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Point - Click - Post: Ethics and Social Media

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Point - Click - Post: Ethics and Social Media

Social media is an ever-growing area that affects the practice of law, through attorney advertising, social networking, evidence collection, and monitoring. According to the Rules of Professional Conduct, attorneys must stay knowledgeable about anything that affects the practice of law, including social media. This course will touch on some of the basics of social media through various platforms. This course will also discuss the applicable rules of professional conduct that can be violated if attorneys are not careful regarding activity online. This course will address real-life case scenarios and examples of “what not to do”.

Transcript

Hello and welcome everyone, to today's presentation of Point - Click - Post: Ethics and Social Media. My name is Cari Sheehan and I'm an assistant clinical professor of business law and ethics at Indiana University Kelley School of Business. I'm also a conflicts attorney at Scopelitis Garvin Light Hanson and Feary here in Indianapolis, Indiana. I deal with ethics all day, every day in both the teaching aspect of it and the practice aspect of it for law firms and attorneys. So you can say ethics is really close to my heart and it's something that I know and something that I love really immersing myself in. And especially when it comes to social media and social media, is one of those realms that seems foreign to a lot of attorneys, especially older generations. And it can seem overwhelming at times, too, because people just don't know what to do with it. It's a lot of times attorneys think that if they are on social media, there is like this invisible screen that goes up in front of them to where they can't be seen or anything they do is not going to come back on them because they're online. It's not like being in person. I don't know how many of you have ever sent out an email or received an email, more likely than not, where someone said something and you're like, wait a second, You know, why are they being so mean? They're normally not like this. And then when you get them on the phone, it's a completely different attitude from them. And that's because for some reason, this being behind the screen, people will do things and say things and post things that they normally wouldn't do if they were face to face with another person. And we really need to take that idea of being anonymous online out of our heads because we are not anonymous online. We are there, we are present, and anything we do online can affect us as lawyers and can be an ethics violation if we're not careful. So let's get into some things where we really see attorneys fall down. Today, we're going to talk about attorney considerations regarding social media posting, responding to negative comments about yourself online. I know none of us lawyers ever have that. We're also going to talk about different things about non-lawyers, too, because while we all may be lawyers listening to this seminar today, we work with people who are not lawyers. And under the rules, under 5.5 of the professional rules of ethics, citing model rules. Since we all may be in different jurisdiction, we have the duty to supervise and to make sure our non-lawyers working with us and for us and in our law firm follow the rules of ethics, too. So we are going to talk about some considerations for them as well, because while they won't get disciplined through the disciplinary commission, it can have negative effects on you. If you're non-lawyers that are working for you, don't comply with the rules as well. Then if we have any in-house attorneys out there today or listening to the seminar, we also have some special considerations. If you are working in-house at a company or more of an in-house role. The first rule, though, I do want to talk about is rule one. Point one. 1.1 is kind of a very general rule. A lawyer shall provide competent representation to a client. Competent representation means to have the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. Now, this just doesn't mean staying knowledgeable in, say, tax law. If you're a tax attorney or IP matters, if you're an IP attorney, it means staying knowledgeable in everything that touches and concerns the practice of law, including technology, including social media, and including all of those areas. It can also mean staying up to date on every platform. How many of you know all the social media platforms out there? If I could see your hands, I guarantee you none of you would be raising your hand right now. I do not even know the ins and outs of every social media platform out there. And I researched this stuff and I talk on it and I present on it. And I also teach college students. So I really have to stay on top of stuff that they are doing to make sure it doesn't affect my classroom or if it does in a positive manner. And so we have to know the ins and outs of things because like it or not, social media, no matter where you're at in your law practice, is going to affect your law practice. If you're a plaintiff's attorney, I guarantee you that you will have a client at some point, if not multiple clients who post on social media. You're going to have to know how do you access those? Are they discoverable? What can the other side get when they try to look for those things? And you're also going to have to know how to advise your plaintiff client on what to do and not to do on social media. So it doesn't harm their case. Because if some of their posts are used in court, it could hurt them. For instance, when I practice as a plaintiff's attorney years ago, when I was a newer lawyer, I had a client and the client, you know, was claiming a neck injury from a car accident, claiming that he couldn't do anything like play with his kids or, you know, resume those normal days of life because of the pain and the functionality just wasn't there anymore. Well, we were in a deposition, and the next thing I know at opposing counsel presents to me PowerPoint or not PowerPoints, but slides and different information and posts that my client had put on Facebook and they were pictures and comments about him being at Six Flags riding roller coasters with his kids when he's supposed to have this altering, life altering neck injury that we're claiming. Needless to say that that that did not bode well for his case. And needless to say, that we had to readjust our strategy at that point and try to work out a settlement. But again, you never know what your client's going to post online. And if they don't keep it private, then in you have even bigger concerns because opposing counsel can find anything that's public. You also have concerns, too, if they do have a private account because just because it's private or something's just sent out to their friends, it doesn't stop their friends from reposting it, retweeting it, copying and pasting it over to something else. So anything you do online should never be considered private. If you think, Well, I only send it to my friends, that doesn't matter. It can still go viral, it can still go public. And us as lawyers have to have the knowledge of how that all works so we can advise our clients on what to do and not to do when they come to us regarding social media. And also we need that knowledge so that we know what to request and discovery as well. And so we've really got to learn social media and the ins and outs, whether we like it or not. It is here with us and we've got to know it. Now, if you do not know what social media is, I have put kind of the broad definition. Obviously there's different types of platforms out there, but it really just is a construct of public and semi-public profiles and private profiles, and we're all making common connections. If you think about it, if you're on LinkedIn or Facebook, we have friends. We connect with people that are in our same industry that may be in cross industries that can help us, that are in our same company. We promote each other. We applaud each other's successes. You know, we help each other out. Sometimes you even blacklist the bad ones. But it is this connection or this networking system online for people to interact and mingle. Now, if you think about it, how many of you would know if you've ever looked for jobs on LinkedIn or somewhere would have been able to access that same type of database instantaneously at your fingertips, say ten or maybe even five years ago, it wouldn't have been possible. We would have been reading newspapers, looking for job postings, you know, getting your hands on all that stuff, talking to people, going out, and now it's all just on social media. So it really is this public semi-public private connections in the system that's infinite. You can find postings from California to China to, you know, anywhere within seconds. And so it really is kind of a marvelous thing. And a lot of companies and corporations, not just law firms, have picked up that this is a good thing for advertisement, for their company, for their products, to get clients, to get customers in. And they have started using it and ramping it up. A lot of Fortune 500 companies really have used this. As you can see here. This is from 2016 up until the pandemic in 2020, post pandemic. These the ones like Instagram, TikTok, YouTube have skyrocketed off the charts. I just haven't found the new chart for it. But if you pull some of the data in from different things, you can really see that. But you can see a lot of Fortune 500 companies and also law firms. If you wanted to lump them in here to really concentrate on LinkedIn, you would probably see TikTok now at least in the 70 to 80% for most companies, as well as YouTube, skyrocketing up more, Facebook, Twitter skyrocketing up, more corporate blogs, Instagrams, because it is the platform, if you think about it, a lot of companies, especially makeup brands, alcohol companies, they're on TikTok, they're having influence to promote their products. They're doing things. We also now have attorney influencers on TikTok, which is a part of advertising which would implicate our advertising rules because everything we do online is subject to the rules of professional conduct for lawyers, advertising, talking confidentiality, all of those things. And we'll get to all those things in this seminar today. So we always need to remember, since we're subject to the rules of ethics, that if you cannot do it in person, then we should not do it online. If you always remember that and keep that in the back of your mind that if you can't do it in person, you cannot do it online, then you will be good to go and you shouldn't have be caught up in the ethical conflicts and the ethical dilemmas that could come up. But it is really something to really focus on, to keep in the forefront of your mind. If you cannot do it online, you excuse me. If you cannot do it in person, you should not do it online because it can be harmful. It can be harmful to our clients, to other attorneys, to our non lawyers and our firm, to companies and corporations. And we've seen the different scandals and the different backlash a lot of them have had over things that have been posted. And the problem is, though, that the Internet and social media is accessible 24 hours a day, seven days a week. Think about it. We are on our phones or have our phones with us probably 99% of the day. Even when you're sleeping, most people's phones, excuse me, are sitting right beside them. And so with that comes some positives. You know, if an emergency happens, we're going to be available. We can answer the phone, we can make sure we can get there in time. But the negatives with that come with being accessible 24 hours a day, seven days a week, because how many of you are at your best mentally being sharp and on top of it and making good decisions 24 hours a day, seven days a week? Some of you may raise your hand thinking you are. Some of you may be like, no. And most of us not 24 seven 100%. Because when you get tired, your brain sharpness and quickness goes a little bit down to when you're cranky. Maybe you're having some other personal issues going on or other outside things that are going to distract your focus. So this 24 over seven and moving like the speed of light is not good because we can type something out, hit send, and then we can't get it back. You type something out and hit post. You can't get it back. Someone's seen it. Someone may have already recopied repost it. You can't always pull it back. And so that is what we really have to think about, is making those good decisions, advising our clients to make those good decisions too, because once it's out there, it is out there and we cannot get it back. We also have to remember that we're not anonymous. We are not private and public is blurred line. You think it's private? It could go public. You cannot control anything that is on the Internet or social media once it is put out there and you may think, Oh, I got them all back. How do you know someone didn't screenshot it? How do you know someone didn't cut and paste it? How do you know someone didn't do something with it or save it on their device before you deleted it? You don't. So you've got to get that misconceived notion that you can have something private when it's online because you can't. This includes photos of your family, not just, you know, legal stuff, but anything online is never private. And we always need to consider that. Now, the main risk for attorneys come under certain rules of professional conduct. The first major rule where we see a lot of concerns is under rule 1.6 confidentiality. Confidentiality is huge. It is the hallmark of our profession, and we cannot reveal anything related to the representation of our client, even if it's public record without our client's consent confirmed in writing. And the next slide will really go through that confidentiality. So we're going to come back to that and really talk about, you know, how some attorneys misconceive that if it's on the public docket or part of the public record, that then we can, you know, talk about it, post about it without any thought or care, which is not true. If you represent a client, you cannot talk about the client, even the client's name, without the client's consent confirmed in writing. It doesn't matter if you filed an appearance in the case. It doesn't matter if you're listed as their attorney on a public platform. You as the attorney have to get consent and permission to talk about that client post, about that client post, about anything regarding that client's case. You have to get the consent confirmed in writing from the client before you do so. A defense of well, as part of the public docket will not hold up. You need the client's consent confirmed in writing Rule 1.6 Huge. Because if you think about it, most attorneys, when they win a big case or take on a big client or do some great success, what do they want to do? They want to go to social media, talked about their successes, talked about, you know, everything that they did right. You know, just to attract more clients in. And that is the last thing they should do because did they get the consent from the client? If they did, great, then they can do it. If they didn't, they can have a rule 1.6 violation, potential malpractice claim against them brought by the client and a potential disciplinary complaint. So you really need to stop and think when it comes to confidentiality and social media. We also need to think about forming an unwanted attorney client relationships. How many of you have ever had a friend or coworker or old high school buddy reach out on a platform and say, Hey, I have a legal question for you, and then you give them advice that could have created an attorney client relationship. You do not have to have an engagement letter in most circumstances to have an attorney client relationship. What matters is what the person who you're giving the advice to thinks that you're their attorney. If the information sought is regarding a legal situation and you provide that legal advice, you technically are their lawyer. You do not want to do that because that opens yourself up to risk liability and potential malpractice claims. This can happen through those messaging, private messaging or through blog posts. If you respond to someone's comment saying, Hey, I need some legal advice and then you answer their question randomly. You could have created an attorney client relationship that also goes into the next 1 or 1.5 because are you answering a question regarding law outside the jurisdiction in which you're licensed in? If you are, you could now have also violated the unauthorized practice of law because we cannot practice law in jurisdictions other than the ones we are licensed in. We do not have universal licenses. We are licensed by state and we need to always consider that. And with the Internet, especially TikTok, where a lawyer's post videos giving legal advice or, you know, talking about just general legal terms and they get specific questions, you have to be very careful. You should not answer those questions because you could create an unwanted attorney client relationship and you don't know where that person who's asking the question is located. And you could be violating rule 5.5, the unauthorized practice of law. You need to be very, very careful with what you do in that realm. This is especially with our tiktoking, with our blog post and with those message board systems, even like next door neighbor, if you have that in your area or something like that, you have to be very careful. Anything online, if you could not do it in person or would not do not do it online. We also have to balance two First Amendment constitutional considerations. However, as lawyers, we have to adhere to the rules of professional conduct and our companies or law firms policies first and foremost. So while we may have First Amendment rights of free speech, we kind of check that a little bit when we became lawyers because just because we can say it doesn't mean we should say it and doesn't mean we can't be disciplined for it. For a license, holding an attorney license is a privilege, not a right, and it can be taken away from you. So you really have to consider that, too. Yes, you can have your opinion. You can state what you want, and the government won't come after you or persecute you for it unless it's one of those exceptions. But it doesn't mean that your law firm can't fire you for it, and it doesn't mean that you won't violate the rules of professional conduct. So you really have to have your behaviors in your statements, really adhere to those things, company policies and rules of professional conduct. Again, if you can't do it in person or would not do not do it online, then we can also see violations from Rule 8.4, which is what I call the catch all rule. This is where we cannot post false statements or engage in conduct prejudicial to the administration of justice. Anything that goes against the administration of justice can fall into that category. It's very broad. If a disciplinary commission wants to get you on something that is normally one they throw in at the end, it is just the kitchen sink type of rule, as I call it. We also have to remember that we are responsible for all of our content that we post, that we put that little like symbol by that we retweet with that we endorse saying, oh, you know, smiley face heart. When you do that, that content becomes your own. So if you just go through and like all your friends posts and not even read them, you have to be careful because what do those posts say? If any of those posts would violate the rules of professional conduct or violate your company's policies, then you could be in trouble. Anything you like. Post, retweet, endorsed heart, smiley face. You know, at as your group's out as something you're involved in can make you subject to discipline if it violates the rules of professional conduct. There are several ABA opinions that are listed at the bottom of the screen here and model rules. And then if you're in Indiana, where I'm located, our disciplinary commission came out with an opinion just solely on social media and what you can and cannot do on it in July of 2020, which is worth taking a look at. But let's delve into these a little more. And we are going to concentrate really on confidentiality because it is huge. This is just that reminder, like I was talking about in our last slide, that confidentiality is anything that touches and concerns a practice. It is more than just an attorney client privilege. As you can see from the diagram at the bottom of the screen, it is everything, every witness statement, every evidence you collect, every thing that touches and concerns the practice of law. So you really need to think about that. The client's name, it is you know who you're going to call on the witness stand. It's just anything and everything. I cannot stress that enough. And we need the client's consent confirmed in writing before we can talk about them, post about them anything. And if it's public information, that's not a defense. If you're the lawyer, you need the client's consent confirmed in writing. And all of these these ABA formal opinions, the different model rules, even rule 1.6 in the comments tells you that that public information is not an exception. The only exceptions to confidentiality are in 1.6 B as in boy, that second part of the rule and it does not include public information. So we need to keep the confidences. So we are going to go through some real life examples of lawyers who did not keep confidences or who misused social media to their detriment, thinking that they were anonymous or thinking that they could get away with it because they weren't in person. And we're going to see where they went wrong so that you hopefully don't go wrong as well. The first example here. This is the case where an attorney, she was actually a public defender representing criminal defendants in court. And she really had a bad day in court one day. When you read the full opinion of this case, she got punched in the face by her criminal defendant client. Very bad day in court. And she had a little post-traumatic stress disorder from that, rightfully so. And so she was seeing a therapist. And the therapist that she was talking to said, you know, you need an outlet for your PTSD. So she started a blog. She didn't made no attempt to make the blog private. It was a public blog. And on this blog, she started posting about her clients because she was still a public defender. Now, to her defense, she did not put the client's name in the blog, but she would put their Department of Corrections number. We all know if you take the doc number, Google it, you can find out the client's name. That's violating Rule 1.6. That's not a hypothetical situation. If the person on the other end receiving, hearing or reading the information can ascertain who the client is, then you violated rule 1.6. If you don't have the client's consent confirmed in writing. So there was the first, you know, 1.6 type of violation. But then this attorney went on to post things about her clients, about them showing up to court high or on drugs, about them lying to the judge and her knowing about it, but making false representations. So now she's got other violations. She's got, you know, failure to be honest, to tribunal, which is a violation, presenting false evidence, which is a violation, 1.6 violation. She's got the 8.4 kitchen sink rule thrown in there. So this blog post, while it may have been a good outlet for her mentally, was not a good outlet for her professionally and was in violation of the rules of professional conduct. If she wanted to have an outlet like this one, it did not have to be public. Make it private and don't put it online. Get a journal, get a pen, get a pencil, write it down your private thoughts. Keep it to yourself. No one else has to read it. We don't need validation from our peers for every little thing we do in life. This attorney was suspended for 60 days from the practice of law. The case citations are there, and there is also an ABA formal opinion that cites this case and talks about the different violations that came out of it. So this was one where we do have that rule 1.6 violation as well as other violations. The next case is regarding the Louisiana attorney, Joyce McCool, who engaged in what is referred to normally as the social media blitz. Ms.. Mccool was highly critical of two judges presiding over child custody cases in different jurisdictions because the child custody case was in multiple jurisdictions. Now, she wasn't even the attorney of the case or either of the cases. She was just the friend of the mom involved in the child custody cases. And she didn't like how the judges were ruling because there was allegations that the father was abusing the children. And so she wanted to support her friend. But how Ms.. Mccool did it was the wrong way. She took to social media. She made an online petition, blog post, Twitter messages, basically demanding and trying to influence people to intimidate the judiciary, to decide the other way on these cases and to make certain rulings, and then also to to basically have them be benched in these cases, given to someone else. The court did not take highly of this, and one of the judges had to recuse herself because she was going to be a witness. And Ms.. Mccool's disciplinary commission hearing. And two, that she felt, you know, these ex parte communications were wrong and she had to recuse herself. And so this was a violation. This was ex parte communications because. Ms.. Mccool was using an online platform to communicate with the judges outside of the courtroom proceeding and their attorneys influencing others to influence the judiciary. They were random people calling the judges quarters and judges chambers, trying to tell them to decide one way or another because of Ms.. Mccool's actions online. And it was not just one thing. It was a whole social media blitz prejudicial to the administration of justice, dissemination of false and misleading evidence, ex parte communications, all of these things is what she got sided with for online. She was disbarred from her conduct. She was disbarred too, because she showed no remorse. I think it was in her disciplinary commission hearing. She was quoted as saying that she would do it all again and she felt like she had no choice. So she was disbarred from being a lawyer because of her online social media blitz that amounted to ex parte communications and prejudicial to the administration of justice. We check our First Amendment rights at the door to those rules of professional conduct. We can be disciplined. This these weren't even her cases. She was helping a friend. We have to be very careful with what we do in our practice. Another example is Mr. Sean Conway. He's there, pictured for you. Mr. Sean Conway had a client and a judge's courtroom in Florida. And this judge, it was kind of a pattern that was coming through pursuant to the opinion that the judge would say, either waive your right to speedy trial, you go to trial in two weeks, which was very prejudicial to a lot because you it's hard to get a criminal case or criminal defense worked up in two weeks. So Mr. Conway felt that this was, you know, negating his client's rights. Wrong of the judge to do. And this was improper, the judge to do. But instead of following the normal procedures of a judicial complaint or going through the proper channels to sanction the judge or to get this conduct in front of someone to discipline or review it, he took to blog, which is a public legal blog posting in Florida area, and he was quoted as calling the judge an evil, unfair witch, saying that there was nothing honorable about her and no one should call her Your Honor, as well as other things that were derogatory towards the judge and just prejudicial to the administration of justice. Now, because it was stated or quoted that this judge was doing these things against the defendant's rights, Mr. Conway got a public reprimand and a fine, which is a very light punishment for the conduct he had. But that was only because there was some teeth behind, you know, what he was complaining about. He just took to the wrong forum to do it. He should have filed a judicial complaint or he should have filed the disciplinary action against the attorney, lawyer or judge there, but he should not have taken to the public social media forum. So wrong forum to grieve his complaints and he got sanctioned for it. If he would have done the right forum and stayed off of social media, then we probably wouldn't have seen this public reprimand or fine come down at that point. The next example here, this shows that even if you think it's private and you're sending it only out to your friends, that it can still have repercussions on your job. This is just a caution to all of our in-house lawyers, too, because this is an in-house attorney case. This was a corporate lawyer, thought that only her friends could see a post on Facebook. So in the wake of the October mass shooting in Las Vegas, which was now a few several years ago, she wrote a comment thread discussing the deadly attacks of the concert goers. She wrote on her Facebook, which she thought was just going out to her friends. But remember, I told you anything you think is private is not private. There is nothing private online. It can be reposted, retweeted. It can go viral within seconds. This corporate lawyer unfortunately put I'm actually not even sympathetic because country music fans are Republican gun toters. This was not a statement to make. Did she have political free speech? Yes, she did. Did her company incorporation have rights to fire her? Yes, they did. Did this violate their policies? Probably so. Did it violate the rules of professional conduct? Maybe. But in this case, it was more of a firing situation that we saw. She was fired. It was quoted to be an egregious career killing, misjudgment on social media. The company made her make a public apology, but she was still let go anyway. The post now becomes kind of like a meme or, you know, her picture and face. And the tweet was recopied and reposted put everywhere in social media going viral. Just think, do you want this to be you? Do you want something you post and your face to go viral like this on social media? Usually the answer is no. So we have to be very careful with what we post and put online. This was also another attorney who thought it'd be funny to use social media to his advantage. This was an attorney in Illinois who was losing to an opposing counsel in domestic divorce cases. Now, normally, okay, you lose 1 or 2, but guess this lawyer was losing several, was not liking this. Opposing counsel wanted to get back at her for beating him in court, even though he just probably could not accept that his own defeat or that maybe he should step up his lawyering and practice. But this lawyer thought it'd be good to make a fake dating profile. He made a fake dating profile for for his opposing counsel using his opposing counsel's picture from her law firm website. He did this on Match.com. He also subscribed his opposing counsel to several magazine subscriptions. Diabetes, obesity, like pig one different ones like that put false information in her fake dating profile that she was divorced when she wasn't, that she liked race cars, NASCAR, Jimmy Buffett like different things like that when she didn't and posted it. How the opposing counsel found out about it because this attorney thought he could do it anonymously and no one would find out. Opposing counsel found out about it through her clients. She was sitting in an attorney client meeting, and one of her clients said, Hey, I saw you on Match.com. She was obviously dumbfounded, looked it up, started to investigate it, even asked her opposing counsel because she had an idea it was him if he had done it. He denied it. She filed a police report and they started investigating and they traced the IP. Working with Match.com platform back to the opposing to this male attorney's computer. And not only was it his computer, it was his work computer at his law firm. So he used his work resources to do this. Needless to say, his law firm cooperated with the police. He was fired and he was suspended for six months indefinitely until the court felt that he could come back to the practice of law. He was also found guilty of a misdemeanor for disorderly conduct and had to pay the female attorney in the civil claim cash settlement of $100,000. Last I checked, the attorney has not returned to the practice of law. You are not anonymous online. We do not need to be making fake dating profiles or false comments or hurting our opposing counsel online as well as judges. We need to remember that. If there are any prosecutors out there, do not post evidence of your cases online. And unfortunately, this prosecutor didn't even post the picture. It was a police officer she was posing with holding evidence from a case with the caption, you should take the plea. Now, she did not post it, but she liked it. Remember I said anything you like, endorse, retweet becomes as if you posted it yourself. That is unfortunately what she did. She liked, endorsed, retweeted a picture that a police officer posted of her holding evidence in a case and with the caption, You should take the plea. The district attorney's office in Pennsylvania, where she was located, said this is contrary to our protocols in respect with handling evidence, and it is a personnel matter. This is the photo that was posted which she liked and endorsed online. So it now became as if she posted it herself. This may have been maybe prejudicial to the administration of justice, but the real story here, too, is that she was fired from her job. You can get fired for this type of act and you can also have disciplinary case brought against you. You have to watch out for both. Our last example in this section before we move on to responding to negative reviews online. This is actually one for any lawyer about being honest to the tribunal. We need to rule one excuse me, Rule 3.3 prohibits false statements to the tribunal by lawyers. We cannot lie to the judiciary. We cannot lie in court for our clients, present false evidence or lie about anything we tell them. So this was a young lawyer who went into court, asked for a motion for extension of time, saying her father had died and she was grieving with her family and just couldn't get the motion done in time. Judge granted her a 30 day extension or extension of time to get it done. And the judge felt sorry for her and wanted to check up on her. Being a young lawyer. You know, he just had a special place in his heart for that. And so he checked up online or looked her up on Facebook to see how she was doing. And the judge, to the judge's surprise during this time, where he granted the extension of time, there was drinking, posted, friends posted, no mention of a deceased father, no mention of any grieving and just partying, partying, partying. She was on vacations, different things like that. Well, the young lawyer didn't get the motion done in time, went back in to ask for a second extension of time. The judge disclosed what he'd seen in his own research and declined her request for a second motion for extension of time and contacted the senior party partner at the Young Lawyers law firm to tell him of the conduct that his young lawyer was and how it's not acceptable in his courtroom. We had some violations come out of this prohibits false statements to the tribunal, everything else, and to I don't know if the judge turned her in, but it did go viral. And this was a case that came out of it. But she was taken off the case and probably disciplinary actions within her law firm as well. We need to be honest. Remember, you may think your profile is private. It's not. People can find it through friends and friends, through linking, through different things. They can find it. We need to make sure we keep that in our heads. We are not anonymous online no matter what we think. Going on to our next topic of today, responding to negative online comments. How many of you have ever had a comment posted on you or your abilities as a lawyer that was negative saying you weren't a good lawyer or you didn't do well on a client's case or something to that effect. And then when you see that comment either posted on Google reviews or Avvo or Avvo or any of those types of platforms, you want to respond, you want to set the record straight, you want to tell your side of the story. That is what you should not do. Because in responding to those, we have to remember our duty of confidentiality. Remember, we can't talk about anything. We can't even admit someone's our client without their consent confirmed in writing. And there is no exception to responding to negative reviews within Rule 1.6. So we cannot tell our side of the story. We cannot say, Oh, that didn't happen. This is what happened. That's giving over confidential information. We cannot talk about a client's case or say we represent someone or even acknowledge it without the client's consent confirmed in writing. We need to remember that there is no exception that says, Hey, you can defend yourself online. If someone writes a negative review about you and you may think, well, it falls under rule 1.6 B five. Nope, it doesn't. A negative review is someone's opinion. It is not a proceeding. You are not establishing a defense to a claim against you. And it is not a controversy where you need to establish a defense. There is opinions. Aba formal opinion 4.96 tells us that that we there is no exception for negative reviews online. We still have to keep client confidences. So we do not want to respond with our side of the story. We do not want to set the record straight. We want to fight every urge we have to defend ourselves and to defend what someone's saying against us. And we should really just sit back. We should sit back and do nothing. But a lot of lawyers cannot do that. It is something innate in our nature to where we just want to push forward and we just want to do those things. But with a little ingenuity, we can respond to a bad review without disclosing confidences. Now, how do we do this? We have to be very careful and very restrained and very proportionate in how we respond. And there have been set forth through that opinion, through the Bar Association or through the ABA, ABA Opinion, formal Opinion 4.96 there at the bottom of the screen, I just split back to in front of you of how we can make a very proportioned, restrained response without violating Rule 1.6. And there are three options for that. We can respond that due to our ethical obligations, we're prevented for providing a detailed response. We can state that we reviewed the comment and would be happy to discuss this via phone if the person posting it. If they're an anonymous poster, we can say if you let us know who you are, we happy to call you or you can call us. We can talk about this privately. You can just say, you know, I'd love to talk to you about this. Give me a call. That's not revealing confidences. You're not saying the client's name. You're not saying who you assume it is. You're not saying any information. Or you could also respond if you know the poster's name saying you can state you reviewed the comment and that you'll be reaching out to him or her shortly. That's if they provide their name. Again, we don't want to say the name unless they give us consent. Those are three restrained, proportionate responses. Now, do they alleviate that need to defend ourselves? Maybe not. But do they keep you out of ethical trouble? That they do. And that is the most important thing. The other thing we can consider is contacting the search engine platform and asking them to remove the post. You can also counter it with a positive review, but I will caution on that one because the more attention a post gets, the more it moves up on the Google search results. So if you just want to bury it, don't give it any attention. I would also caution you to if you're going to reach out to the search engine, platform or website, that when you ask them to take down the post, they're probably going to ask why you cannot reveal client confidential information to that. Why? Question Because the platform is a third party. You cannot tell them that they're your client, that this is really what happened. You cannot do those things you couldn't do online because we can't disclose this to third parties. So most likely, more likely than not, the search engine one side platform is not going to remove it because you're just going to have to say, well, I just know it's false and you can't give me more information. You can't say why, who you don't want to you don't want to get into rule 1.6 violations, asking that as well. So the best thing is to do one of the three neutral responses here on the screen in front of you. I flip back to it or just let it go, give it no attention and let it bury itself on the Google search. The more attention you give, the higher up, the less attention, the lower down. Let's take some examples of people who did not take this advice and decided to defend themselves. This first example we have here is a lawyer who responded to online reviews of former clients. The lawyer revealed criminal charges about the clients, revealed that the client wrote a bounced check and revealed unrelated felonies. So what had happened here was the client went online and didn't like the services or was complaining about them. And this lawyer did one of the things I said not to do. They wanted to defend themselves. They wanted to set the record straight. They wanted to get it out there off their chest. It was infuriating within them. They didn't do one of the three neutral responses. So what happened when they posted all this information? They violated rule 1.6. This attorney was suspended for six months for violating Rule 1.6. Confidentiality is the hallmark of our profession, and disciplinary commissions do not take lightly to violation of it, especially when it comes to online. Because once this attorney put all that out there, it cannot be taken back. You don't know who's read it, who's seen it, who's cut and pasted it, who's put viral reputations could be ruined. It is not taken lightly. We do not want to set the record straight or defend ourselves. Only those three neutral things are what we should focus on. This was another lawyer who actually manipulated clients. He said, If you don't give me positive reviews, I'll release your confidential information. So basically threatening them. They trusted him. They gave him confidential information. He said, okay, now go write me a positive review or I'm going to release your confidential information online. You can't hold a client's confidential information hostage. You cannot negotiate positive reviews like this that's making false statements. Now, this lawyer did have other violations. This was one of like 8 or 9 that he had against him. And he was actually disbarred from the practice of law. Again, this was one of several, but he was disbarred for this conduct. Another one where we had this this attorney attorney had a negative review posted about them online and they decided to respond with which is quoted there. I dislike it very much when my clients lose, but I cannot admit positive facts for for clients when they are not there. I feel badly for him but his own actions and beating up a female coworker are what caused the consequences. He is now so upset about confidential information. This attorney was okay a little bit. Maybe we could have stopped at a dislike it. When my clients lose, they could have said I'm happy to talk to you. Outside of this. Maybe you wouldn't have as bad of a violation. But they went on to give that confidential, really confidential information, basically calling out the client as being guilty for beating up a coworker. And so this attorney drew a 1.6 violation in Illinois. Maybe they have bigger fish to fry at the time, but he only got a public reprimand in 2014 for the conduct. The last example in this series, a lawyer responded to multiple online criticisms, and how they responded is they didn't set the record straight. Not really. They just took information confidential and sensitive and put it out there online against the clients. Again, we do not respond with our side of the story. We do not respond in malice or anger or to set the record straight, we respond in a neutral, proportioned way. Not mentioning the client's name, not mentioning details about the case, not mentioning anything like that. Those three things from that earlier slide is all that you should respond with when it comes to posting and re re excuse me, posting and responding to online comments going on to non attorney risk because we all have to supervise our non attorney employees. So just something to cover here because and also to your non attorneys you can fire them for violations so you really need to train them but you really don't want them to do stuff that, you know, you're just going to be harmful to your practice or get you in trouble because we are responsible for what our non attorneys do. And if they violate the rules, we violate the rules. So we always need to remember that. So disciplining them, making sure they understand their obligations so you don't have to discipline them or fire them, but also making them realize that they can be let go or they are going to be subject to discipline if they do not adhere with the rules, if they do not adhere with certain things. And this may mean, again, they do have First Amendment, which only protects against government interference for their speech. But that speech, if it affects the company, the clients or violates the rules, can have consequences for them in the workplace. Now, there are four categories which you cannot fire someone for posting for. Those categories are on the screen. Obviously, if it's truthful statements about working conditions, comments of interest of joining or supporting a union, contacting a lawyer for informational workplace rights, and then either demographic information to race, sex, religion, those as well. So those are areas where we cannot really fire them for what they post. But again, consult an employment lawyer or a labor lawyer. If you're having issues with a non attorney in your firm or if they're posting stuff and you want to know if it's actual or not, I would recommend consulting someone who does that, specializes in that in their practice. But again, too, for a non attorneys, we need to make sure that they are aware that, yes, the First Amendment does is protect free speech from government interference. It doesn't say from private interference and that there are company policies and that there are these rules of professional conduct which we need to train them on to where they need to adhere to them to within this law firm setting. Because if those rules of professional conduct are violated, you as the attorney, are going to be held responsible under Rule 5.5. So you need to make sure they adhere to that or there would be consequences. Social media also becomes part of your law firm or company's brand or image, depending on where you're working. And as you know, it takes a lifetime to build a reputation. And if you have an employee, a non-lawyer or even lawyer out there bashing the company or putting out stuff that is getting backlash, it's going to come back on your law firm or company. So having policies and protocols put in place, educating your non attorneys on the ethical rights or on the. Ethical standards they have to meet is very, very important when it comes to anything. So let's go through some examples. The first one here, this was actually a candidate who was applying to a company, not necessarily a law firm, just a company. And I do recommend what this company did as part of the background or check. This company went out and reviewed the candidates, basically social media. Now, some of you may do this already, and I highly recommend you do it if you don't. But looking at a candidate's social media, what is out there publicly? Now, obviously, don't friend them or do anything like that. If it's private, you can't see it. And that's going to have to be the way it is. Don't have someone else do it. What you can't do, someone else can't do either. Or you violate the rules. But they went out there and saw what was public. And they did see that when this prospective employee candidate was in graduate school, he and a bunch of friends nicknamed their house the all, and then they had a cuss word in there about females, a very derogatory word, a loud house. It was meant as a joke. And many people on campus knew about it and they called it this house and everyone thought it was a joke. However, this companies and it was actually a law firm, if I remember correctly, did not think it was funny, especially now since this person was playing in professional world and if they found it, their clients could find it and how that backlash could come back against the company. And so and they said that, you know, years may have passed, but it's still out there and this person still endorse it didn't try to separate himself from it, still had it out there to be found. And they felt that, you know, past. Actions can affect future passed judgment is a good indicator of future behaviors, is what the company said. And this candidate lost the job offer. So this is also something for you as an employer of non-lawyers and employer of even lawyers, look up lawyers, social media platforms, too. You never know what you're going to find. We're not all pristine and, you know, clean, you know, in our backgrounds and history. But we need to clean up too. It's a reminder that we ourselves need to clean up our social media. Anything you like, endorse, retweet as if you owned it. As if you put it out there. Disconnect ourselves with stuff that violates the rules, Disconnect ourselves with stuff we don't want our clients to see. Take that time. There are actually companies who make a living on cleaning up people's social media so that they can get a job or that people won't find stuff, or that they're going to make those disconnections based on ethics. If you have trouble with that or your employees do, you can always hire outside resources to help you with that as well. This was another one. This was a recent college graduate, held a degree in information management. The candidate was 22 years old and part of social media generation. So posted, tweeted everything. Well, this person tweeted, Cisco just offered me a job. Now I have to weigh the utility of a fatty paycheck against a daily commute to San Jose and hating the work. Don't know if this person didn't know. Think that people at Cisco actually read the Internet, but they did. And an associate including someone in HR, Reddit, the hiring manager and they said you know, who is your hiring manager? I'm sure they'd love to know you're going to hate the work here. We here at Cisco are well versed or versed in the Web. The employee was named and got a lot of backlash when the tweet blew up and went viral on social media. She got the nickname Cisco Fatty and the job offer was withdrawn, obviously, because the backlash and people at Cisco not being happy with their comment. And she tried to save face and say that she turned down the offer, but Cisco really withdrew it just because the backlash, the hate she was getting on social media. So we need to watch what we say because we may think our employer is not reading it or that it's private or it's anonymous or we can do that. You can. But then the employer has the right to withdraw offers as well, kind of something like this. These are just some fun examples, not necessarily pertinent or focused in the practice of law, but just about, you know, what Non-attorneys do, because they don't think about the rules of professional conduct like we do. They don't think in that sometimes professional capacity, 24 hours a day, seven days a week, and we need to remind them of that. This was a candidate secured a job at a local pizza restaurant. Prior to starting the job, the candidate tweets you. I start this passwords their job tomorrow with all thumbs down really bashing the place again lawyer friends thought it was funny employer to not employer said sorry no you don't start the job tomorrow I just fired you. Good luck on your no money, no job life. Employers read it, Employers check up on it. Law firms use should to attorneys. We should too. We should check up on our lawyers and our non lawyers on social media to see what they're posting putting out there because it ultimately comes back on our brand, comes back on our law firm and our image. If you're in house, it comes back on your company as well. So you really need to make sure you know what's being put out there. This was an interesting one. Senior director of communications of all people, you'd think they'd know about social media and communications and doing what's right and ethical. This was one where it was a personal capacity. Thought it would just go out to her friends. No one else. And she tweeted, Going to Africa. I hope I don't get Aids. Just kidding. I'm white. You can see that this was reposted, retweeted, went viral before she posted this, going onto the airplane before she landed in Africa. This was viral and her company had already fired her. The tweet went viral so fast that a numerous that the number one worldwide trend on Twitter before the plane landed, there was even a hashtag created for it. Hundred she only had 170 followers when she tweeted it, thought it would just go out to the 170 people. Well, one of those was a tech writer who retweeted it to his 15,000 followers who then they retweeted it out to their followers. The hashtag was pound has just seen landed yet, you know, calling for her to be fired. She was interviewed and stated that she was no way anyone thought it was very literal. But what you think is a joke, social media may not think as a joke. What you think you know, the tone and inflection does not come across when you're typing. That's only something in person. So people took this literally and it is just not something you say. Joking or not joking. We have to be very careful with what we put out there. This was another communications director. This one, again, I don't know why communications director decided she didn't like President Obama's two daughters or wanted to talk about them. She posted a Twitter post saying, I get you're both in your awful teen years, but you're part of the first family. Try showing a little class. Then she put it again. Post again. Act like being in the White House matters to you. Dress like you deserve it. Not. Not a spot at the bar. Company again. Backlash came back from a company. She had a First Amendment right to say these things. But again, we checked that to the rules of ethics. We check that to company policy. We need to remind our non lawyers of this that we work with strongly suggested that she make a formal apology and a forced resignation. She did make a formal apology to the President Obama's daughters and then talked about how she reflected on it, but again, did not save her from her losing her job. We also need to watch out, too, for different things. This was also another non-lawyer type of scenario, but not in a law firm. They just took a screenshot of something in their work environment. This was actually in a room and then posted it and she wasn't fired for posting the picture because there was nothing confidential in the picture, but just for being indecent and insensitivity, because this was someone's family, this was some real person that they would see this. And just the insensitivity of seeing a scene like she posted and here was the scene that she posted. And so the hospital at the time found this very insensitive and fired her for violating company policy. So, again, just reminders for our non lawyers we work with and that work in our company that their social media can affect their job. This is one of the last examples in this scenario before we get into corporate attorneys in our last few minutes. This was a Taco Bell chain. He took a competition, literally. They had to post an internal contest, encourage the first bite, you know, make some video or something, you know, taking a first bite of these new tacos. This person posted this picture virally licking a stack of tacos while he was at work, tagged the company in it, a violation of social media policy to tag the company did not win the contest. A lot of people had backlash from this and social media about how gross it was. Don't eat at Taco Bell, you know, all of those things. So again, what you think is a joke, what you think is funny, make sure that you don't violate company policy or that you train your non illegal assistants and non legal attorneys to not violate company policy because this one sure didn't. If you saw that photo, would you want to eat at that Taco Bell? Just think about that. Now, of course, there are safe zones. Again, we talked about those for years. You can talk about this one was a Chipotle employee tweeted about, you know, the low wage that he was getting as a crew member. The company fired him, saying it was a disparaging, false statement, you know, against company policy. He was actually protected because this is one of those areas. You can talk about the settlement. And this was kind of humorous. All he asked for was a lifetime free Chipotle for a lifetime. He didn't want his job back. And then some extra like, you know, money compensation on top of that. Yes, he still took the lifetime supply of Chipotle because he still liked the food there. He just didn't want to work there anymore. But again, this is one of those protected areas we talked about in those four categories. Coming up on our last about 3 to 5 minutes here of our seminar today. We do have ethics, special in-house counsel considerations if you are an in-house attorney. These are things you would may want to consider. And even if you're not an in-house attorney like, say, at a company like Rolls Royce or Johnson and Johnson or, you know, any big Pfizer or any big company like that, these are things you may want to implement in your own law firm practice, because a law firm, whether we like it or not, is also a company or corporation or LLCs or PCs. We run and operate lawyers as well as non-lawyers. We have employees, we have generate money. Our product is our legal advice, our services. So we also want to do these for your law firm too, not just, you know, in-house in a company, but also for your law firm. And if you have a general counsel or the managing partner, these are things you would want to consider. You obviously want to update any social media policies. You want to identify someone who is solely responsible for the company or speaking on behalf of the company When it comes to social media, for the company or law firm itself, that means you have a media relations type of person. They may keep up the website. If you have a blog post for your law firm or company, they would do that. They would respond to any negative backlash, make sure they're doing in that restrained, proportionate manner. And you would need to train your lawyers and non-lawyers in your company of what they can and cannot do, that they don't speak on behalf of the company, that they can't post or tag the company, or if you don't even want them saying they're associated with the company. There's different things you can put in that company policy manual to help protect the brand, the image and the company. You would also need to articulate different things, put privacy settings. Maybe if you issue laptops to employees, lawyers and non-lawyers, educate them, making sure that their free speech is not substantially burdened or violated. But, you know, it's just for the good of the company having that fine line. Consulting and employment labor lawyer in that aspect would probably be a good thing too, if you're not really sure on those types of issues and just having a clear vision on your company or law firm's ethics. Obviously, if it's a law firm, then we have the rules of professional conduct there to guide us. If it's more of a company setting, then you just need to have that clear vision. So kind of summarizing all this and some takeaways from today's presentation, obviously we need to use our ethical hat online at all times, user privacy settings when we can, but know that nothing you put out there is ever private. It can go public, it can go viral. We've seen cases of lawyers. We've seen cases of non lawyers. We need to watch those things, watch creating an unwanted attorney client relationship. We talked at the beginning of the seminar as well as the unauthorized practice of law. We need to also not set the record straight when it comes to those negative online comments about us and show proportion restrained responses and those neutral ways to not violate Rule 1.6. We also need to watch out for our non-lawyers in our companies or in our law firms and make sure they don't violate the rules of ethics and that they keep with our company policies, monitoring accounts, having a point person for social media, having a point person for things and training our employees is always a good and positive thing. So take these things away with you. And if you ever have any questions, my contact information is on the screen in front of you. You can also reach out to the platform and they know how to get in touch with me. If you have any questions on today's seminar and I hope everyone enjoyed it and I hope you stay safe and ethical on social media.

Presenter(s)

CS
Cari Sheehan
Assistant Clinical Professor
Indiana University Kelley School of Business – Indianapolis

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                                                                  Credits
                                                                  • 1.0 ethics
                                                                  Available until

                                                                  December 31, 2026 at 11:59PM HST

                                                                  Status
                                                                  Approved
                                                                  Credits
                                                                  • 1.0 ethics
                                                                  Available until

                                                                  June 17, 2025 at 11:59PM HST

                                                                  Status
                                                                  Available
                                                                  Credits
                                                                  • 1.2 ethics
                                                                  Available until

                                                                  June 29, 2024 at 11:59PM HST

                                                                  Status
                                                                  Approved
                                                                  Credits
                                                                    Available until
                                                                    Status
                                                                    Not Offered
                                                                    Credits
                                                                    • 1.0 ethics
                                                                    Available until

                                                                    June 17, 2025 at 11:59PM HST

                                                                    Status
                                                                    Available
                                                                    Credits
                                                                    • 1.0 general
                                                                    Available until
                                                                    Status
                                                                    Pending
                                                                    Credits
                                                                    • 1.0 ethics
                                                                    Available until

                                                                    June 17, 2025 at 11:59PM HST

                                                                    Status
                                                                    Available
                                                                    Credits
                                                                    • 1.0 professional conduct
                                                                    Available until
                                                                    Status
                                                                    Unavailable
                                                                    Credits
                                                                    • 1.0 ethics
                                                                    Available until

                                                                    June 18, 2024 at 11:59PM HST

                                                                    Status
                                                                    Approved
                                                                    Credits
                                                                    • 1.0 ethics
                                                                    Available until

                                                                    June 22, 2026 at 11:59PM HST

                                                                    Status
                                                                    Approved
                                                                    Credits
                                                                    • 1.0 ethics
                                                                    Available until

                                                                    January 16, 2026 at 11:59PM HST

                                                                    Status
                                                                    Approved
                                                                    Credits
                                                                    • 1.0 ethics
                                                                    Available until
                                                                    Status
                                                                    Pending
                                                                    Credits
                                                                      Available until
                                                                      Status
                                                                      Not Offered
                                                                      Credits
                                                                        Available until
                                                                        Status
                                                                        Pending
                                                                        Credits
                                                                          Available until
                                                                          Status
                                                                          Not Offered
                                                                          Credits
                                                                          • 1.0 ethics
                                                                          Available until
                                                                          Status
                                                                          Approved
                                                                          Credits
                                                                          • 1.0 ethics
                                                                          Available until

                                                                          June 30, 2024 at 11:59PM HST

                                                                          Status
                                                                          Approved
                                                                          Credits
                                                                          • 1.0 ethics
                                                                          Available until
                                                                          Status
                                                                          Unavailable
                                                                          Credits
                                                                          • 1.0 ethics
                                                                          Available until

                                                                          June 17, 2025 at 11:59PM HST

                                                                          Status
                                                                          Approved
                                                                          Credits
                                                                            Available until
                                                                            Status
                                                                            Not Eligible
                                                                            Credits
                                                                            • 1.0 ethics
                                                                            Available until

                                                                            June 17, 2025 at 11:59PM HST

                                                                            Status
                                                                            Available
                                                                            Credits
                                                                            • 1.0 ethics
                                                                            Available until

                                                                            June 16, 2028 at 11:59PM HST

                                                                            Status
                                                                            Approved
                                                                            Credits
                                                                              Available until
                                                                              Status
                                                                              Not Eligible
                                                                              Credits
                                                                                Available until
                                                                                Status
                                                                                Not Eligible
                                                                                Credits
                                                                                  Available until
                                                                                  Status
                                                                                  Not Offered

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