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LinkedIn and Twitter and Blogs, Oh My! Social Media's Impact on Ethics in the Practice of Law

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LinkedIn and Twitter and Blogs, Oh My! Social Media's Impact on Ethics in the Practice of Law

Do you friend, tweet, connect, or blog with colleagues, friends, clients, and others? If so, have you installed an automatic mental pause button before posting on social media? Are you now wondering about where and why to find said pause button? Well, you have come to the right course because we will explore the answers to these questions and more as we journey to uncover the impact of social media upon the practice of law. After a bit of historical context, the course will reveal why today’s lawyer must be imbued with social media savvy in order to effectively represent clients, market a law practice, and avoid ethical landmines that endanger a lawyer’s license to practice law.

Presenters

Jan L. Jacobowitz
Founder & Owner
Legal Ethics Advisor

Transcript

Jan Jacobowitz:  Hello, and welcome to LinkedIn and Twitter and Blogs, Oh, my: Social Media's Impact on Legal Ethics on the Practice of Law.

   So a few questions for you. Do you friend, tweet, connect or blog with colleagues, friends, clients and others? If so, have you installed an automatic mental pause button before posting on social media? Are you now wondering about where and why to find said pause button? Well, you have come to the right course because we will explore the answers to these questions and more as we journey to uncover the impact of social media upon legal ethics in the practice of law.

   After a bit of historical context, the course will reveal why today's lawyer must be imbued with social media savvy in order to affectively represent clients, market a law practice, and most importantly, avoid ethical landmines that endanger a lawyer's license to practice law. The roadmap for this course involves learning some of the historical context for both social media and the legal profession. I always think historical context provides a good framework for understanding what's going on in contemporary society.

   We're going to look at various aspects and stages of a case where social media should be considered. We'll look at the attorney advertising rules in connection with the use of social media to market a law practice, and again, identify legal ethics landmines for the unwary lawyer. And unfortunately, there's been a number of them who post negative commentary on social.

   Let's begin by a short history of social media. One author, Tom Standage, posits that actually it's not a short history, that human beings have been essentially writing on the wall for 2000 years or more. He talks about human beings being by nature wired to be social human beings and going back to the development of the social brain and language and the purpose for language being social connection. But if we fast forward a bit from the early development of the human brain to Rome, you start to see the first evidence of a social network. Now again, no internet, but the idea of social networking.

   In ancient Rome, the art of letter reading became a type of social networking. In fact, there's a quote from Cicero that says, "Whether you have any news or not, write something. I shall write to you nearly every day, for I prefer to send letters to no purpose rather than for you to have no messenger to give one to if there's anything you think I ought to know."

   Cicero and his friends and many Romans not only sent letters to one another, they would often send copies of other people's correspondence within their letters. And then Julius Caesar founded a daily gazette called the Acta, and it was published only one copy at the Roman forum. So many people would send scribes down to take notes, and then they would share these notes. So you can just imagine there was a post on the wall at the forum, to use today's language, and scribes would write what they felt was most important in their own way. And so then it was passed around much like perhaps social media posts today, where people are focused on what's important to them.

   Another example of writing on the wall comes from Pompeii, where archeologists have discovered literal writings on the wall, meaning that people often had homes where their home faced inward to a courtyard. So the back wall of their house was on the street, and so people wrote on it similar to posting on a Facebook wall. They discovered dialogues that look very much like social media posts.

   There was one on the back wall of a tavern, not someone's home, that said, "Successus, a weaver, loves the innkeeper's slave girl named Iris. She however does not love him. Still, he begs her to have pity on him." And then his rival writes, "Bye loser." And below that there were other post. One said, "Envious one, why do you get in the way? Submit to a handsomer man who is being treated very wrongly and is darn good looking." And then another post said, "I have spoken. I have written all there is to say. You love Iris, but she does not love you. To Successus, see above," and then signs his name.

   If we move on from ancient Rome through history to the 1500s, we have Martin Luther cited as perhaps the first person whose ideas went viral by today's standards. So he published his 95 Theses in 1517, which opposed the church's selling of indulgences that ensured that the purchaser would avoid temporal punishment and go directly to heaven. And it's not clear whether he facilitated the original widespread distribution of his document, but popular demand and unprecedented ability to rapidly meet the demand provided Luther with a methodology to share additional thoughts. And of course, what this is referring to is the invention of the printing press. And the scholars say Luther would pass his text of a new pamphlet to a friendly printer, no money would exchange hands, and then the pamphlet would ripple through a network of printing centers across Germany.

   There were many who also responded to his pamphlets, and the stats by somebody who has studied this says that from 1517 to 1527, which is known as the first decade of the Reformation historically, 6 million pamphlets were printed, and approximately one third of those were authored by Luther. Some of the other ones criticized Luther, and then he'd respond with another pamphlet. And these pamphlets became the focus discussions among family, friends, coworkers at inns and taverns. So there we have the analogy to viral messaging on social media today that fuels political or social revolution, or at least supports it. And they say he didn't set out to split the Christian Church, but the ultimate effect of the campaign he had started played a vital role in what transpired.

   Between Martin Luther's viral messaging and today's social media, there were other examples in both the American Revolution and the French Revolution, where there were pamphlets like Common Sense and the Federalist papers in the American Revolution. And there in the French Revolution, there was an underground network of witty rhymes that traveled freely, and they were shared both in oral and written form to reach all classes of people, regardless of their literacy rate.

   Of course, social media and the digital age as we know it today began in the mid-2000s. And we've seen other movements, from the Arab Spring uprisings in the Middle East in 2010, to the death George Floyd and the Black Lives Matter protests throughout the world in the summer of 2020. We've seen social media play a role in many social and political movement. But just to clarify and not to be misunderstood that social media, whether old school or today, is the reason these things happen.

   From Tom Standage's book, he writes, "A helpful perspective, common to the Arab Spring and the Reformation is that getting a revolution going is like starting a fire."

   Jared Cohen, a former official in the America's State Department who now works for Google, has likened social media's role in the Arab Spring to that of an accelerant that causes fire to spread more quickly.

   A similar view was expressed in an illuminated manuscript from 1572 showing how a tinderbox of European religious discontent was finally ignited. John Wycliffe is depicted holding a match, Jan Hus a candle, and Martin Luther of flaming torch. New forms of social media did not start the fire in either the 16th century or the 21st century. But in both cases, it helped turn an initial spark into a conflagration.

   So stepping back a moment, if you look at a timeline of social media that developed that we use today, you see that many of the most popular sites were born between 2003 and 2006, and then a bit beyond there all the way till up to about 2010. And you also see that there are billions of users.

   The July 2020 statistics from a company called Statista, who follows these trends, shows that there were over 2.6 billion users on Facebook as the largest platform still, and YouTube the second most popular site had 2 billion users. We see also that Twitter users send approximately 6,000 tweets per second, or 500 million tweets per day, which amounts to 200 billion tweets per year. It's just mind boggling numbers. And the Pew Research Center reports that approximately seven out of every 10 adults in the United States uses social media, and roughly 75% of those adults are daily users.

   So this is why are visiting social media in connection with legal ethics, because ubiquitous is perhaps an overused word in terms of social media and how it's woven its way into the fabric of our society. It's important to know out here, and then we'll compare it to the legal profession in a sense, that the culture of social media is one of sharing and connecting. That was the founding statement for Facebook, that it was attempting to connect the world. And obviously the culture is such that people go onto Facebook and other platforms to share the daily events of their lives, to offer opinions, to respond to others' opinions or ideas or the birth of a child or a grandchild.

   So it's kind of all encompassing in our daily lives, and this is why it becomes important for lawyers because lawyers are included in those statistics, they're not singled out. Some lawyers are more active on social media than other lawyers. But here's where we get to a look at the characteristics of the legal profession. So the legal profession historically has a very different culture. It's a culture of slow analytical processing and confidentiality and respect for the rule of law, for the courtroom, and imbued in the rules of ethics respect for clients, opposing council, the judiciary, et cetera. So when you look at the characteristics of the legal profession, rapid sharing and connecting kind of clash with the idea of a thoughtful analysis towards a solution of a problem in accordance with the rule of law and respect for all the parties.

   Then if you move even further and look at the historic impact of technology on the legal profession, you see perhaps another disconnect, which is the legal profession is not known to be early adopters of technology. In fact, the legal profession was slow to embrace the landline, the telephone, when it as invented. It was thought to be by some unprofessional, it was thought to perhaps breach confidentiality or risk breaching confidentiality of lawyers' clients. And marching through the historic to our impact on the profession, you see from the landline, to cordless phones, to the cell phone, to the invention of the fax machine, to email. At every step of the way the legal profession is reluctant by nature and often shows up a bit late to the party, armed with ethics opinions, telling lawyers that if reasonable efforts are employed in the use of technology, that it's likely okay.

   A good example of this is the ABA issued an opinion in 1999 on email and proclaiming email that there was a reasonable expectation of privacy and there was not a lot of concern about using encryption if a client had particularly sensitive information, perhaps to discuss it with them. And if you fast forward to May of 2017, so the better part of two decades later, the ABA released Opinion 477R, would essentially said, "Let's revisit this concept." Because actually encryption has become pretty widespread, pretty easy, not too expensive, and offered lawyers essentially a threat analysis to go through, which is also embedded in the confidentiality rule, the comments to it. Saying, "Think about the sensitivity of the information, the likelihood it would be disclosed, the cost to employ additional safeguards and the difficulty and the effective representation of the client if the lawyer has to employ those safeguards."

   So that came after the ABA amending the comments to the Competence Rule that now says that lawyers, to be competent, should understand the benefits and disadvantages of technology. And that amendment to the note to the rule has been adopted by 39 states since the ABA modeled that and many states have talked about technological competence in opinions or in advice on the state bar website.

   So you see here what might be a bit of a culture clash. You have social media being rapid fire, as we discussed, share and connect. You have a profession that's been by nature slow to embrace technology, and also thoughtful, analytical, slow to develop responses to problems. And I'm of course not talking about a lawyer conducting cross examination in a courtroom where they have to be quick on their feet, but I'm talking about the general nature of the legal profession.

   So that's one theory perhaps on why lawyers get in trouble on social media, is a culture clash and the idea that you're operating in many respects as a lawyer 24/7. So you can't really step out of your lawyer persona and talk about a case on social media in the same way you would talk about taking your dog to the vet or the dinner you just had. Because when you're talking about your case, you're likely failing your competence test of understanding social media, which is a subpart of technology and breaching confidentiality.

   So that's just a highlight, shall we say, before we get into actually looking at the different ways social media and ethics intertwine throughout a lawyer taking on a case or the general practice of law.

   So let's talk about a lawyer taking a case, and we'll consider litigation. It's the best way, I think, to illustrate the impact of social media on legal ethics and practicing law. So when a client comes into a lawyer's office, before the lawyer even agrees to take the case, or if they agree shortly thereafter, but certainly before they file a complaint in a case, there's an investigation that goes on. And right from the start, we have the idea that in the ethics rules and its rule 3.1 requires a meritorious action.

   So what does that mean? A lawyer has to have a reasonable basis in fact and in law to file a case. So if a client comes in to you claiming terrible incapacitating injury from an accident and you don't look on the client's social media, what you might miss is the client zip-lining two weeks ago on a trip in Costa Rica. That comes from a story a judge told in one of my classrooms where she saw this happen on cross-examination during a trial. The plaintiff's lawyer didn't ask about social media, didn't investigate before the lawyer filed the case. The opposing lawyer had pictures from the public page of the plaintiff's social media account showing her literally zip-lining, which went counter to all her claims of injury.

   So investigation and ethics hand in hand before a lawyer even takes a case or certainly before they file a complaint. And part of this investigation requires not only the competence we've talked about, but communication with your client and diligence. Those are both fundamental ethics rules. Talk to your client, ask them whether they've been on social media and explore that.

   Regardless, personal injury is a good example. You see this a lot in family law too, but regardless of the nature of the case, find out what's out there. Then if you decide to file a case, perhaps there's a logical explanation for pictures that seem to run counter to claims. Maybe they're old pictures. In the example where someone's doing yoga, perhaps now they're doing restorative yoga. But at least find out so you have a reasonable basis in fact and in law.

   If you move forward then, some lawyers are surprised to learn that social media is now playing a role in establishing jurisdiction and service of process. So right from the start, where can you file the lawsuit and how can you serve the other side? Jurisdiction has been found, for example, when a company comes into a city, this was a shipping company, and tweets out information in an attempt to get additional customers. The use of Twitter in the location was enough to establish jurisdiction.

   Service of process is something else that substitutes service of process, without going into too much of a civil procedure lecture here, is often permitted either by the rules or by the court. If you can't directly serve someone, there has been service of process permitted via social media, particularly on Facebook in certain jurisdictions. So if you're having trouble serving a complaint on the other side, don't discount the concept of asking the court about social media.

   Also, if you can't even find the other side, there's courts that have essentially established a duty to Google, where lawyers have gone to default the other side and been asked by the judge, "Did you Google the person? Could you find them that way?" So that's a bit of civil procedure at the start of a case.

   Then when you move on, the discovery process in litigation is now often discussed in terms of both informal and formal discovery. So informal goes to investigating the case perhaps throughout, certainly after you file the complaint, seeing what the other side might have up on social media, finding it and looking at witnesses, opposing parties, always again from a public page perspective. In other words, there are ethics opinions on investigating witnesses. Now some of those ethics opinions say, "If the witness is not represented, then you can send a friend request, but you must tell the witness who you are and why you're making the request." So you're not using any pretexting.

   Now on opposing parties that are represented, the ethics rules are quite clear that you can't approach an opposing party without consent from the opposing party's lawyer, which is likely not going to be given. So you can't friend an opposing party because you're in violation of the ethics rules. We're talking about rules 4.2 and 4.3 in terms of contact with represented or unrepresented parties.

   Now moving on to formal discovery, which is interrogatories, the production of documents and depositions. Once again, if we default back to the new idea that to be competent, you need to understand technology, and social media is part and parcel of technology. Then you need to understand how to add to your interrogatories production of documents and depositions questions that explore or ask about whether the other side has now or has ever had a social media account. If so, what the account is, et cetera. If you don't understand technology and social media, you won't be able to formulate the questions.

   And here's another kicker here. There's been several ethics opinions that have advised on whether, when you do that initial investigation and you see things on your client's social media that you don't like in terms of the case, whether your client can be advised to take that information down. So here's the thing, prior certainly to filing a lawsuit, the opinion suggests that you can have your client remove the post from social media as long as it's saved. So not spoiled, spoliation is impermissible. As long as it's saved, so it could be produced in discovery.

   So you see where I'm going with this. If the plaintiff can remove, but save posts, which is similar to telling someone they could take something down from a bulletin board, old school, but save it, put it in a desk drawer or file cabinet. If you don't understand this and you're on the other side, then you may never find that. So you need to understand to ask about whether they have an account and whether anything's been removed from the account, because that's fair in discovery. We'll do some examples of this in a few moments.

   But moving on from discovery, of course you have the judge, and in a jury situation, you have the jury, and there's a lot of advice to looking. One, looking the judge up, the same you would ask colleagues, to see if they have any kind of public persona on social of media. There's a lot of opinion saying that judges should not be friends with lawyers who appear before them or should recuse themselves. So depending on what jurisdiction is, again, it's awareness here that we're talking about. Be aware because if your judge is friends and communicating with the opposing counselor or the opposing party on social media, it's something you ought to know about, and it has happened throughout the country.

   In terms of the jury, there are a lot of opinions about researching the jury. And in practice, there is even a point of view that at a certain point it's going to rise to the level of at least incompetence, if not malpractice. Although that's harder to prove if you don't investigate the jurors, because many jurors, many people, in fact, don't have privacy settings on their social media. And there has been situations where jurors have been found to post in a way that's very biased to one side or the other, that the juror has not revealed in voir dire or has not been asked about.

   There's also been a number of situations where jurors, despite being warned by the court, not to be posting about the case are nonetheless posting about the case. So while many of these jurors have been held in contempt, there's been appeals over jurors. It's been difficult for someone to actually win and get a new trial solely based on a juror tweeting. But again, if you're going to be a competent, effective lawyer, you need to be aware of what the jurors are doing and whether they're following the orders of the court.

   So you kind of have a soup to nuts, from when the client or potential client walks into your office, to when you take the case, file the complaint, do the discovery, all the way through presenting it to the judge and the jury. You can see where social media plays a role at each step of a case. Of course, for those of you who are keeping score of the ethics rules, the discovery and the judge and jury, you are in the, what I call the threes. So 3.3 is candor to the tribunal. Rule 3.4 is fairness to opposing counsel, which includes not precluding their access to legitimate discovery. And 3.5 pertains to the decorum of the courtroom, not to disturb it, and also not to communicate with the jury.

   So again, when I say investigate the jurors, I don't want to fail to mention that you cannot directly connect with them or friend request them. That would be illegal communication with a juror. Impermissible, I should say. But you can look at anything that's public. And that's sort of the overarching view in terms of investigating witnesses, opposing parties, judges, opposing counsel, the jury. It's all, whatever's public out there, the case law that's come down has pretty clearly said that people don't have a reasonable expectation of privacy. And actually there's not a reasonable expectation of privacy generally when there's motions to compel and you have a reason to get behind a privacy setting. But in terms of just general investigation, anything that's out there in public is fair game.

   So let's move on to attorney advertising, which is a whole category unto itself. The first thing to note about attorney advertising is it's extremely important check with the state you're advertising in or states because there are tremendous differences among the states. And in fact, the ABA model rules were modified a few years ago and very much simplified, but that is not the case in other states. Florida being a really good example of a state that has extremely detailed advertising guidelines that explains to you. And by the way, they have social media guidelines as well that explains to you a use of a client testimonial, has to have a disclaimer or something that's difficult by the way to do on a platform like LinkedIn, that it can only be on certain topics, that past results have to have disclaimers.

   So the state's range from listen, just don't mislead and misrepresent, to very detailed examples of what you're allowed to use. The biggest probably overarching thing to determine is, is a lawyer just sharing information, as we discussed earlier, as human beings do on social media, or is the lawyer advertising? So different from an overt advertisement is a situation where a lawyer wins a big case. And there's a good California opinion that came out quite a number of years ago now, but is still referenced in terms of figuring out is a lawyer sharing or are they advertising? So the opinion has various remarks that it explores.

   The first one, "Case finally over, unanimous verdict. Celebrating tonight." In this situation, California said, "No, that's not really an advertisement. That's just sharing information." And by the way, from an ethics standpoint, it's also not most likely violating any client confidentiality. But when the lawyer posts another great victory in court today, "My client is delighted. Who wants to be next?" That is considered more along the lines of a solicitation and advertisement. They're not just sharing news. They're saying, "Hey, come hire me." Same with, "One million dollar verdict, tell your friends and check out my website."

   On the other hand, an example, "Just published an article on wage and hour breaks. Let me know if you would like a copy." Is more looked at sharing and providing information to the public. So along with exploring what your state actually allows you to do you, what kind of comparisons.

   Going back to Florida, most comparisons are verboten unless you can objectively verify what you're saying. You can't say you're the best lawyer or even one of the best. You can say you're the biggest law firm that specializes in a certain area if you can actually prove you are. So yes, very technical, but go back and see what your state permits, and then check yourself in terms of just random, or the attorneys in your office random posting because you're excited. And that's the, did you have a pause button installed in your brain? Which we will get to. Are you just sharing or are you so enthusiastic and exuberant that you forgot that you're actually violating the advertising rules?

   So that is a good segue to talking about hosting negative commentary on social media and how lawyers get in trouble or have negative consequences for their negative commentary. Under the category of negative commentary, I divide the types of situations where lawyers have found themselves in trouble into three categories. That's commenting on current events, commenting on their cases, or responding to negative online reviews.

   So the current event category is defined as a situation where the lawyer is just commenting on what's going on in the news. There's particular connection to the lawyer's practice. They're just, again, taking off their lawyer hat, not thinking about potential consequences, and commenting on events of the day.

   One unfortunate example of commenting on a current event and having it damage a career happened last summer in Florida, where an assistant state attorney posted on her Facebook page in the aftermath of the protests about the death of George Floyd. Here's the quote, "When will people learn that their criminal acts and obnoxious protesting actually get you nowhere? Act civilized and maybe things will change. I've never seen such animals except at the zoo."

   That's the end of the quote, and the post wasn't directed at any particular race, and it noted that. But yet the state attorney's office where this lawyer works said, and this is another quote, "Following our review of the Facebook posting by the assistant state attorney, we have made the decision to terminate her effective immediately. The views expressed in that posting are entirely inconsistent with the ideals and principles of our office," I'm paraphrasing, "and the duties and responsibilities of an assistance state attorney."

   Well, the state attorney had attempted to clarify her post by saying, "I made a post and realized it could be misinterpreted, so I deleted it within seconds." Obviously other people saw it though in those seconds. And then she went on to say, "I believe in justice for all and that all lives matter. I don't look at anybody by their color, shape, or size. My post specifically referenced the people who took advantage of the opportunity to protest. I respect people who have a mission and wanted to accomplish it. It is hard to respect those who are taking it away with violence and destruction."

   But that was seconds and that was an eight year career that was ended in a matter of seconds because of an inflammatory post in an emotional space that we call social media. And let me just say that social media, I'd say it's in its adolescence. I think Facebook is about 17, 18 years old. It's been around long enough now that there's been some psychological and sociological studies on human behavior on Facebook and other sites. And again, I'm using Facebook as sort of the proverbial or typical type of site. But what these studies have shown is that people go to social media to vent their anger, that they get gratification from venting their anger in the immediacy of the moment, that angry posts are more likely to go viral. They're more likely to be shared and that incivility begets incivility.

   So there you have a post that was removed and apologized for in seconds, but a career that's been tarnished. And there's many, many examples. I'm using a current one for obvious reasons, but these examples go back a decade. So since at least 2010, there's been examples of lawyers and judges posting on social media and being suspended or reprimanded by the disciplinary authority or losing their jobs or both.

   So I'm not going to belabor the point further than to say it's a big, important category, and it's one where perhaps you see this culture clash between social media and the legal profession and lawyers not always realizing that they can't really step out of their lawyer persona and make these kind of posts without repercussions.

   So the second category of cases ... Or, I'm sorry, circumstances, are cases where lawyers are actually talking about their cases. So we referenced one in terms of advertising, and it could be alongside advertising or just talking about their cases.

   One example that came from Massachusetts was a lawyer who came back from juvenile court, where he was trying to get a grandmother custody of her grandson, and just posted that he did. And then he had friends asking him, "Well, what was the case about and why does the grandmother want custody, et cetera?" And he said, "Well, DHS didn't want to give her custody either, not sure she can control her daughter." The mother of the child. And guess who saw it? The daughter, the mother of the child, and told the grandmother and a disciplinary complaint was filed.

   So that's a very casual, not headline grabbing case where a lawyer again is just different than commenting on a protest in the streets, actually commenting on his own case and confidentiality. So whether it's advertising or it's just chit chat, you really can't talk about your cases unless perhaps you have client consent, and then you still have to consider whether that's a good idea or not, depending on the nature of the case.

   So the final category here before we get to a few hypotheticals is negative online reviews. So what's happened in recent years is more and more consumers have realized that not only can they post a negative online review about a hotel or a restaurant, but if they don't like their lawyer or they don't like how their case turned out, regardless of whether it was really the lawyer's fault, they can post a negative online review about their lawyer. And heres where, again, lawyers are human too, human nature comes in and there's a impulse to respond to a negative online review. But the lawyers who have done this find themselves violating confidentiality of a client and ending up with anything from a reprimand to a suspension.

   One recent case from New Jersey, actually that was completed in May of 2020, involved a lawyer who perhaps thought this was fair or clever. So instead of directly responding to a negative online review on the platform it was posted, he went and found his client's massage business on Yelp and said, in partly in his defense, "Well, I thought what was good for the goose was good for the gander." And he posted on her business website. And here's a quote, Well, the client is a convicted felon for fleeing the state with children, a wonderful parent. Additionally, she has been convicted of shoplifting from a supermarket, hide you your wallets well during a massage. Oops, almost forgot about the DWI conviction. Well, maybe a couple of beers during a massage would be nice."

   Again, the lawyer defended not only with the good for the goose is good for the gander, but he did say that he admitted that he did it. He was very upset by her rating of his practice and it wasn't his finest moment. However, he didn't think it was unethical, and he had taken the post down. The bar didn't agree with his analysis and not only found that he violated confidentiality and that even though he also argued that that information was publicly available. Which by the way doesn't work, there's a difference between publicly available information and generally known information. So if you have to go look it up and find it, it's still generally considered confidential. So they were very disturbed by the respondent's use of social media. And he had some other aggravating factors that we won't go into, but he's been suspended for a year. So there you have it, better again to hit the pause button.

   So we've kind of gone through the different aspects of the case, advertising and now negative commentary, and so let's try a few hypotheticals to see if we can apply what we've learned.

   Here's the first one, it's a series of short ones based on one morning, Attorney Paul Jokester sees his former assistant Deborah Dainty at a coffee shop and invites her to have breakfast. Paul, always a jokester, offers to hold Deborah's for her as she sits down, but then pulls the chair away and yells, "You just got Jokestared!" Deborah falls and immediately claims neck and back damage. Paul apologizes, but Deborah is too angry to respond. Over the next few months, the following events take place.

   So here's event one. A few weeks after the chair incident, Paul, fearing that Deborah will file suit against him, consults with attorney Adam Hardball. Adam investigates Deborah's social media presence. The first hit on Google is a link to Deborah's Facebook page. Adam accesses the Facebook page and sees a public video of Deborah dancing just a week after the chair incident.

   So the questions here are, is there any problem with him looking at her Facebook page from an ethical standpoint and is there anything he should do? So based on our discussion above, it's a public page and she's dancing and perhaps that goes against her claim of injury. So he's being competent and efficient and effective. There's no case yet. But perhaps he should, at a minimum, take a screenshot and somehow preserve this.

   So moving forward, scenario two. Based on Deborah's public Facebook information, Adam suspects there may be additional content behind Deborah's privacy settings which may be useful. Adam also notices that Deborah is Facebook friends with a lot of young attractive men with whom she engages in many flirtatious interactions.

   Adam enlists Suave Sam, an attractive male paralegal at his firm to send Deborah a friend request, which she accepts. By doing so, Adam is able to access additional photos and content on Deborah's Facebook page which we're not public available.

   So now is Adam in any ethical trouble? And we have to say here, yes, because an attorney cannot do through someone else what they're not allowed to do. And even though this is seemingly pre-litigation, he's doing it for litigation purposes and so he can't invade her Facebook page in this way. But if instead of asking Suave Sam to friend Deborah, Adam obtained the information from Handsome Harry, a paralegal in Paul's office who was already friends with Deborah due to their past professional connection, or in Adam's office, let's say would be better. Then ethics opinions have said that's okay because you are accessing information that's freely available and you didn't do anything to violate the rules to get it. So that's a bit quirky, but that is what some of the opinions have said.

   All right, moving on. A few months later, Deborah consults with her own attorney, Megan Marvel. While doing her due diligence. Megan also finds Deborah's Facebook page and notices the following content: the dancing video already mentioned, numerous photos from a recent destination wedding she attended, which shows Deborah hiking, parasailing and spelunking, and a Facebook invitation to a dance competition that Deborah is competing in the following week. Megan advises Deborah to clean up her face, spoke page by deleting the video as well as other photos and content. She also advises Deborah to withdraw from the dance competition and to post an explanation on Facebook saying that she is too injured to participate in the competition. Additionally, she advises her not to post any similar content on social media going forward.

   Okay, so that's a bit of a mouthful. So let's first ask, does Megan's advice to clean up the Facebook page raise any ethical issues? Well, it does raise ethical issues because as we discussed earlier, we can't tell from this, is she telling her to take things down, but preserve them, or just to delete them so they can never be seen again? We know that the former is likely okay, but the latter is not. And some attorneys now in the personal injury world actually keep a box of flash drives in their desk and it becomes part of their process to download the Facebook page and keep a copy to protect both the client and the attorney in terms of destroying, impermissibility destroying evidence, and then it can be taken down and saved on this flash drive.

   What about the advice about the weightlifting competition and also not posting? Well, there's nothing wrong with telling your client not to talk about a case. Lawyers have always done that prior to social media, and the weightlifting competition, there's nothing wrong with telling a client to withdraw from ... I'm sorry, it's a dance competition. And that's assuming you even still believe as you're investigating the case that it's a valid case and you're going to keep the client, that kind of goes without saying. But to put information saying that you're too injured, you get into a really gray area there.

   One, it has to be truthful. And two, the legal profession is seeing more and more posting about injuries and complaining about injuries and, "Oh, I just came back from physical therapy again today." And a lot of lawyers would say, "Just don't do that because you're open a can of worms." Once you give your client permission to post, then you lose control over what they're posting. And posting favorable content, if it's true, might be okay, especially if a person is a daily poster. But again, not something that many lawyers would advise as a best practice.

   So we can see in that hypo' that Adam Hardball has the goods already. So even if they take it down and they save it, he's savvy enough now to know to ask for it and to even have proof that it seems to have existed at one point. And so if Megan and Deborah decide to oppose the discovery for any reason and Adam goes in to compel the discovery, he probably has a much better argument that it's likely to lead to relevant evidence.

   So last hypothetical, let's see if we can get through this, social media savvy and advertising. Ross Michael, a social media savvy associate at Zane Robertson Associates, is tasked with enhancing the personal injury practice's online presence. Ross reviews the firm's website. He decides to add a bold red tagline, "The most experienced specialist and personal injury." He also creates a section that lists past results and client testimonials. He then creates a Twitter account for the firm, @ZaneRobertsAssociates and tweets, "Another great victory in court today. Who wants to be next?"

   Ross also explores Bravo, a leading online legal services marketplace. He learns that individuals provide Bravo with details about their legal issues. Bravo then connects the potential your client with a lawyer. If the individual decides to retain the lawyer, then the lawyer pays Bravo a marketing fee, which is determined by the type of the case and the size of the fee.

   Ross claims his Bravo profile. Shortly thereafter, Bravo connects Ross with Victor, who has been injured in a car accident. Victor retains Ross on a contingency fee basis. Ross quickly settles Victor's case for $10,000. Mike receives a $3,500 fee from Mike, which Mike used to pay Bravo's marketing fee.

   So the tagline on the firm's website, the specialists and personal injury, the listing of past results and the posting of client testimonials. As we mention above earlier, using the term specialists, listing past results and posting client testimonials are all elements of advertising governed by the rules in various states. And in many states you cannot refer to anyone, any lawyer as a specialist if they haven't been certified in a certain way. And there's ways that you must list past results and client testimonials that involve not only often client consent, but how you describe the past results and what the client is allowed to talk about. So all those are all things that are potentially problematic.

   Mike's tweet comes from, "Another great victory in court today. Who wants to be next," comes from that California opinion that we discussed, and that likely is going to be considered advertising everywhere." Another great victory in court today," is likely okay, especially if it's not a case where people realized the trial was going on and who the client was, client identity.

   Now the last question is about Mike's participation in Bravo legal services marketplace, and really this could lead us in to an entire other CLE, which we're not going to do right now. But there is an issue with lawyers sharing legal fees with non-lawyers and the type of marketing they can use through vendors or websites that link lawyers and clients together.

   Now there's more and more of this going on, and again, it's a state by state analysis. For example, Arizona has done away with the not sharing with non-lawyers and not paying for referrals. Whereas other states are very strict about making that if it's a legitimate marketing fee, that the marketer is not analyzing the case. In other words, not practicing any unauthorized practice of law and is not being paid based on a percentage of the case, is just being paid a flat marketing fee.

   So I hate to leave a very complicated topic at that, but again, just creating awareness here. And so I hope that throughout this program, you've been able to learn about the importance of social media savvy and how it's impacted the legal ethics rules pretty much from start to finish in a lawyer's practice and why it's so necessary to hit the pause button before posting, and hitting the pause button and can be accomplished in any number of ways, which is another topic for another time. But a bit of mindfulness, a bit of pausing and thinking, a bit of allowing your analytical brain to catch up with your emotional responses from your quick thinking brain is the way to go.

   So thank you for listening, and until next time, just develop your social media savvy and stay ethical.

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1h 7m 24s

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