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NAHO 2013 Conference St. Paul, Minnesota. Acknowledgements Many thanks to Eve Moran for drafting the four skits used in this presentation, and for providing.

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Presentation on theme: "NAHO 2013 Conference St. Paul, Minnesota. Acknowledgements Many thanks to Eve Moran for drafting the four skits used in this presentation, and for providing."— Presentation transcript:

1 NAHO 2013 Conference St. Paul, Minnesota

2 Acknowledgements 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.

3 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

4 Social Media Sites 1 Top 5 social media sites: Source : (October, 2012) 1. Facebook [750,000,000 estimated unique monthly visitors] 2. Twitter [250,000,000 estimated unique monthly visitors] 3. Linkedin [110,000,000 estimated unique monthly visitors]

5 Social Media Sites 2 4. MySpace [70,500,000 estimated unique monthly visitors] 5. Google Plus+ [65,000,000 estimated unique monthly visitors] Source: (October, 2012)

6 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:

7 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 Source:

8 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 Source:

9 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:

10 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 Apps High growth in US and European markets Source:

11 Facebook 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: _November/Social_media_for_employers_and_lawyers_who_advise_employer s/

12 Blogs 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?

13 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. 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, 298

14 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).

15 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 lighter.” Source: See Renee Loth, Mistrial by Google, Boston Globe, Nov. 6, 2009, at A15, available at opinion/oped/articles/2009/11/06/mistrial_by_google

16 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.

17 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

18 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:

19 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).

20 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. 907 N.Y.S.2d 650 (N.Y. Sup. Ct. 2010) 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 action.” 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

21 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

22 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 Procedure? Source:; Source: Kelly Balfour Social Media and Ethics CLE power point presentation (September 11, 2012, NAALJ conference, New Orleans, Louisiana)

23 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).Rimkus Consult. Grp. v. Cammarata, 688 F.Supp.2d 598, 612 (S.D.Tex.2010)

24 Skit Titles Yes, I will Friend You (Exploring ex parte contacts and other questions of propriety when decision makers and lawyers use social media) Check My Blog (The intersection of personal and professional social media) Who is Texting Now (Lawyer’s supervision of non Lawyer staff)

25 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 Stanley. 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 witness.

26 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, 2009, acebook_activity.

27 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;.

28 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.

29 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

30 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)).”

31 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) 2012/09-05- 12/4D12-556.op.pdf 2012/09-05- 12/4D12-556.op.pdf

32 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 independently- gathered 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).

33 Ethics Issues with Judge Terry 2 1. Illinois Rule of Professional Conduct: 3.5 (b) states that... 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.

34 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 communications. 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 evidence. Indeed, it is fundamental that every decision or order be based on the record and only the record.

35 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.

36 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

37 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)

38 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,

39 Social media connections 5 TIPS An attorney, a judge or a decision-maker is not relieved of ethical responsibilities when engaging in social media. Be on guard when communications stray into pending case matters. You do not want to engage in ex parte communications Attorneys and judges and state agency employees are all well-advised to proceed with caution if they are “friends” on social networking sites.

40 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.

41 Rules in focus for Skit Number 2 IRPC - 1.1 (Competence) IRPC - 1.6 (Client Confidentiality) IRPC - 3.5 (Impartiality and Decorum of the Tribunal) IRPC - 8.4 (Misconduct) (Rules provisions at the end of the slides)

42 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- protected.

43 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 stuff. 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.

44 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.

45 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 Capital- Journal 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 story.Associated PressTopeka Capital- JournalWNDAP 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 “self- satisfied.” CONTINUED ON NEXT SLIDE _tweeting_during_ethics_hearing_of_naught/?utm_source=maestro&utm_me dium=email&utm_campaign=weekly_email

46 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.heard the ethics case _tweeting_during_ethics_hearing_of_naught/?utm_source=maestro&utm_me dium=email&utm_campaign=weekly_email

47 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.”Rule 7.1 of 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.

48 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)

49 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

50 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.allegedly revealed confidential client information Source: al_media_is_obvious_dangerous

51 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: verResources/CMSResources/Opinion_2009-2.pdf

52 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)

53 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)

54 Helpful Guidelines 3 Helpful Guidelines-Facebook, LinkedIn Maintain two different Facebook pages-one person and one professional 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, 2012). y_february/social-media-networking-for-lawyers.html

55 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 ad; 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), lawyers/. lawyers/

56 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. 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 rules. 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), lawyers/ lawyers/

57 Tips for Attorneys 3 Designation as a specialist or expert on LinkedIn. 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), lawyers/. lawyers/

58 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), / /

59 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), lawyers/. lawyers/

60 Tips for Attorneys 6 TIPS: 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 cool- headed fashion. This will not only keep the lawyer free of ethics violation - but also prove more persuasive to the reader.

61 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.

62 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.

63 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).

64 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). SResources/Opinion_2009-2.pdf SResources/Opinion_2009-2.pdf 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.

65 Ethical Issues for Lawyers 4 TIPS 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 information). 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.

66 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)

67 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)

68 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)

69 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 556

70 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: media-and-law-summer-2012/subpoena-has-everyone-twitt

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