Ethical Considerations When Using Social Media

1
Ethical Considerations When Using Social Media

• Kimberly C. Metzger
• Ice Miller LLP
• James Dimos
• Frost Brown Todd LLC

2
The future is already here its just not
evenly distributed. William Gibson
3
What Well Cover

• Web 2.0 and Social Media A Basic Taxonomy
• What is Your Internet Presence?
• Why Lawyers Are Using Social Media and Web 2.0
• Legal Issues and Ethics for Web 2.0 Basic
  Rules
• Ethical Concerns for Common Scenarios
• Conclusions and Suggesting a Few Action Steps

4
Key Web 2.0 Concepts

• User-generated Content
• Internet as application platform
• Multiple channels
• Global
• Third-party Hosting / Loss of Control
• Social / Community

5
What is my current online presence?
6
(No Transcript)
7
Do I want an online presence?
8
(No Transcript)
9
WHY HAVE A WEB PRESENCE?
10
Why Have A Web Presence

• 1 To learn
• 2 To network
• 3 To be a better communicator
• 4 For the profession
• 5 Fun

11
The goals of business development efforts

• Increased visibility
• Developing a good reputation
• Becoming trusted
• Getting clients

12
Traditional ways to develop business

• Bar associations
• Trade groups
• Clubs
• Alumni groups
• Cocktail parties

13
Traditional ways are limited by time and space
14
Social media is less limited by time and space
15
Objectives of social media

• Connection
• Conversation
• Credential building

16
What Are My Choices?
17
LinkedIn
18
(No Transcript)
19
(No Transcript)
20
Facebook
21
(No Transcript)
22
(No Transcript)
23
Twitter
24
(No Transcript)
25
(No Transcript)
26
Blogs
27
(No Transcript)
28
Some More Web 2.0

• MySpace
• Martindale
• Slideshare
• Legal Onramp
• Legal Zoom
• Bid

29
(No Transcript)
30
(No Transcript)
31
(No Transcript)
32
What can I do when I dont like what is being
said about me online?
33
Communications Decency Act

• Section 230 of the Communications Decency Act,
  passed in 1996, is perhaps the most relevant to
  online defamation. It provides "No provider or
  user of an interactive computer service shall be
  treated as the publisher or speaker of any
  information provided by another information
  content provider".
• Effectively, this section immunizes both ISPs and
  Internet users from liability for torts committed
  by others using their website or online forum,
  even if the provider fails to take action after
  receiving actual notice of the harmful or
  offensive content.

34
Communications Decency Act

• There are court cases and other actions have led
  to ISPs being forced to remove content from their
  servers and even provide personal details
  including the IP address of known offenders.
• Also some ISPs will act quickly to remove
  defamatory content from their servers out of
  fairness or liability concerns.

35
What Do The Rules Say?
36
REGULATING SOCIAL AND PROFESSIONAL NETWORKING
SITES

• As with other aspects of the law, technology may
  outpace the drafters of laws and rules.
• Indiana has provided general guidance in the
  7-series of the Indiana Rules of Professional
  Conduct.
• The Court amended these rules on October 14,
  2010, effective January 1, 2011.

37
A GENERAL OBSERVATION REGARDING THE NEW RULES

• The amendments appear to reflect a change in rule
  writing philosophy.
• Instead of detailed prohibitions, the Court has
  made more generalized statements of what is
  permitted or prohibited.
• Should provide more flexibility and guidance in
  keeping up with technology.

38
RULE 7.1 COMMUNICATIONS CONCERNING A LAWYERS
SERVICES

• This is a new rule as 7.1 was previously
  reserved.
• A lawyer shall not make a false or misleading
  communication about the lawyer or the lawyers
  services. A communication is false or misleading
  if it contains a material misrepresentation of
  fact or law, or omits a fact necessary to make
  the statement considered as a whole not
  materially misleading.

39
RULE 7.1 COMMUNICATIONS CONCERNING A LAWYERS
SERVICES

• As with other amendments, the details are located
  in the comments.
• Cmte 1governs all communications about a
  lawyers services, including advertising
  permitted by Rule 7.2. Whatever means are used
  to make known a lawyers services, statements
  about them must be truthful. (emphasis added)

40
RULE 7.1 COMMUNICATIONS CONCERNING A LAWYERS
SERVICES

• Cmt 2Notes that truthful statements that are
  misleading are also prohibited.
• Sets forth a long list of the types of statements
  that may be truthful but still misleading.
• Similar to the list set forth in the old Rule 7.2
  (c ) though more extensive.

41
RULE 7.1 COMMUNICATIONS CONCERNING A LAWYERS
SERVICES

• Worth noting
• Contains a claim about a lawyer, made by a third
  party, that the lawyer could not personally make
  consistent with the requirements of this rule
• Contains a representation, testimonial, or
  endorsement of a lawyer or other statement that,
  in light of all the circumstances, is intended or
  is likely to create an unjustified expectation
  about the lawyer, or law firm or a persons legal
  rights.

42
RULE 7.2 ADVERTISING

• Rule 7.2(a)--Subject to the requirements of this
  rule, a lawyers and law firms may advertise their
  professional services and law related services.
  The term advertiserefers to any manner of
  public communication partly or entirely intended
  or expected to promote the purchase or use of the
  professional services of a lawyer, law firm, or
  any employee of either involving the practice of
  law or law-related services.

43
RULE 7.2 ADVERTISING

• Rule 7.2(b)A lawyer shall not give anything of
  value to a person for recommending or advertising
  the lawyers services except
• The reasonable costs of the communications
• The usual charges of a legal services or lawyer
  referral program
• Non-exclusive cross-referral agreement with other
  lawyers or non-lawyers, if disclosed to client
• Purchase of a law practice

44
RULE 7.2 ADVERTISING

• Rule 7.2(c)Any communication subject to the
  rules must include the name and office address of
  at least one lawyer or law firm responsible for
  its content and a copy must be maintained for six
  years after its dissemination.

45
RULE 7.2 ADVERTISING

• Once again, the comments provide more detail as
  to permissible subjects of advertising.
• Comment 2 reflects the list previously contained
  in Rule 7.2(b)
• Comment 4 expressly states that while lawyers
  cannot pay others for channeling professional
  work, a lawyer can pay for such things directory
  listings, advertisements, domain-name
  registrations, sponsorship fees, etc. Lawyers
  can also compensate employees, agents and vendors
  for marketing and client-development services.

46
RULE 7.3 Direct Contact with prospective Clients

• A lawyer (including the lawyers employee or
  agent) shall not by in-person, live telephone or
  real-time electronic contact solicit professional
  employment from a prospective client when a
  significant motive for a lawyers doing so is the
  lawyers pecuniary gain unless the person
  contacted
• Is a lawyer
• Has a family, close personal or prior
  professional relationship with the lawyer.

47
RULE 7.3 Direct Contact with prospective Clients

• A lawyer shall not solicit professional
  employment from a prospective client by in-person
  or by written, recorded, audio, video, or
  electronic communication, including the Internet
  if
• The prospective client has made known to the
  lawyer a desire not to be solicited
• The solicitation involves coercion, duress or
  harassment
• The solicitation concerns within 30 days of a
  personal injury, wrongful death or accident or
  disaster
• The solicitation involves a specific matter and
  the lawyer knows or has reason to know that the
  person is represented by counsel
• The lawyer knows or should know that the mental
  state of the person solicited makes it unlikely
  that the person would use reasonable judgment in
  hiring a lawyer.

48
RULE 7.3 DIRECT CONTACT WITH PROSPECTIVE CLIENTS

• Every written, recorded, or electronic
  communication from a lawyer soliciting
  professional employmentshall
• Include the words Advertising Material at the
  beginning of any written communication and at the
  beginning and end of a recorded one
• A copy must be filed with the Indiana Supreme
  Court at or prior to its dissemination
• A filing fee of 50 must accompany the filing
• Retain a list of the names and addresses,
  including email addresses of all persons
  solicited.

49
RULE 7.3 DIRECT CONTACT WITH PROSPECTIVE CLIENTS

• A lawyer cannot accept referrals from a lawyer
  referral service unless
• A lawyer referral service operated by an ABA
  accredited law school
• Operated or sponsored on a not-for-profit basis
  by a bona fide non-profit community organization
• Operated or sponsored on a not-for-profit basis
  by a governmental agency
• Operated, sponsored or approved by a bona fide
  bar association whose lawyer referral service has
  been sanctioned by the Disciplinary Commission
• Operated by a court
• Military legal assistance offices
• A non-profit that provides lawyer referral
  services to its members

50
RULE 7.4 COMMUNICATION OF FIELDS OF PRACTICE AND
SPECIALIZATION

• May communicate that you practice or do not
  practice in a particular field of law
• Cannot claim a specialty unless obtained a
  certification as a specialist as provided for
  under Admission and Discipline Rule 30 and the
  certifying organization is identified in the
  communication
• A lawyer who is admitted before the USPTO may use
  the designation Patent Attorney and a lawyer
  engaged in Admiralty may use the designation
  Admiralty or Proctor in Admiralty.

51
What Are Issues Specific to Web 2.0?
52
FACEBOOK

• Lawyers must conduct themselves as they would in
  any other setting.
• Philadelphia Bar AssociationA lawyer having his
  assistant friend a hostile witness through
  Facebook in order to conduct witness research
  without revealing purpose of the request is
  prohibited.
• Bar Association of the City of New YorkA lawyer
  may not attempt to gain access to a social
  networking website under false pretenses, either
  directly or through an agent.
• TexasLawyer complaints about judges that are
  posted on Facebook may be improper.

53
LinkedIn

• Be cautious regarding specialties.
• Recommendation feature may violate rules
  concerning testimonials or endorsement of a
  lawyer and regarding statements or opinions
  regarding the quality of the legal services.
• Information sharing may constitute giving legal
  advice.

54
TWITTER

• Like Facebook, you need to be sensitive to
  revealing confidential information.
• Must be cautious about providing legal advice,
  establishing an attorney-client relationship, or
  soliciting legal work.
• Solicitation via real-time electronic contact.

55
BLOGS AND MESSAGE BOARDS

• Blogs may be considered legal advertising under
  the RPC.
• As with Twitter, you need to be sensitive about
  what is posted.
• Consider disabling the comment feature so that a
  dialogue is not established.
• Consider including a disclaimer.

56
How Do I Begin?
57
A Few Things To Consider

• Why you are doing it
• Creating sharp lines between mediums
• Maintaining your presence
• Ethical Fundamentals
• Privacy Concerns
• Disclaimers

58
Privacy
59
Disclaimers
60
American Bar Association

• Formal Opinion 10-457 on Lawyer Websites
• Warnings or cautionary statements on a lawyers
  website can be designed to and may effectively
  limit, condition or disclaim a lawyers
  obligation to a website reader.
• Such limitations must be reasonably
  understandable, properly placed and not
  misleading.
• Must provide a clear warning in a conspicuous
  place, in a readable format understandable by a
  reasonable person.
• The limitation can be undercut if the lawyer acts
  or communicates contrary to the disclaimer.

61
(No Transcript)
62
(No Transcript)
63
(No Transcript)
64
Ethical Considerations When Using Social Media

• Kimberly C. Metzger
• Ice Miller LLP
• James Dimos
• Frost Brown Todd LLC