E-Discovery and Social Media: Social Media and Legal Ethics Prof. Jonathan I. Ezor Touro Law Center Theodore Roosevelt Inn of Court CLE Presentation Nassau County Bar Association November 3, 2011

Electronic Communications Crucial for All Businesspeople Multiple channels of electronic business communication – –Text messages –Web sites –Videoconferencing –Social media –Others Can be one-way, two-way or multipoint

Common Challenges of Electronic Business Communication Addressing and attachment errors Lack of nuance & tone Heightened expectations of responsiveness Informality Compliance Management

Attorneys’ Ethical Obligations Add to Challenges Rules of Professional Conduct impact on attorney communication Lawyers must ensure compliance with those as well as with good business practices Confidentiality biggest potential breach

“Adopting” A Listing Ok, but beware of issues like those discussed in SC Ethics Advisory Op –The lawyer must monitor the “claimed” listing to make sure all comments are in conformity with the ethical rules, especially the rules for attorney advertising writing of things like testimonials and client endorsements that create unjustified expectations, and comparisons Be careful when linking to another site!

Recommendations LinkedIn allows parties to “recommend” the work of a another participant. Issues? What about asking a client to recommend your work?

Recommendations Be mindful of rules that place limitations on the use and content of testimonials Model Rule 4.1 (duty of candor) prohibits the making of a false statement of material fact to a third person –Beware of possible exaggerations regarding your biography, experience, etc. What about asking a Judge to recommend you? What about announcing on Facebook or LinkedIn that you just won a big jury trial or negotiated a big deal?

Recommendations Depending on the rules in your jurisdiction, this could require you to add a disclaimer along the lines of “results will vary in each case” or similar language A related issue, depending on the content of your blogs or tweets –Could they be governed by your state’s restrictions on lawyer advertising? –If so, what are your obligations?

Recommendations Texas: must file video postings seeking clients with the Advertising Review Committee Connecticut: sending LinkedIn invitation that links to page describing law practice is an advertisement subject to all relevant rules LinkedIn allows users to provide professional information under “specialties.” Are there any issues with that?

Recommendations Depending on the content, it could run afoul of bar rules, such as Illinois Rule 7.4(c) and NY Rule 7.4(a), that prohibit attorneys from claiming they are “specialists” in a certain field Any other risks in posting information about your matters?

Lying To A Tribunal Model Rule 3.3 prohibits attorneys from making a false statement of fact to a tribunal New connections via social media provide “channels” for discovery of such statements

Investigative Issues How is it being used? –Employment background check? –Information about opposing counsel? Judge? –Information about parties? Witnesses? Jurors? Front page article in The Washington Post (May 29, 2010) about the increasing use of subpoenas to obtain information from social networking sites

Friending Issues In most jurisdictions, a judge and attorney who appears before the judge can be “friends”; e.g. New York:

Other States’ Ethics Opinions on Friending Permissible: –SC Op (2009) –Ky. Op. JE-119 (2010) –Ohio Op (Dec. 3, 2010) But NOT in Florida, Op (2009) –A judge cannot lend the prestige of her office to advance the private interests of others or convey an impression that some are in a special position of influence

Friending Issues Other friending issues with judges? –In re Public Reprimand of Terry, Inquiry No (Apr. 1, 2009) –N.C. child custody and support case Judge friended defense counsel and saw information posted by the defense counsel about the case –Asking how he could prove the negative that his client did not have an affair –Noting that he had a wise judge (to which the judge responded that he had two very good parents to choose from) –Asking how long the trial would last

Friending Issues Other issues with respect to whom an attorney can friend? –Opposing counsel? –Parties to a dispute in which you are counsel? –Witnesses in an active case

“Fake” User Profiles An attorney was reprimanded because he hid his real identity and posed as a teacher and posted on classmates.com that another teacher had engaged in sex with students – In re Carpenter, 95 P.3d 203 (Or. 2004) Fake patient profiles in the healthcare space

Blogging And Other Interactive Media LinkedIn allows users to post and answer questions; bloggers and tweeters often address legal issues; and sites like “Counsel.net” and Quora allow users to seek answers to legal questions This is a particularly risky area. Any issues?

Conflicts Of Interest With whom are you communicating? –What if it is with a party with an adverse interest to a client of the firm? (Model Rules 1.7, 4.2) Other issues?

Inadvertent Creation Of An Attorney-Client Relationship The discussion could lead to a situation where a “prospective” client relationship is formed, which has several consequences Must keep that information confidential (Model Rule 1.18) Obtaining this confidential information could lead to disqualification with respect to existing clients who would have an interest in knowing that information

Inadvertent Creation Of An Attorney-Client Relationship An organization needs a well-considered policy to address these issues, including: –Use a disclaimer (“general informational purposes”), but how do you do that with Tweets? –Do not post confidential information –Restrict recipients, followers, etc. Very little risk with passive review, but the more interactive, the more dangerous –Contact with represented party –Do not discuss subject matter of your cases!

Inadvertent Creation Of An Attorney-Client Relationship Depending on the circumstances, this could run afoul of rules prohibiting the unlicensed practice of law – or it could inadvertently create an attorney-client relationship An organization needs a good policy to address these issues – things to consider –Keep it general –Restrict recipients –Use a disclaimer (“general informational purposes”) –Do not post confidential information

Lawyers (and Law Students) Tweeting Badly

Remember: How and Why Not Twitter is public; remember that all, not just followers, may see/search your tweets Jurors, clients, judges and colleagues can/will follow you Many horror stories of accidental disclosures, embarrassments; can impact on career and reputation Be a good example

Key Question is Why? Media sees Twitter as celebrity hangout, text message alternative (“Having eggs for breakfast”) True but only one side of story “Other” Twitter is tremendous business/knowledge resource Blogs are great model: links, opinions and discussions Ideal is to provide as well as receive value

Conclusion Beware of advertising issues Be careful with judicial relationships Avoid deception and act transparently Keep confidences confidential Establish and follow a policy for interactive contact

Knowledge, Policies and Procedures Must Work Together To Minimize Risks Adequate funding of IT staff, including training Make sure attorneys and support staff given proper education Set up systems with legal practice concerns in mind Keep up with legal trade press, ethics opinions

QUESTIONS?