Navigating Social Media: What Lawyers Need to Know to Avoid Ethical Pitfalls?

Navigating Social Media: What
Lawyers Need to Know to Avoid
Ethical Pitfalls?
December 5, 2013
Presented by:
Marjorie N. Kaye, Jr. Esq.
Candice B. Cohen, Esq.
http://delvacca.acc.com
Lawyers & Social Media
Increasing Number of Lawyers using Social Media
o Over Half in Private Practice have Online Presence
o Examples
• Facebook
• LinkedIn
• Blogs
Social Media Uses for Lawyers
o Marketing
o Research
o Communication
Lawyers & Technology
Working remotely while out of the office
Use of smartphones to perform job
Use of Wi-Fi to access & transmit client data
Use of “cloud” computing & “software as service”
(SasS) (e.g., document and time management
programs)
• Hardware/software resources
• Delivered over a network (usually the Internet)
• Information stored on third-party server, rather than the hard-
drive
Jack Lewis, Esq.:Tech-Savvy Lawyer
• Has His Face in the ‘Book’
JACK
• Is LinkedIn with Everyone He Knows
• Blogs Like a Pro
• “Friends” with all the Judges
• Communicates with Clients 24/7 from his Smartphone
• In Every Legal Directory on the Web
• Can Try a Case from his Tablet
• Is a Real “Tweet”heart
What Ethical Rules Apply to a Lawyer?
• Pennsylvania Rules of Professional Conduct
• ABA Model Rules of Professional Conduct
• ABA Commission on Ethics 20/20, appointed to study effects of
technology on legal ethics
• 20/20 Commission’s suggested revisions to ABA’s Rules
• Pennsylvania Bar Association’s Ethics Hotline
1-800-932-0311 Ext. 2214
ABA 20/20 Commission Report
• Social Media Complicates Ethics Issues
• Lawyers’ Professional Announcements by Social Media
• Gap between Ethics Rules and Best Practices
• No Determinations
• Seeking Attorney Feedback and Guidance
• Stay Tuned for Further Developments…
20/20 Commission Report, Sept. 20, 2010, p. 2.
Warning - So Many Issues, So Little Time
Ethical Issues to Consider
• 10 Issues Lawyers
Should Consider to
Meet His Ethical
Obligations
• So Should You!
Issue 1
Should Lawyers Use Social
Media to Research Claimants
or Witnesses?
Rules Regarding Online Research of
Claimants/Witnesses
• OKAY to view or download information from passive website
• Company website
• Personal website of an employee/witness/applicant
• NOT OKAY to send messages to a represented party on an
interactive website or chat room
• May not be able to ascertain the identity of the person responding
• May inadvertently communicate with a represented party (which is
prohibited under the Rules)
• OKAY to access the public portions of a social networking site
• Truthful “friending”
• Under the Rules, an attorney cannot ask another to do on his
behalf what he is prohibited from doing
Deceptive “Friending”
• May a lawyer ask a paralegal to “friend” an employee in
order to gain access to information?
• May a lawyer ask another employee who is a “friend” of the
target employee for a password (in order to view
information)?
• May a lawyer read the screen of a “friend” of the target
employee (with the friend’s permission but without the
target employee’s permission)?
• What if the “friend” provides the lawyer with print-outs of
the information (versus viewing it online)?
ANSWER TO ALL: NO!
Example of Facebook
Leading to Sanctions
• Disciplinary proceedings in New Jersey
• New Jersey defense lawyers face ethics charges for
allegedly having made an improper use of Facebook
• In this ethics proceeding, the two defense attorneys
allegedly had their paralegal “friend” a plaintiff in a
personal injury case so they could access information on
his Facebook page that was not otherwise available to
the public
• The defense attorneys were charged with violating Rule
4.2; Rule 5.3(a), (b) and (c), Rule 8.4(c) and (d); and
Rule 5.1(b) and (c).
Issue 2
Does a Lawyer Violate Rules
Regarding Confidentiality by
Using Wi-Fi Connections
Outside Her Office?
The Lawyer Travels for Business, Using 3d
Party Networks to Work from the Road
• Hotels
• Airports, airplanes
• Coffee bars, restaurants
• Other counsels’ offices
Question: Does the use of networks owned and controlled
by third parties (rather than the lawyer or his firm) present
any ethical issues?
Lawyer’s Duty to Safeguard Client
Property
• A lawyer shall hold all client property that is in
his or her possession separate from his or her
own property, and
• All client property held by an attorney shall be
identified as such and appropriately
safeguarded.
Pennsylvania Rules of Professional Conduct
Rule 1.15(a)
Comment to Rule Regarding
Safeguarding Client Property
• Duty arises from fiduciary relationship
• Duty to keep client property separate from lawyer’s
• Duty to maintain complete records
Question: Apply to client information or data?
Answer: Undecided at this time, but likely will be applied if a
lawyer fails to use reasonable care in handling client data and
a data breach occurs.
Comment 8 to Rule 1.14 re: Safeguarding of Client Property
20/20 Commission’s Proposed Revisions to
Rule Regarding Third-Party Property
Rule 4.4 Respect of Rights of Third Persons
“A lawyer who receives a document or electronically
stored information relating to the representation of the
lawyer’s client and knows or reasonably should know that
the document or electronically stored information was
inadvertently sent shall promptly notify the sender.”
Proposed Comment [16] to Model Rule 1.6.
(emphasis added.)
Potential Pitfalls for Ethical Violations
• May be accessible by 3d parties
• 3d parties may be able to intercept data
• 3d parties may share data or respond to subpoena
•
•
•
•
differently than the lawyer or the client would
Some 3d parties are not located in US
3d party may not notify of data share
Inadvertent waiver of attorney/client
privilege if seen by 3d party
Data may be lost or become owned by 3d party
Rules Protect a Lawyer’s Clients’
Confidential Information
Includes information that is
• Privileged
• Not Privileged
All information furnished by client or acquired by lawyer
during the course of client representation
Pennsylvania Rules of Professional Conduct 1.6
Rules Place Duty on a Lawyer to
Protect Confidential Client Data
A lawyer shall not knowingly reveal confidential client information
to:
• anyone client instructs cannot receive information; or
• anyone else, other than the client or the lawyer’s firm.
A lawyer shall not use confidential client information without
consent:
• to the disadvantage of the client; or
• to the advantage of a lawyer/third person.
A lawyer is subject to discipline for using client information in a
manner disadvantageous to the client or beneficial to the lawyer
or a third-party without the client’s consent.
Pennsylvania Rules of Professional Conduct Rule 1.6
20/20 Commission’s Proposals
Requires a Lawyer to:
• Make Reasonable Efforts
• To Prevent Inadvertent or Unauthorized Disclosure
• Of Client Information
Question: What are “reasonable efforts?”
ABA Rule 1.6 (c), comment 16 (emphasis added.)
Factors for determining whether the
Lawyer’s efforts are “reasonable”
• Sensitivity of the information;
• Likelihood of disclosure without additional
safeguards;
• Cost of employing additional safeguards; and
• Difficulty of implementing additional safeguards;
• Extent to which the safeguards will adversely
affect the lawyer’s ability to represent clients (e.g.
making software or device too difficult to use).
Proposed Comment [16] to Model Rule 1.6
So, What Can a Lawyer Do to Protect
Data?
• GPS his computer and cell phone
•
•
•
•
•
(can lead to potential location and retrieval)
Implement secure and strong passwords
Install network safeguards and backups
(to protect from 3d party access)
Purge before destroying or replacing equipment
Make sure his computer & phone are safe when accessing
internet sites and data
Do not send client information over 3d party Wi-Fi or “hot
spots” (use only secure sites)
Guidance from Other States
• 19 States, including FL, CA, NY, PA
• Identify Threats & Implement Data Policies
• Inventory Devices Holding Data
• Password Protect Devices
• Supervise Non-Lawyers & Obtain Assurances
• Sanitize Replaced or Destroyed Devices
Issue 3
What Rules Apply to a
Lawyer’s Communications
with Potential Clients on the
Internet?
Solicitations Rules May Apply,
Even if You are Not “Marketing”
The Rules provide that Lawyers Should Not Use Electronic Contacts
to Seek Employment Concerning a Matter Arising from a Particular
Occurrence or Event:
•
From anyone with whom the lawyer has no contacts or
attorney/client relationship
When significant reason for doing so is pecuniary gain
“Electronic contact” means communication initiated by a lawyer
which will result in a live, interactive communication with any other
person
•
Websites not included
•
“Chat room” discussions are included
•
ABA Model Rules of Professional Conduct 7.3(a), (b).
Would a Lawyer’s Email to a Potential Client
Violate the Bar’s Rules?
Not under the 20/20 Commission’s
Proposed Revisions:
Communications transmitted over email or
electronic means that do not involve realtime contact do not violate this Rule
regarding solicitation.
Proposed Comment [3] to ABA Model Rule
7.3.
Issue 4
Are a Lawyer’s Online
Profiles Subject to the Bar’s
Rules?
Are the Lawyer’s LinkedIn &
Facebook Profiles Advertising?
• Pennsylvania Bar regards LinkedIn
Profiles as advertising
• But the Pennsylvania Bar does NOT
consider LinkedIn and Facebook
Profiles as such.
• Need not be submitted/reviewed
• Not generally used to get clients
• But may be different result if said
“Call me if you’ve been fired”
What if a Lawyer Designates Himself as a
“Specialist” or “Expert” on LinkedIn?
• “Specialties” field in LinkedIn profile
• Rules mandate that only attorneys who
obtain certification from the Pennsylvania
Board of Legal Specialization may
advertise as an “expert” or “specialist” in a
legal field
• Unless he holds an accreditation from the
Board of Legal Certification, the Lawyer
should leave the LinkedIn “specialties”
field blank
LinkedIn Recommendations
• LinkedIn Connections can write Testimonials
• Should Prescreen to Ensure Rule Compliance
• LinkedIn setting
• Allows View of Testimonials Before Available to
Public
• Potential Pitfalls:
• Comparisons to other lawyers’ services ABA Model
Rule 7.1
(e.g., “Best lawyer in Pennsylvania”)
• Listing “specializations” when lawyer is not Board
certified
• Avoid making reciprocal recommendations
• Prohibited by ABA Model Rule 7.2(b)
• Giving anything of value to non-lawyer for soliciting
prospective clients
Issue 5
Do Bar’s Rules Apply to a
Lawyer’s Online Directory
Listings?
Required Record Keeping for Online
Listings
When advertising in the public media (such as telephone
directory, legal directory, online directory, the internet, and
the like), a lawyer must:
• Review all advertising and approve all statements and
listings in writing;
• Keep a copy of each advertising, with a record of when
and where it was used, for four years after the
publication, and
• Display the statements and disclosures required by Rule
7.2.
Pennsylvania Rules of Professional Conduct Rule 7.2(a),
(b), (i).
Issue 6
Should a Lawyer Send
Client Data Via Email or with
His Mobile Phone?
Rules Regarding Email
• Early ethics opinions allowed email only when necessary
and with client’s prior approval.
• More recent opinions say that it is not a rule violation to
use unencrypted email unless unusual circumstances
require enhanced security.
• ABA Formal Ethics Op. No. 99-413 (1999)
(Lawyers do not violate Rules by sending client’s information in
unencrypted email if reasonable precautions are taken to protect
confidentiality).
20/20 Commission’s Proposed
Changes
- Emphasize that the client may require special security
measures not required by Rules or may consent to forego
security measures required by Rules.
- But do not address what additional steps may be required
by federal or state law (such as data security laws and
laws regarding unauthorized access to electronic
information).
Proposed Comment [16] to Model Rule 1.6
Issue 7
Are a Lawyer’s Blog or
Facebook Posts Subject to the
Rules?
All Online Statements Must Be Truthful
Rules apply to all online statements—Profile and
Directory Listings, Blogs, Tweets, etc…
“Whatever means are used to make known a lawyer’s
services, statements about them must be truthful and
nondeceptive.”
“A lawyer shall not make or sponsor a false or misleading
communication about the qualifications or services of any
lawyer or firm.”
Pennsylvania Rules of Professional Conduct Rule 7.1 &
cmts. (1), (2)
A Lawyer’s Statements are False or
Misleading if:
1.
2.
3.
4.
5.
6.
7.
8.
Contain material misrepresentation of fact or law;
Omit necessary fact;
Reference past successes or results;
Likely to create unjustified expectation about
results;
Compare to another lawyer’s services;
Imply influence over judge, legislature, or official;
Designate competence areas without Board
certification; or
Use actor or model to portray a client.
Pennsylvania Rules of Professional Conduct Rule
7.1
Should a Lawyer Let His Staff
Use Personal Cell Phones to
Do Work?
Precautions in Using Personal
Devices
• Trend to allow employees use personal devices (v. company devices)
• More trendy and functional (e.g., iPhones & iPads)
• Less security capabilities
• Places company data in hands of third-party suppliers
• Risk for data breach
• Best practice is to implement policy addressing issues such as:
• Limiting employee privacy rights;
• Expressly stating that company owns all data on these devices that sync to company
networks;
• Requiring passwords; and
• Implementing remote wiping feature for lost or stolen devices.
Issue 9
Rather than Deal with these
Rules, can a Lawyer Just
Say He Just Doesn’t Know
Anything About Technology?
A Lawyer Has a Duty of Competence
He should act towards client’s interest with
competence;
commitment; and
dedication.
And should control his workload “so that each matter can be
handled with diligence and competence.”
And should “strive to become and remain proficient and
competent in the practice of law.”
Rules of Professional Conduct Rule 1.1, 1.3, and 1.4
ABA Rule 7.3(a), (b).
ABA Rules—Competence Duty
• Under Rule 1.1, competent representation requires:
• Legal Knowledge;
• Skill;
• Thoroughness; and
• Preparation.
“reasonably necessary for the representation.”
• 20/20 Commission revisions to comments would include
the benefits and risks of relevant technology (cmt. 6)
20/20 Commission’s
Reserved Areas for Future Inquiry
• Inadvertent attorney-client relationships
• Attorneys “friending” judges
• Information gathering about adverse parties
• Blogging and online discussion forums
• Giving legal advice on the Internet
• Disclosure of confidential information on the Internet
20/20 Comm’n Report, Sept. 20, 2010
Issue 10
Disciplinary Actions and
Social Network?
Disciplinary Action & Social Networking
• Can Employers Base Disciplinary Action
or Termination Decisions on a SNS page
or post?
• Typically, yes, if it does not violate
discrimination or other employment laws.
• BUT, employers should do so cautiously. Many
questions to ask, for example:
• How was the information obtained? (public post v.
private post)
• Was the SNS search performed consistently?
• Is the source reputable?
Legal Constraints on Employee Discipline
• Some states have laws that prohibit employers from
considering off-duty conduct when making adverse
employment decisions
• About nine states, including California, New York, Colorado, and
North Dakota, have statutes known as “lifestyle discrimination”
laws, which ban discrimination based on legal off-duty recreational
behavior
• An employer could arguably violate these laws by
terminating an employee after discovering from social
media that, for example, the employee was drinking the
night before
Legal Constraints on Employee Discipline
• National Labor Relations Act- Section 7: protected
concerted activity; applies to both union and non-union
employees
The NLRB Stakes Out its Position
• NLRB found that Facebook post soliciting assistance from
co-workers on the issue of job performance in order to
prepare for a meeting with the boss was concerted
activity.
• Next, the NLRB found the Facebook posts were protected
because they went to terms and conditions of
employment.
• Finally, even though there was swearing or sarcasm in
some of the posts, the employee was still protected!
The Knauz Decision
• NLRB finds NO violation of NLRA when employer fired
employees based on social network posts that were
irrelevant to their working conditions.
The Costco Decision
• NLRB issued first social media policy decision on Sept. 7,
2012
• Finding: Costco policy—which prohibited Costco
employees from making statements on social media that
could damage the company or other employees’
reputations—could chill employees’ rights regarding
protected concerted activity under the NLRA.
• Finding consistent with NLRB’s three reports on social
media issues.
Examples of Policies that the NLRB has
Found Violate §7
• Protecting confidential information and prohibiting the use
of company logos, graphics, or videos of the employer’s
facilities
• Giant Foods- July 11, 2013 Advice Memorandum
• The term “confidential information,” without limiting language, can
reasonably be interpreted to include information concerning terms and
conditions of employment.
• Use of the company’s logo and trademarks while engaging in Section 7
activity would not infringe on any proprietary interest.
Examples of Policies that the NLRB has
Found Violate §7
• Prohibiting employees from using any social media
• Prohibiting any communication or post that constitutes
embarrassment, harassment or defamation of the
employer or its officers, directors and employees
• Quicken Loans—June 25, 2013 Decision
• Prohibiting statements that lack truth or might damage the
reputation or good will of the employer, its officers,
directors, and employees
Examples of Policies The NLRB Found
Do Not Violate §7
• In the same report, the Board found certain activities
involving Facebook or Twitter posts were not protected:
• Newspaper employee terminated following a tweet about news
headlines including homicides, several tweets with sexual content
and tweets criticizing an area television station BUT the tweets
were not shared with co-workers. NLRB found this was not
concerted activity.
• Employee terminated based on a Facebook conversation with a
relative complaining about not getting a raise and working without
tips. He did not discuss the posting with his co-workers and none
of them responded, so not concerted activity.
Ask Yourself…
• Does Posting:
• Seek to initiate, induce or prepare group action?
• Reference conversations with co-workers that occurred before
postings were made so that the posting is a logical outgrowth of
those conversations?
• Seek to bring group complaints to the attention of management?
• Did any co-worker respond to the online post?
• If so, what was the nature of that response?
• Reference, involve or concern wages, hours, benefits, working
conditions or other terms and conditions of employment?
• So outrageous, disloyal or disparaging of the Company’s product or
service so as to lose the protection of the Act?
Issue 11
Social Media for
Recruitment?
Potential Liability Arising From Social
Media in the Workplace
Using Social Media for Recruitment
• Attract Employees
• Source of Candidates
• Engage Candidate
• Screen Applicants
• “Close the Deal”
What are You Likely to Find on a Social
Networking Site?
• Education History
• Links to Profiles of Friends
• Work History
• Links to Blogs
• Career Interests
• Political Views
• Hobbies
• Memberships
• Favorite Movies
• Drug Use
• Poor Judgment
• Vacation Photos
• Party Photos
• Family Information
Can an Employer Legally Decide Not to Hire a
Candidate Based on a Review of Social Networking
Sites?
• Yes, so long as the employer does not violate state or
federal discrimination laws, or other state statutes which
prohibit the use of certain kinds of information.
• There is no prohibition against using information that an
applicant places in the public domain. However, use of
protected demographic information such as race, gender,
national origin, age and pregnancy, among others, is
prohibited in hiring decisions.
• Risks?
Risks for Employers
• Hiring Issues Associated with Using the Web
• Viewing applicant’s personal information on SNS may trigger antidiscrimination laws
• Access to information regarding protected status?
• Age, disability/medical information, race, sex, religious beliefs, pregnancy,
sexual orientation, military status, marital status or other protected
characteristic (GINA)
• Learning about applicant’s workers’ compensation claims history
• Learn about criminal or arrest histories
• Invasion of privacy
So What Should You Do If You Want To
Do Searches?
• Problem:
• A search may identify an applicant’s protected characteristics such
as age, race, sexual orientation, marital status, arrests or other
factors that should not be considered in a hiring decision
• Solution
• Have a non-decision maker conduct the search and filter out
protected information
So What Should You Do?
• Problem:
• Most of the good information about applicants on the internet
requires you to get past security tools
• Solution:
• Do a better job interviewing. Do not use false identities or require
applicant to provide you with passwords.
If You Are Going to Do Searches
• Establish Guidelines for Online/SNS Search of
Applicants
• Before you do a Search:
• Determine how relevant the information is to the job
• If you are going to do these searches:
• ID appropriate searcher
• Train searcher
• Do them consistently
• Document them
• Consider using third-party service
Negligent Referral
• Facebook, LinkedIn, and Twitter allows users to post
recommendations from their employers
• Employee expects detailed favorable recommendation
• Favorable on-line reference may conflict with employee
performance evaluations
• Negative online recommendation may be the basis for defamation
claim
Should You Ask for SNS Passwords from
Applicants?
• Facebook vows to end employers’ practice of asking for
passwords from applicants (as well as for current
employees)
• Legal Protections:
• Password Bills Effective as of 2013: Arkansas, California,
Colorado, Delaware, Illinois, Maryland, Michigan, New Jersey, New
Mexico, Nevada, Oregon (1/1/14) Utah, Vermont, and Washington
• The Social Networking Online Protection Act (February 2013)
• Introduced in the House
Questions?
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