I recently presented at the annual Attorneys Insurance Mutual of the South seminar in Birmingham. With over 400 attorneys registered, it was a conference well-attended by attorneys from both Alabama and Tennessee. My topic: “Ethical Issues in Using Social Media in Your Legal Practice”. With only a one hour time slot, I provided an overview of the many ethical issues that confront attorneys in their everyday practice. Likewise, this blog entry is merely an overview of the many ethical issues that arise when attorneys use social media.
Competency. Discovery/Preservation/Spoliation issues often arise in employment litigation when dealing with social media. Attorneys need to competently advise a client on what to preserve, how to do so, and what you need to be looking for. ABA Model Rule 1.1 requires a lawyer to “keep abreast of changes in the law and it's practice, including the benefits and risks associated with relevant technology….” Various states, including North Carolina, Pennsylvania and New York have issued Ethics Opinions including the words “shall” and “must” when addressing social media. For example, in 2014, Pennsylvania issued a formal ethics opinion stating, in part, that: “Lawyers must be aware of how these websites operate and the issues they raise in order to represent clients whose matters may be impacted by content posted…As the use of social media expands, so does its place in legal disputes…” If you, a staff member of your firm or a client (or a supervisor who works for one of your clients) has a confederate flag as their Facebook cover photograph, how difficult will it be to defend an EEOC charge or lawsuit alleging racial discrimination under Title VII? If you have a client who has an ADA or FMLA claim pending, and they post photographs on their Facebook (or other social media site) showing them on vacation, skiing, playing softball, etc., how effectively can you pursue your claim? Are you familiar with various apps, such as Yik Yak and Whisper, that have gotten people fired from work, arrested for criminal activity, or sued for discrimination? Are you aware that emoji's, such as the stuck out tongue, have been addressed by various courts in employment (and other) related cases? Are you familiar with causes of action that are commonly referred to as “revenge porn” and “Twible”, among others? Are you familiar with various statutes, issues and causes of action that impact the use of social media? Consider the Stored Communications Act, the Computer Fraud and Abuse Act, theft of trade secrets, defamation, non-compete agreements and the ownership of and access to social media sites, among the numerous statutes, issues and causes of action of which you should be aware.
Confidentiality. One of the hallmarks of being an attorney is maintaining confidence. Are you, your staff or your clients unknowingly breaching confidences? Are there postings about cases you handle being made on social media sites? Have you ever settled a case with a confidentiality provision, but neglected to tell your client that means he/she, as well as family members cannot post information about that settlement on social media? For example, a wrongful termination case was mediated in Florida, with an $80,000 settlement. The daughter of the client, almost immediately, posted on Facebook that her father settled his case, and they were now able to go on vacation in France. The court upheld the defendant's position that the post violated the confidentiality requirement, and set aside the payment. Do you, your staff or clients use Wi-Fi? If so, how secure is it? Google the “Pineapple by Hak 5” to see just how unsecure the use of Wi-Fi can be.
Communications. Various ethical rules address communications with clients, persons represented by counsel, witnesses and jurors. Disciplinary action has been taken against attorneys around the country for violating the rules dealing with communications, with punishment including disbarment. Did you know that if you use LinkedIn to research adverse parties or jurors, if they have a premium account, they are notified of who looked at their account? At least one lawyer has been disciplined for improper contact with a juror by doing just this. Do you communicate with clients via social media sites? If so, how private/confidential are the communications? Do you keep a copy of the social media communications in your file in the event a dispute arises later?
Responsibilities of a Partner or Supervisory Lawyer, Subordinate Lawyer and Non-Lawyer Assistants. Have you ever instructed a lawyer you supervise or a non-lawyer assistant to do something on social media that is in violation of these rules? A good example is that of Matthew Murray, who practiced in Virginia. A client removed 16 Facebook photos at the direction of his assistant and by Mr. Murray himself. When the trial court discovered this, a multi-million verdict was reduced, Mr. Murray was sanctioned over $500,000, and he was suspended from the practice of law for 5 years.
Advertising. Lawyers are getting very creative, and some would say, very unlawyer-like. Alabama has 2 Formal Opinions addressing social media and advertising. The first, in 1996, found that ethics rules apply to email and internet advertising. The second, in 2012, found that lawyers could not use services such as Groupon, since it would constitute fee sharing. It should be noted that some states do allow the use of fundraising sites such as “GoFundMe”. Forbes recently reported on a recent study showing that $892 million will be spent in 2015 by lawyers for advertising. This is a 68% increase from 2008. 8 of the top 10 most expensive key word searches are legal related, with the most expensive being $642 for each click. Some lawyers use “low budget” advertising, such as YouTube. For an example of how one lawyer uses his friends, YouTube and a small budge, see the Texas Law Hawk. His postings have garnered over 2 million views.
Practice Pointers. Lawyers who represent clients with labor and employment issues can use social media on a regular basis. Be it a Title VII charge investigation, FMLA or ADA issues, workers' compensation, unemployment compensation, workplace violence or other issues, social media may help you defend, or perhaps lessen the exposure your clients may face. To properly use social media to provide counsel to clients, lawyers must do so competently and in an ethical manner. Otherwise, a reprimand, suspension and/or disbarment may be in your future - as well as monetary sanctions. And maybe even a malpractice lawsuit. Be careful out there. And stay informed.