Advising Clients on Social Media Use

At CLEs over the past few months, lawyers have seemed surprised to hear me suggest that the duty of competence includes advising clients to refrain from social media posts that could be detrimental to their cases.

The surprise surprises me.

Indeed, I’ve often followed up by asking whether anyone has had a client’s social media post used by the other side.  The raised hands and nodding heads tell me that it happens.

A lot.

So if we know that it’s happening a lot, shouldn’t we advise our clients not to do it?

Last summer, the ABA Journal posted Celebrity attorneys face challenges, ethical pitfalls.  One of the challenges mentioned is clients’ use of social media.  Here are two paragraphs:

“ ‘Likely you have a whole team of people doing damage control,’ says Ann Murphy, a professor at the Gonzaga University School of Law who published ‘Spin Control and the High-Profile Client’ in the Syracuse Law Review. ‘The attorney needs to be very, very careful to keep the client’s legal advice separate.’

‘Attorneys, as part of their ethical duties, must now counsel their clients on the use of social media,’ Murphy says. ‘Once it is out there, it is out there. Even if someone deletes a Facebook post—it likely has been saved as a screenshot and is of course subject to discovery,” she adds. ‘Personally, I think the best advice is tell the client that any posts about his or her case must be viewed in advance by the attorney.'”

I get it. Both the ABA Journal and Professor Murphy are focusing on lawyers who represent celebrities.  Still, look again at one of Professor Murphy’s statements:

” ‘Once it is out there, it is out there. Even if someone deletes a Facebook post—it likely has been saved as a screenshot and is of course subject to discovery. ‘ ”

That could be any client, celebrity or not.

The ABA Journal poses a “question of the week.” Each new question is followed by the  “featured to response” to the prior week’s question.

Last week’s question was What advice do you give your clients about social media? 

This week’s – How do you stay alert during long meetings or trials? – includes the featured response to last week’s social media question.  The featured response:

  • “In some ways, I take a more laissez-faire approach than many attorneys: Yes, I would love it if my clients would avoid social media, but at the end of the day, they’re going to do what they want to do. If they were great at heeding sensible advice, they probably wouldn’t have ended up in my office in the first place. I ask them to think before they post. I ask them to review their privacy settings. I ask that they avoid posting things directly related to the case at hand. And then, I just cross my fingers that the guy on trial for trying to strangle his girlfriend doesn’t post a meme about strangling one’s girlfriend.” (emphasis added)

The advice in bold?  Seems pretty simple.

Not only that, when we know that the other side is looking, it’s advice that competent lawyers provide.

Social Media

 

 

 

 

Five for Friday #92: I don’t wanna lose you now . . .

Welcome to #fiveforfriday #92!

So, my first question today is “what was wrong with us in ’92?”

I am referring to the halftime “entertainment” at the 1992 Super Bowl.

Super Bowl XXVI was played in Minneapolis.  Washington drubbed Buffalo in a boring game.  I don’t have a specific recollection of the halftime show, but it must have been even more boring than the game.  The theme was “winter” and the “Winter Olympics.” Here’s the line-up:

  • dancers celebrating winter;
  • Winter Olympic medal winners Dorothy Hamill & Brian Boitano skating on sheets of Teflon (the game was indoors);
  • The University of Minnesota Marching Band; and, for the closing act,
  • Gloria Estefan.

Umm…..

Archer

THAT is what passed for entertainment in 92??? It’s miracle that there was a Super Bowl XVII!

As an aside, loyal readers know that I preach competence.  Well, even taking the relative competence of the halftime acts out of the discussion, the program’s internal structure demonstrates an utter LACK of competence. What kind of presentation whose theme is “winter” features a closing act whose band is the Miami Sound Machine?!?!?

Which brings us to this week.

This season, the game returns to Minneapolis, with Super Bowl LII scheduled to be played outdoors in the gleaming new U.S. Bank Stadium.  Likely the Pittsburgh Steelers against a sacrificial lamb from the NFC.  And guess what was announced earlier this week?

Justin Timberlake will headline the halftime show.   Talk about competence!!!!

A few weeks ago, I used this space to confess I’m a Swiftie.  Here’s another right hand on a cold one confession: I’m a big fan of JT.

I was in my car when I heard the Super Bowl announcement.  Immediately, I scrolled to Mirrors.  If my nascent karaoke career ever gets off the ground, Mirrors might become my go-to song.  It’s the perfect karaoke set-up:

  • great beat for the audience to snap their fingers to;
  • everyone will know & sing along to the chorus, thus drowning out my voice; and,
  • that part at the end where the chorus is sung without any instruments.  I love when that happens in a song. I haven’t finalized the choreography yet, but that’s probably when I’ll point the mic at the crowd and have you sing along.

Critical: I’ll need backup singers.  You know, for these parts:

  • (me) It’s like I’m a mirror 
  • (backups)   oh oh   
  • (me) My mirror staring back at me
  • (backups) oh oh                                                                                                                             

Consider this an open casting call.

Onto the quiz!

Rules

  • None.  Open book, open search engine, text-a-friend.
  • Exception:  Question 5.  We try to play that one honest.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to michael.kennedy@vermont.gov
  • I’ll post the answers & Honor Roll on Monday
  • Please don’t use the “comment” feature to post your answers
  • Please consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday

It’s Celebrate Pro Bono week. So, this week’s questions focus on the pro bono rules.

Question 1

How much pro bono work do the rules encourage Vermont attorneys to provide per year?

  • A.    A reasonable amount
  • B.    50 hours
  • C.    60 hours
  • D.    A meaningful amount

Question 2

True or false: the rules exempt government & non-profit attorneys from the pro bono expectation.

Question 3

Client retains Lawyer in a divorce.  Client agrees to pay Lawyer an hourly fee.  The fee agreement is reduced to a writing that is signed by Client.

The matter ends with a final order.  By then, Client has paid less than 10% of the total fee and owes Lawyer for approximately 60 hours of work.  Lawyer writes off the bill.

May Lawyer claim the 60 hours as pro bono?

  • A.    Yes, because Lawyer did not get paid.
  • B.    Yes, as long as Lawyer does not continue to try to collect the bill.
  • C.    Yes, but cannot claim the hours if Client decides voluntarily to pay.
  • D.    No.

Question 4

Which section of the rules is relaxed for lawyers who do pro bono work at short-term legal services programs sponsored by non-profits or government agencies?

  • A.   The trust accounting rules
  • B.   Rule 1.1 and the duty of competence
  • C.   Rule 1.6 and the duty of confidentiality
  • D.   The conflicts rules

Question 5

At various live quizzes, I’ve used questions related to the ethics of P2P filing sharing and the legal battle between Napster & Metallica.

Your task: name the movie in which Justin Timberlake played Sean Parker, the co-founder of Napster.

There’s a hint in the tags.  And, here’s a bit of the dialogue:

Sean Parker: Well, I founded an internet company that let folks download and share music for free.
Amy: Kind of like Napster?
Sean Parker: Exactly like Napster.
Amy: What do you mean?
Sean Parker: I founded Napster.

 

 

 

 

 

 

So A Lawyer & Judge Are Facebook Friends . . .

So a lawyer & judge are Facebook friends.

So what?

The ABA Journal has the story of an appellate court’s decision that a Facebook friendship with a lawyer, without more, is not a sufficient basis to disqualify a judge.   The order is here.

This makes sense to me.  As with almost everything tech-related, I try to use analogies to non-tech stuff.  For example, if you learned that a lawyer who regularly appeared before a judge belonged to the same health club, or went to the same church, or was in the same law school class as the judge my guess is that you wouldn’t reflexively yell “conflict! disqualify the judge!”

No, you might ask something as simple as, “do they actually know each other? If so, how well? Do they do stuff together?”

In my view, Facebook is no different.  Florida’s Third District Court of Appeal agrees. (there’s no “s” – maybe the court only hears one case at at time).  The opinion presents a fantastic analysis of what it means, if anything, to be Facebook friends with someone.

Here are my favorite paragraphs from the ABA Journal’s post.  They include a quote from the opinion.

“Though a Facebook friendship may have once given the impression of a close friendship, that’s no longer the case, the Third District Court of Appeal said in explaining its disagreement with the other appeals court. Facebook uses data mining and network algorithms to suggest potential friends, and many Facebook users have thousands of friends, the appeals court said.

“ ‘To be sure,’ the opinion said, ‘some of a member’s Facebook ‘friends’ are undoubtedly friends in the classic sense of person for whom the member feels particular affection and loyalty. The point is, however, many are not. A random name drawn from a list of Facebook ‘friends’ probably belongs to casual friend, an acquaintance, an old classmate, a person with whom the member shares a common hobby, a ‘friend of a friend’ or even a local celebrity like a coach.’ ”

Ab, yes. A local celebrity.  Like a coach.  Music to my ears.

Social Media & Legal Ethics

The Washington D.C. bar recently released Ethics Opinion 371 – Social Media II: Use of Social Media in Providing Legal Services.   

The opinion is thorough. I recommend reading it because it touches on so many areas in which a lawyer’s lack of a basic understanding of social media & how it works could lead to an ethics violation.

Some of you might be thinking: “I know how I’ll avoid violations: I won’t use social media at all.”  If so, I cannot stress this enough:  THINK AGAIN!  

Don’t want to use social media?  Ok.  What, though, is your response if:

  • an ethics complaint (or malpractice claim) is filed against you in which a client alleges that you refused to review an opposing party’s social media platforms?
  • opposing counsel informs the judge that your client’s social media postings are wholly inconsistent with claims & contentions you’ve made to the court on the client’s behalf?
  • opposing counsel places a litigation hold on a client’s ESI, including social media postings?
  • a client asks if her company’s social media postings comply with SEC, FTC, or FDA regulatory guidelines?
  • a client asks if her heightened settings create a reasonable expectation of privacy?
  • a juror’s social media posts would’ve caused a reasonable attorney to think twice about keeping the juror?
  • your employee is using a fake social media account to review your clients’ adversaries’ social media platforms?

If those questions aren’t enough to make your read the D.C. Opinion, at least consider this paragraph:

  • “Because the practice of law involves use or potential use of social media in many ways, competent representation under Rule 1.1 requires a lawyer to understand how social media work and how they can be used to represent a client zealously and diligently under Rule 1.3. Recognizing the pervasive use of social media in modern society, lawyers must at least consider whether and how social media may benefit or harm client matters in a variety of circumstances. We do not advise that every legal representation requires a lawyer to use social media. What is required is the ability to exercise informed professional judgment reasonably necessary to carry out the representation. Such understanding can be acquired and exercised with the assistance of other lawyers and staff.”

In other words, as I’ve blogged before, competence includes tech competence.

 

 

 

Monday Morning Answers

So, in last week’s Five for Friday, I mentioned my friend  Daren, his Catch the Mania an Top Hat trivia events, and his Viva Saloon in Key West.  Daren and I went to high school together.

When I posted on Friday, little did I know that yesterday was Daren’s birthday!  (thank you Facebook).  Yesterday afternoon, my brother and I ran into Daren at The Pour House, official pub of Five for Friday, and were able to celebrate the occasion with him.  Happy Birthday Daren, godfather of this column and my trivia-style ethics seminars.

Now, on to the answers.

Honor Roll

One perfect score this week: Matt Anderson, Pratt Vreeland

Others on the  Honor Roll:

  • Bob Gensburg, Gensburg, Atwell, & Greaves
  • Robert Grundstein
  • Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
  • Cassandra LaRae-Perez, Primmer (*special bonus for Question 5)
  • Team Liberty (ACLE of Connecticut)
  • Hal Miller, First American

The Answers

Question 1

Which doesn’t belong?

  • A.  Social Media
  • B.  Safekeeping Property
  • C.  Competence
  • D.  Advertising

Choices B, C, and D are the titles of Rules 1.15, 1.1, and 7.2 of the Rules of Professional Conduct. There is no rule entitled (or that specifically deals with) “social media.”  My outline on legal ethics of social media is HERE.

Question 2

Lawyer represents Landlord.  Lawyer mails notice of eviction to Tenant.

A few days later, Lawyer listens to his voice mail.  After the beep, a voice says:

“Hi. I’m Tenant. My friend told me you handle evictions. I just got an eviction notice and would like some legal advice. Please call me at 802-xxx-xxx.”

Which is most likely under Vermont’s Rules of Professional Conduct?

  • A.  Lawyer must withdraw from representing Landlord.
  • B.   Lawyer must call Tenant back.
  • C.  If Tenant denies receiving the notice of eviction, Lawyer may use the voice mail message.
  • D.  If Tenant denies receiving the notice of eviction, Lawyer may have a conflict.

Maybe the question was poorly phrased.  However, in this instance, Tenant attempted to consult with Lawyer.  Thus, the information conveyed by Tenant is confidential. The best answer here is “D.”  I’m not aware of any scenario, absent informed consent to disclose, in which a lawyer may use against someone information that the person conveyed in a good-faith attempt to secure legal advice.  Here, Tenant is most likely a “prospective client” for the purposes of the Rules of Professional Conduct.  See, Rule 1.18.  Lawyer may represent Landlord, provided that Lawyer did not receive from Tenant information that could be significantly harmful to Tenant. If Tenant claims not to have received the notice, Lawyer cannot disclose the voice mail and, as a result, has a conflict under Rule 1.7 in that Lawyer’s duties to Tenant conflict with Lawyer’s duties to Landlord.

Question 3

Attorney called me with an inquiry.  I listened.  Then, I asked: “did you confirm it in writing and provide your client with a written explanation of what you’d do for her?”

Attorney answered “no.”  To which I replied “Houston, we have a problem.”

What did Attorney call to discuss? (please be specific)

A non-refundable fee.  See, (new) Rule 1.5(f).  Most of you were in the ballpark, indeed with very good seats.  Only Matt, however, was on home plate.

Question 4

Attorney represents Mork.  Mork intends to sue Mindy.

Attorney is married to Lawyer.  Attorney and Lawyer do not work in the same firm.

Mindy hires Lawyer.

Which is most accurate under Vermont’s Rules of Professional Conduct?

  • A.  Attorney and Lawyer do not have conflicts of interest.
  • B.  At a minimum, Mork & Mindy are entitled to be informed that Attorney & Lawyer are married.  See, Rule 1.7, Comment 11.
  • C.  If Attorney withdraws due to the conflict presented by being married to Lawyer, the conflict is imputed to all others in Attorney’s firm.
  • D.  The rules specifically prohibit a lawyer from representing someone in a matter in which an adverse party is represented by a lawyer who is “closely related by blood, marriage, or civil union.”

Question 5

Jimmy received his law degree from the University of American Samoa. His natural instincts as a con artist led him to cross several ethical boundaries while practicing law in  New Mexico.  From filing fraudulent insurance claims, to advertising violations, to assisting drug clients in money laundering schemes.

You might know Jimmy better by another name he uses.  A name he concocted from the phrase “It’s all good, man.”

Name one of the two TV shows on which you might have seen Jimmy.

Jimmy McGill practiced under the name “Saul Goodman” in Breaking Bad and Better Call Saul.  Kudos to Cassandra for knowing that Jimmy’s nickname is “Slippin’ Jimmy,” a name that harkens back to the days where he’d intentionally “slip” and fall in order to make fraudulent claims.

 

 

 

Is looking harassment?

Dedicated readers know that I’ve written on tech competence.  If you’ve heard me once, you’ve heard me 1000 times:  competence includes tech competence.

Colorado recently adopted an opinion on the issue.  The opinion isn’t terribly notable in that it is consistent with nearly every other advisory opinion on the topic.  However, it raises an interesting question: when does permissible viewing become impermissible harassment?

Here’s the issue:  some social media platforms alert the user whenever his or her profile has been viewed.  A notable example:  LinkedIn

In 2012, the Association of the Bar of the City of New York opined that

  • “Attorneys may use social media websites for juror research as long as no communication occurs between the lawyer and the juror as a result of the research. Attorneys may not research jurors if the result of the research is that the juror will receive a communication. If an attorney unknowingly or inadvertently causes a communication with a juror, such conduct may run afoul of the Rules of Professional Conduct.”

The opinion was consistent with another issued in 2011 by the New York County Lawyers’ Association.

The ABA rejected New York’s approach.  In Formal Opinion 466, the ABA concluded that “the fact that a juror or a potential juror may become aware that a lawyer is reviewing his Internet presence when a network setting notifies the juror of such does not constitute a communication from the lawyer in violation of Rule 3.5(b).”

Colorado’s recent opinion echoes the ABA’s.  However, Colorado cautioned attorneys not to look too much.  Specifically, the Colorado committee noted that:

  • “Colo. RPC 4.4(a) provides that in representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person. A lawyer who engages in repetitive viewing of an individual’s social media profile could potentially violate Colo. RPC 4.4(a) if the lawyer knew the other person would receive notice each time the lawyer viewed the profile, the lawyer had no other legitimate purpose for the repetitive viewing, and the repetitive viewing rose to the level of harassment or intimidation. To constitute a violation of the Rules, this would have to be an extreme situation, and it would be an exception to the general opinion expressed herein.”

Vermont’s Rule 4.4(a) is the same as Colorado’s.  So, while competence includes researching publicly accessible information, viewing for no other reason than to let the person know you did might not be allowed.

Competence Includes Tech Competence

Rule 1.1 requires lawyers to provide clients with competent representation.  It is the first rule in the Vermont Rules of Professional Conduct.

Now, the rules aren’t arranged in some sort of hierarchy of importance. It’s as important to comply with Rule 8.4 as it is to comply with Rule 1.1.

But it’s the first rule, which might mean that it’s the VERY FIRST THING the ubiquitous “they” thought of when they thought “what should the rules be?”

The Vermont Supreme Court is considering whether to  follow the ABA’s lead and adopt a comment that makes it clear that the duty of competence includes a duty to stay “abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”  ABA Model Rule 1.1, Comment 8

Comment or not, it’s inconceivable that the duty of competence does not include understanding technology and how it impacts your clients.

Consider these questions:

  1.  You represent a company.  Do you know whether the company provides its employees with mobile devices? What does the company do with the old ones that employees trade in? Do you know how to advise your client on preserving ESI?  When does the duty to preserve ESI kick-in?  Do you even know what “ESI” means?  Opposing counsel asks for discovery in native format.  Is your response “wait…what?”
  2. You represent the plaintiff in a personal injury case.  Your paralegal informs you that the client recently posted to YouTube a GoPro video he took while boarding Stowe’s Nosedive trail.  A few minutes later, your client calls and asks if he should take down the video.  What’s your response?
  3. You represent a criminal defendant.  The state has an eyewitness who is 100% certain that your client did it.  Your client, however, tells you that the eyewitness checked-in on Foursquare some 45 miles from the scene of the crime at the exact time the crime is alleged to have taken place.  Do you know how Foursquare works? Would you be able to authenticate and admit the check-in?
  4. You communicate with your clients via text.  When the representation ends, Rule 1.16(d) requires you to deliver to the client “papers and property to which the client is entitled.”  Are texts “property” to which the client is entitled? Are they “writings” ?  If so, do you know how to move them from your mobile device to the file?  What if the client files an ethics complaint that alleges that you never communicated with her? Would you be able to retrieve and produce the text messages that prove otherwise?
  5. Your practice focuses on estate planning. Have you heard of digital assets?
  6. Do you know how to use technology and social media to create compelling demand packages or settlement offers for your clients?  If you’re in trial, are you using magic markers and an easel while the other side is using state-of-the art technology to present evidence?
  7. Jury draw is next week. Is it ethical to review a juror’s internet presence? Is it ethical not to?

I ask these questions to try to convince you it’s no longer okay for attorneys to say “i don’t use technology” or “I don’t do social media.”  You know what? Your clients are using technology. Your clients are using social media. And their use of technology and social media may very well impact the matters in which you are representing them. Are you able to provide your clients with competent advice?

You don’t have to be an expert or know how to write code. However, it strikes me that the lawyer who chooses not to understand how technology and social medial will impact her clients does so at her own peril.

Oh – your client’s opposing party is a blogger.  Are his blog posts self-authenticating?

Thanks for reading. For those interested in reading more, here are some thoughts & resources:

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“ESI” is “electronically stored information.”  The discovery thereof is governed by Rule 34 of the Federal Rules of Civil Procedure and Rule 34 of the Vermont Rules of Civil Procedure.  The California State Bar recently issued an advisory ethics opinion outlining an attorney’s ethical duties in handling discovery of electronically stored information.  It’s here.  For a discussion of the opinion and many of the issues it raises, go here.  Not sure you’re ready to “do social media & technology?”  Well, take a look at this tale of a default judgment issued for discovery violations related to ESI?  Or this primer on “how NOT to produce” ESI.

This update from Gibson Dunn is one of the most comprehensive I’ve found.

Several states have issued advisory opinions related to the ethics of social media.  Opinions from Florida and Pennsylvania include guidance on advising clients to “clean up” social media platforms.  The most famous case on the topic might be this one, and it resulted in a 3 year suspension of the attorney’s license and a significant monetary sanction in the underlying civil case.

New York State Bar Association, Commercial& Federal Section, Updated Social Media Ethics Guidelines, June 29, 2015:  HERE

North Carolina State Bar Association, Formal Ethics Opinion 14-08, January 23, 2015 (discusses lawyer accepting “friend” request or other social media contact from judge):  HERE

Massachusetts Bar Association, Ethics Opinion 2014-5 (discusses when a lawyer may “friend” an unrepresented adversary): HERE

American Bar Association, Formal Opinion 466, Lawyer Reviewing Jurors’ Internet Presence, April 24, 2014:  HERE

Washington State Bar Association, Advisory Opinion 201402, (ethical issues of online endorsements & ratings):  HERE

State Bar of California, Standing Committee on Professional Responsibility & Conduct, Formal Opinion Interim No. 12-0006, December, 2014 (under what circumstances are lawyer blogs subject to the Rules of Professional Conduct)  HERE

New Hampshire Bar Association, Ethics Committee Advisory Opinion 2012-13/5, Social Media Contact with Witnesses in the Course of Litigation, June 20, 2013: HERE

San Diego County Bar Association, Legal Ethics Opinion 2011-2, May 24, 2011 (discusses lawyer sending “friend” requests to high-ranking employees of opposing party):  HERE

Philadelphia Bar Association, Professional Guidance Committee, Opinion 2009-02 (March, 2009) (discusses lawyer sending “friend” request to unrepresented witness whose testimony is favorable to adverse party):  HERE