of

rule 1-400 – provided it is a “communication,” as specified in section 6157(c) and rule 1-400(A).7/

3/ This Formal Opinion interprets such rules and statutes under a number of factual scenarios. Questions of legal

constitutionality of those rules or statutes (even as applied) are outside of the scope of this Formal Opinion. 4/

Unless otherwise noted, all rule references are to the Rules of Professional Conduct of the State Bar of

California. 5/

The Standards actually go through No. 16, but Standard 11 has been repealed, thereby leaving 15. 6/

In California State Bar Formal Opinion No. 2001-155, this Committee concluded that a law firm website is

subject to professional responsibility standards governing attorney advertising. The website considered was a

commercial website that included, among other promotional content: a description of the law firm and its history

and practice; and the education, professional experience, and activities of the firm’s attorneys. Specifically, this

Committee found that a commercial law firm website is governed by rule 1-400 because the website’s content

concerns a lawyer’s availability for professional employment. This Committee similarly found that such websites

are subject to the State Bar Act provisions governing electronic media advertising in Article 9 of the Business and

Professions Code. 7/

Each of the restrictions and requirements included in Business and Professions Code sections 6157.1 and

6157.2 can be found – in a substantially similar form – in rule 1-400. For example, section 6157 prohibits false or

deceptive statements; this same concept is captured, among other places, in rule 1-400(D). Section 6157.2 (a)

through (c) prohibits guarantees and misleading testimonials; these concepts are captured in rule 1-400, Standards 1,

2, and 13. Section 6157(d) requires disclosure about whether the client will be responsible for certain costs; this

concept is captured in rule 1-400, Standard 14.

Rule 1-400, which is entitled “Advertising and Solicitation,” applies to any “communication,” without concerning

itself with whether such communication also constitutes an “advertisement.” Indeed, rule 1-400(A) provides four

non-exclusive examples of “communications” subject to the rule, only one of which is based on the communication

being an “advertisement . . . directed to the general public or any substantial portion thereof.” Rule 1-400(A)(3).

Thus, in our hypothetical, Attorney primarily must determine whether any of her postings constitute

“communications” under rule 1-400(A). If they do, then those postings that constitute “communications” must

comply with several significant requirements imposed elsewhere in rule 1-400 and the accompanying standards.

Communications under Rule 1-400

3

Rule 1-400(A) defines “communications” for purposes of that rule as: “any message or offer made by or on behalf

of a member concerning the availability for professional employment of a member or a law firm directed to any

former, present, or prospective client…” (emphasis added). Rule 1-400(A) then goes on to provide non-exclusive

examples of types of messages or offers that are covered by the rule, provided that they are “concerning the

availability for professional employment.” This includes, without limitation:

(1) Any use of firm name, trade name, fictitious name, or other professional designation of such

member or law firm; or (2) Any stationery, letterhead, business card, sign, brochure, or other

comparable written material describing such member, law firm, or lawyers; or (3) Any

advertisement (regardless of medium) of such member or law firm directed to the general public

or any substantial portion thereof; or (4) Any unsolicited correspondence from a member or law

firm directed to any person or entity.

Rule 1-400 does not expressly refer to electronic communications, like those occurring on Facebook, Twitter, or

other internet-based social media websites. Nonetheless, just as there is little doubt that a Facebook or Twitter

posting that otherwise meets the definition of “advertising” in Business and Professions Code section 6157(c) would

be considered an advertisement, there is little doubt that a social media posting that otherwise meets the criteria

described in rule 1-400(A) would be a communication for purposes of that rule. Thus, the pertinent question for

determining whether a posting constitutes a “communication” under rule 1-400(A) is whether it “concern[s] the

availability for professional employment” of Attorney.8/

If a posting is found to be a communication subject to rule 1-400, the result is that the posting must comply with the

mandates of Rule 1-400(D); it also should avoid falling within one of the sixteen enumerated types of

communications presumed to be in violation of rule 1-400, as set forth in the Standards. Rule 1-400(D) generally

provides that a communication must not be untrue or misleading (rule 1-400(D)(1), (2) & (3)), must disclose that it

is a communication (rule 1-400(D)(4)), and must not be transmitted in a coercive or intrusive manner (rule 1-

400(D)(5)).9/

As discussed above, the sixteen Standards provide various types of communications (such as, for

8/ This opinion does not address whether the initial “friend” or “connection” request, if motivated primarily by

business development purposes, can itself constitute a communication subject to rule 1-400. 9/

Specifically, rule 1-400(D) provides, in pertinent part:

(D) A communication or a solicitation (as defined herein) shall not:

(1) Contain any untrue statement; or

(2) Contain any matter, or present or arrange any matter in a manner or format which is false, deceptive, or

which tends to confuse, deceive, or mislead the public; or

(3) Omit to state any fact necessary to make the statements made, in the light of circumstances under

which they are made, not misleading to the public; or

(4) Fail to indicate clearly, expressly, or by context, that it is a communication or solicitation, as the case

may be; or

(5) Be transmitted in any manner which involves intrusion, coercion, duress, compulsion, intimidation,

threats, or vexatious or harassing conduct.

. . .

example, communications using font size smaller than 12 point, Std. 5, or testimonials or guarantees of results without appropriate disclaimers, Stds. 1 & 2), which are presumed to be in violation of rule 1-400.

In our scenario, Attorney posts two types of professional information: (1) general legal information, such as recommendations of good articles; and (2) information about her legal practice, such as complaints she has filed and victories in court. With respect to the first type of information (e.g., Example Number 5, below), we conclude that this does not constitute information concerning availability for employment. When Attorney posts information about her practice, however, rule 1-400 may apply.

Specific Examples

4

Consider the following examples10/ of Attorney’s use of personal social media sites for status postings which are

visible to all of her “friends,” “connections,” or “followers” (although not to the public at large):

Example Number 1: “Case finally over. Unanimous verdict! Celebrating tonight.”

In the Committee’s opinion, this statement, standing alone, is not a communication under rule 1-400(a) because it is

not a message or offer “concerning the availability for professional employment,” whatever Attorney’s subjective

motive for sending it.11/

Attorney status postings that simply announce recent victories without an accompanying

offer about the availability for professional employment generally will not qualify as a communication.

Example Number 2: “Another great victory in court today! My client is delighted. Who wants to be next?”

Similarly, the statement “Another great victory in court today!” standing alone is not a communication under rule

1-400(a) because it is not a message or offer “concerning the availability for professional employment.” However,

the addition of the text, “[w]ho wants to be next?” meets the definition of a “communication” because it suggests

availability for professional employment. Thus, it is subject to rule 1-400(D) and rule 1-400’s Standards.

Having concluded this status posting is a communication, the post violates the prohibition on client testimonials. An

attorney cannot disseminate “communications” that contain testimonials about or endorsements of a member unless

the communication also contains an express disclaimer. See Rules Prof. Conduct, rule 1-400(E), Std. 2; see also Belli v. State Bar (1974) 10 Cal.3d 824 [112 Cal.Rptr. 527] (holding that suggesting clients are “dazzled by the

services they have received from the attorney” is prohibited, and consequently an attorney “cannot advertise that he

has performed his services so well that his clients consequently praise him”). Attorney has not included a

disclaimer, so her status posting is presumed to violate rule 1-400.

Similarly, the post may be presumed to violate rule 1-400 because it includes “guarantees, warranties, or predictions

regarding the result of the representation.” See Rules Prof. Conduct, rule 1-400(E), Std. 1. The post expressly

relates to a “victory,” and could be interpreted as asking who wants to be the next victorious client.

The Committee further concludes that “Who wants to be next?” when viewed in context, seeks professional

employment for pecuniary gain. Accordingly, Attorney’s post runs afoul of rule 1-400(E), Std. 5, because it does

not bear the word “Advertisement,” “Newsletter,” or words to that effect.12/

Attorneys may argue that including this

10/ To the extent a status posting invites further discussions between the poster and the reader, this opinion does not

address whether those further discussions themselves may constitute communications subject to rule 1-400. 11/

If, in fact, the statement is not true, then Attorney may be violating other rules not addressed in this opinion –

for example, Business and Professions Code section 6106. 12/

Rule 1-400, Standard 5 states that the word “Advertisement,” “Newsletter,” or similar words appear in

“12-point print on the first page.” The Committee recognizes that certain social media postings may not allow for

the user to choose the font size of postings, and thus technical compliance with Standard 5 may be impossible. It

may be that the State Bar needs to review such standards to bring them current in the face of the prevalence of

electronic communications. Until any changes are made to this language, however, the Committee cannot express

an opinion to the effect that the use of font size of less than 12-point is acceptable.

wording for each “communication” posting would be overly burdensome, and destroy the conversational and

impromptu nature of a social media status posting. The Committee is of the view, however, that an attorney has an

obligation to advertise in a manner that complies with applicable ethical rules. If compliance makes the

advertisement seem awkward, the solution is to change the form of advertisement so that compliance is possible.

5

13/

Finally, the Committee notes that a true and correct copy of any “communication” must be retained by Attorney for

two years. Rule 1-400(F) expressly extends this requirement to communications made by “electronic media.” If

Attorney discovers that a social media website does not archive postings automatically, then Attorney will need to

employ a manual method of preservation, such as printing or saving a copy of the screen.

Example Number 3: “Won a million dollar verdict. Tell your friends to check out my website.”

In the Committee’s opinion, this language also qualifies as a “communication” because the words “tell your friends

to check out my website,” in this context, convey a message or offer “concerning the availability for professional

employment.” It appears that Attorney is asking the reader to tell others to look at her website so that they may

consider hiring her. This language therefore is subject to the adverse presumption in rule 1-400(E), Standard 5 (e.g., it must contain the word “Advertisement” or a similar word) and the preservation requirement in rule 1-400(F).

14/

Example Number 4: “Won another personal injury case. Call me for a free consultation.”

Again, the Committee concludes that this posting is a “communication” under rule 1-400(A), due primarily to the

second sentence.

A communication has to include an offer about availability for professional employment so the “free” consultation

language at first might indicate the posting is not a communication. Yet the rule does not limit “communications” to

messages seeking financial compensation for services. To the contrary, a communication includes any “message or

offer made by or on behalf of a member concerning the availability for professional employment of a member or a

law firm.” See Rules Prof. Conduct, rule 1-400(A).15

Given that the rule does not require that all communications

are for pecuniary gain, we conclude that an offer to perform a professional service for free can constitute a

communication. An offer of a free consultation is a step toward securing potential employment, and the offer of a

13/ For example, Facebook offers businesses the opportunity of creating a “Fan Page,” on which statements of

“Advertisement” or “Newsletter” might be considered less awkward, provided that the “Fan Page” complies with

Business and Professions Code sections 6157 and 6158. 14/

The posting in this example is distinct from running and capping as described in the California Business and

Professions Code. A “runner” or “capper” is defined in California Business and Professions Code section 6151 as

“any person, firm, association or corporation acting for consideration” as an agent for a lawyer or law firm, in

soliciting business. In contrast to prohibited running and capping activities identified in Business and Professions

Code section 6152, Attorney’s posting does not establish or seek to establish an agency relationship for profit with

anyone who views her postings, nor does it imply that Attorney is seeking to do so. Nonetheless, because it is a

communication subject to rule 1-400, Attorney must comply with rule 1-400(D) and the Standards set forth in rule

1-400. 15/

In contrast, solicitations – an express subset of communications subject to further restrictions – are defined to be

communications “[c]oncerning the availability for professional employment of a member or law firm in which a

significant motive is pecuniary gain,” and which “is delivered in person or by telephone, or directed by any means to

a person known to the sender to be represented by counsel in a matter which is a subject of the communication.”

Rule 1-400(B). Because Attorney is not reaching out in person or on the telephone, her postings cannot be

solicitations, regardless of whether she seeks pecuniary gain. See Cal. State Bar Formal Opn. 2001-155 (describing

the “delivered in person or by telephone” requirement for a solicitation as very specific and thus intended as an easy-

to-understand “bright line” test); see also Cal. State Bar Formal Opn. 2004-166 (lawyer’s communication with a

prospective fee-paying client in an internet chat room for victims of mass disaster not a prohibited solicitation, but

an improper communication, because it is delivered to a prospective client whom the attorney knows may not have

the requisite emotional or mental state to make a reasonable judgment about retaining counsel).

free consultation indicates that the lawyer is available to be hired. On balance, this example in the Committee’s

opinion constitutes a “communication.”

Example Number 5: “Just published an article on wage and hour breaks. Let me know if you would like a

copy.”

In this instance, we believe the statement does not concern “availability for professional employment.” The attorney

is merely relaying information regarding an article that she has published, and is offering to provide copies. See Belli v. State Bar, supra, 10 Cal.3d 824, 839 [112 Cal.Rptr. 527] (holding that “[e]xposition of an attorney’s

accomplishments in an effort to interest persons” in an event involving an attorney did not violate restrictions on

attorney advertising); see also Los Angeles County Bar Assn. Formal Opn. 494 (“Communications or solicitations

solely relating to the availability of seminars or educational programs, or the mailing of bulletins or briefs where

there is no solicitation of business, are also constitutionally protected under the State Constitution and First

Amendment as noncommercial speech.”). Accordingly, this posting does not fall under rule 1-400, and need not

comply with any of the Standards of rule 1-400(E).

6

CONCLUSION

Attorney may post information about her practice on Facebook, Twitter, or other social media websites, but those

postings may be subject to compliance with rule 1-400 if their content can be considered to be “concerning the

availability for professional employment.” Such communications also may be subject to the relevant sections of

California Business and Professions Code sections 6157 et seq.

This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of the State Bar of

California. It is advisory only. It is not binding upon the courts, the State Bar of California, its Board of Trustees,

any persons, or tribunals charged with regulatory responsibilities, or any member of the State Bar.

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