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A comprehensive guide to navigating social media ethically in the legal profession, covering topics such as jurisdiction, client information confidentiality, communication with represented individuals, and more.

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  1. The 12 Commandments of Social Media for Legal Professionals April 17, 2014 Brian S. Faughnan 901•577•6139 bfaughnan@lewisthomason.com www.faughnanonethics.com WWW.LEWISTHOMASON.COM KNOXVILLE | MEMPHIS | NASHVILLE

  2. Today’s agenda • Guidelines – broad strokes • Social media for investigations • Social media for advertising • Day-to-day social media too • Primarily, a synthesis of the best of the many ethics opinions www.faughnanonethics.com

  3. What makes a “good” ethics opinion? • In this area, needs to be premised on 2 key virtues • Recognition that social media is just another form of communication • Recognition that RPC 1.1 (Competence) requires lawyers today (at least litigators) to know how social media works www.faughnanonethics.com

  4. “12 Commandments” • Catchy? Sure. • Plus, given my Hamilton obsession, provided another excuse for the “10 Duel Commandments” song to run through my head while preparing these slides. • Also, like the more famous ones you may have heard of, the first is probably the most important www.faughnanonethics.com

  5. 1. KNOW YOUR JURISDICTION • By implication, saying I want to pull from the “good” ones, should tell you there are others • Actually a multitude of ethics opinions out there: • ABA Formal Op. 466 (2014) • Colorado Formal Op. 127 (Sep. 2015) • N.H. Advisory Op. 2012-13/05 • NYC Bar Formal Op. 2012-2 • NYC Bar Formal Op. 2010-02 • Oregon Formal Op. 2013-189 www.faughnanonethics.com

  6. 1. KNOW YOUR JURISDICTION • Actually a multitude of ethics opinions out there: • Pennsylvania Bar Formal Op. 2014-300 • San Diego County Bar 2011-2 • West Va. LEO 2015-02 • And “know your jurisdiction” includes the jurisdiction in which you might be reaching out toward in any communications. • That’s because of ABA Model Rule 8.5 www.faughnanonethics.com

  7. 2. KNOW HOW IT WORKS • “It” being the social media you are using • Not only because of the issue with the Model Rule 1.1 duty of competence • But also because a lot of the ethical issues that arise from its use can turn on specifics of how the platform works • Not all social media works the same way and the differences can be important www.faughnanonethics.com

  8. 3. must NOT REVEAL CLIENT INFORMATION • Lawyers do not uniformly understand Model Rule 1.6 but its scope means that lawyers shouldn’t talk about what they do in particular matters on social media • Rule 1.6(a) protects all “information relating to the representation of a client” – Cmt. [3] – “not only … matters communicated in confidence by the client” • Exceptions if client gives informed consent, disclosure is “impliedly authorized in order to carry out the representation” or if (b) permits www.faughnanonethics.com

  9. 3. Client information • Rule 1.6(b) (1-4) aren’t going to provide a need for you to go on social media to discuss • Nor for that matter will Rule 1.6(b)(6) or (7) • That leaves 1.6(b)(5) – the “self-defense” exception but social media posts aren’t “proceedings” and also not the kind of venue that would involve a “controversy” • Biggest issue can be not thinking through how casual posts might reveal Rule 1.6 information www.faughnanonethics.com

  10. 3. Client information • Lawyers and clients (former clients) can be friends in real life, so … • Must remain aware of Rule 1.9 (as well as 1.6) restrictions on disclosure of information about representation • Must remain aware that, depending on the platform, others can see what is said • N.B. - if going to use to communicate about matter with current client – need to make sure it gets into the file… www.faughnanonethics.com

  11. 4. must not counselclients to delete • Clients have the right to know their legal rights … • Can counsel clients about changing their privacy settings or taking a break from social media altogether • Cannot tell clients to destroy, alter, or conceal relevant content that already exists on their social media – Rule 3.4 • Rule 1.2(d) & Cmts. [9]-[10] is the rule best addressing this balancing act www.faughnanonethics.com

  12. 5. SHALL NOT COMMUNICATE W/ Represented people • Rule 4.2 applies to communications of all types • If “know” they are represented in a matter, and the communication is about the matter, then can’t do it without the consent of that person’s lawyer • The initial request is a communication • Doesn’t matter if they initiate the communication… www.faughnanonethics.com

  13. 5. SHALL NOT COMMUNICATE W/ Represented people • Sure it is a communication, but is it about the “matter”? • Unlike Seinfeld not likely to agree that it’s about “nothing” • Strongest rationale – repeated in a number of opinions • If the reason for the request/communication is to glean information about the “matter” then we treat the communication as being about the “matter” www.faughnanonethics.com

  14. 6. Shall not deceive unrepresented people • Cannot state or imply that the lawyer is “disinterested,” if know they misunderstand have to make a reasonable effort to correct the misunderstanding (Rule 4.3) • Cannot give legal advice other than the advice to secure counsel (Rule 4.3) • Rules 4.1 and 8.4 combine to mean – can’t use pretext/deception to get people to disclose information they wouldn’t otherwise share • Opinions differ on whether a “vanilla” friend request is okay or not … www.faughnanonethics.com

  15. 7. Must remember: jurors may be different • Passively viewable public information should be perfectly safe • Cannot have things out there that are passively viewable by the public at large and cry foul when a lawyer accesses them • Same concept is at play within the context of a particular social media service • One logical reason why (at the beginning) we talked about how lawyers can advise clients about how to use privacy settings… • Same concept should apply to friend, foe, lawyer, judge, or witness • But jurors… www.faughnanonethics.com

  16. 7. jurors… tread lightly • On jurors – Colorado opinion says since viewing is not “communication” should be ok • ABA Opinion agrees; two opinions out of NY say it depends on whether the juror will be made aware of the viewing or not • So, a quick reminder about knowing how the platform you are using works • Model Rule 4.4 • Recent case garnered publicity over court order about investigating jurors… www.faughnanonethics.com

  17. 8. Shall not judge lestyou be judged • Judges are human beings; human beings have friends; therefore, _____ have friends • Should be perfectly ok to “connect” with judges online as long as the reason for the contact is not to influence the performance of official duties • Rule 3.5 prohibits ex parte communications during a proceeding and seeking to influence judges in ways prohibited by law • Those “connected” to judges though ought to be wary about what they say online www.faughnanonethics.com

  18. 8. Judge not? • Rule 3.6 (trial publicity) • Rule 8.2 (statements about judicial officials) • One additional caveat to the general rule: • Depending on the jurisdiction, “connecting” could be unethical for the judge • If so, lawyer could have a Rule 8.4(f) problem on their hands www.faughnanonethics.com

  19. 9. Shall be mindful of evidentiary issues • A multitude of ways information ethically obtained/gathered can be used in a case • Two examples: (1) party opponent admissions; (2) leads to other discoverable information • Can even be a violation of a lawyer’s duties to a client to fail to use such information… • Evidentiary issues like authentication and hearsay must be kept in mind though… • Particularly to try to keep from turning lawyers into witnesses in the case, Rule 3.7 conflicts www.faughnanonethics.com

  20. 10. Shall not bear false witness • Maybe it is an ad, maybe it isn’t but regardless it can’t be “false or misleading” (Rule 7.1 applies to more than advertisements) • Rule 8.4(c) also broadly prohibits misrepresentations even beyond what Rule 7.1 addresses • Applicable to endorsements and other issues www.faughnanonethics.com

  21. 11. SHALL MONITOR that which you CONTROL • Rule 7.1 – applies to any statements by the lawyer about the lawyer or about the lawyer’s own services • A danger spot turns on whether something that a client posts online about the lawyer as a review or endorsement will get treated as lawyer’s own communication • Lawyers need to try to monitor the things that do get posted – over which they can control – for accuracy www.faughnanonethics.com

  22. 12. Shall not use another as a workaround • Rule 8.4(a) – can’t use the acts of another as a way of circumventing the rules • Rule 5.3(c) – provides for a lawyer to be responsible for assistant’s violations • (1) if lawyer “orders” it to bedoneor “with knowledge of the specific conduct, ratifies the conduct” • (2) if “fails to take reasonable remedial action” at a time when “knows” of your conduct and “consequences can be avoided or mitigated” www.faughnanonethics.com

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