Trends
 U.S. social media audience increased from
163.6M unique users to 171.8M
 Time spent on social media increased from
88.4 121.1 Billion minutes per person.
 32% of people 18-24 use social media in
the bathroom.

Trends
 Social media use for purchasing decisions
on the increase.

Trends
 “Social Care” – using social
media to voice questions, issues
and complaints.
 Consumer-driven marketing and
customer service.
 30% prefer social media to the
telephone.
 Facebook remains the leader.
 29% post on the company’s page.
 28% post on their own page.
Neilson Company, State of the Media:
The Social Media Report, 2012
(http://goo.gl/JNDqb)

Trends
 2008 Leader Networks/LexisNexis Survey
of corporate counsel.
 50% belonged to a social network.
 29% believe it helps to more quickly find and
evaluate the right legal partners.

The Networks
 F
 Passed 1 billion users in 2012.
 Email and telephone replacement for many.
 Initially used as a personal networking tool,
increasing use for business.
 Professionalism a challenge for attorneys:
 posts about interesting cases mixed with a cousin’s
bachelor party photos.

The Networks
 L
 170 million accounts.
 So-called “Facebook for professionals.”
 Express business focus.
 “Status” updates can be useful information.
 Personal and business profiles
 Exponential business networking.
 Business interest groups with questions and
answers.

The Networks
 L Twitter
 Passed 500 million users in 2012.
 Primarily personal communications.
 Limited to 140 characters per “tweet.”
 Your tweets simultaneously go to your
“followers,” who agreed to receive your
tweets.
 Can potentially set up online communities
interested in your content.

The Networks
 Blogging
 Preset templates.
 Faster and simpler than websites: write and
click.
 Entry of current developments and other
information in a timely manner.
 Potentially more work than other social media
tools because you must regularly post
updates.

The Issues
 Unauthorized Practice of Law.
 Confidentiality and Loyalty.
 Advertising.
 Recommendations and Endorsements.
 Inadvertent Creation of Attorney-Client
Relationships.
 Investigation and Communication with
Parties and Witnesses.
 Judges – Friends and Foes.

The Issues
 Developing Law.
 Ambiguous Rules.
 Variation among jurisdictions.
 Multiple “Model Rules” drafts.
 Issues may not be limited to
“professional” sites but to “personal” sites
as well.

Unauthorized Practice of Law
 MRPC 5.5 – Unauthorized Practice of Law *
(a) A lawyer shall not practice law in a jurisdiction in
violation of the regulation of the legal profession in
that jurisdiction, or assist another in doing so.
(b) A lawyer who is not admitted to practice in this
jurisdiction shall not:
(1) except as authorized by these Rules or other law,
establish an office or other systematic and continuous
presence in this jurisdiction for the practice of law
(emphasis added); or
(2) hold out to the public or otherwise represent that the
lawyer is admitted to practice law in this jurisdiction
*The ABA Model Rules of Professional Conduct are available at
http://goo.gl/JOhhF

Unauthorized Practice of Law
 “other systematic or continuous presence”
 Physical presence not required. MRPC 5.5,
Comment 4.
 One can engage in unauthorized practice “by
telephone, fax, computer, or other modern
technological means”
 Birbrower, Montalbano, Condon & Frank v. Superior
Court, 949 P.2d 1, 5 (Cal., 1998)
 Consider use of disclaimers similar to letterhead
limitations in multi-jurisdictional firm letterhead.
 “Licensed in…”
 “Practice limited to [jurisdiction]…”

Confidentiality and Loyalty
 MRPC 1.6 – Confidentiality of Information
(a) A lawyer shall not reveal information relating
to the representation of a client unless the client
gives informed consent, the disclosure is impliedly
authorized in order to carry out the representation
or the disclosure is permitted by paragraph (b).
 Para (b) exceptions
 Prevent/mitigate substantial harm, crime or fraud.
 Defend claims against the attorney.
 Clear conflicts.
 Secure ethics advice.
 Compliance with rules or court orders.

 MPRC 1.8 – Conflict Of Interest: Current
Clients: Specific Rules
(b) A lawyer shall not use information
relating to representation of a client to the
disadvantage of the client unless the client
gives informed consent, except as
permitted or required by these Rules.
 May seem obvious but consider:
 I’m excited about my first trial!

 Do not use social media messaging for
attorney-client communications.
 Do not use social media to discuss a case.
 Maintain knowledge of security advances
in communication forms you use.
 Avoid case discussions on social media
sites.
 Client or “selected representations” list
with permission only.

 MRPC 7.2 – Advertising
(a) Subject to the requirements of Rules
7.1 and 7.3, a lawyer may advertise
services through written, recorded or
electronic communication, including public
media (emphasis added).
 Is your Facebook or LinkedIn page
“advertising?”
Advertising

Advertising
 MRPC 7.3 – Solicitation of Clients
Every written, recorded or electronic communication
from a lawyer soliciting professional employment from
anyone known to be in need of legal services in a
particular matter shall include the words "Advertising
Material" on the outside envelope, if any, and at the
beginning and ending of any recorded or electronic
communication, unless the recipient of the
communication is a person specified in paragraphs
(a)(1) or (a)(2).
 Probably not a solicitation issue unless used to direct
comments to specific people.

 MRPC 7.1 – Communication Concerning a Lawyer's Services
A lawyer shall not make a false or misleading communication
about the lawyer or the lawyer's 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.
 “Whatever means are used to make known a lawyer's services,
statements about them must be truthful.” MRPC 7.1, Comment
1.
 Even truthful reports of achievements “may be misleading if
presented so as to lead a reasonable person to form an
unjustified expectation that the same results could be
obtained….” MRPC 7.1, Comment 3 .
Advertising

Advertising
 MRPC Rule 7.4 – Communication of Fields of
Practice and Specialization
(a) A lawyer may communicate the fact that
the lawyer does or does not practice in
particular fields of law.
(d) A lawyer shall not state or imply that a
lawyer is certified as a specialist in a
particular field of law…
 Particular areas of practice (Patent; Admiralty).
 Certified as a specialist by an approved
organization, and identifies the organization.

Advertising
 Status updates about recent cases won;
major deals succeeded, etc.
 Breach of confidentiality and loyalty?
 Misleading communication creating an
unjustified expectation?
 Improper indication of certification?

Recommendations and
Endorsements
 LinkedIn and other sites
allow people to
“recommend” or
“endorse” the work of a
another participant.

 MRPC 8.4 – Misconduct
It is professional misconduct for a lawyer
to:
(a) violate or attempt to violate the
Rules of Professional Conduct, knowingly
assist or induce another to do so, or do so
through the acts of another.
Recommendations and
Endorsements

Recommendations and
Endorsements
 MRPC 7.1 – Communication Concerning a Lawyer's
Services
A lawyer shall not make a false or misleading
communication about the lawyer or the lawyer's
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.
 Developing area – changes in the rules and state
variations present a serious problem.

Recommendations and
Endorsements
 Prior DR 2-101 described certain statements as always
being prohibited in advertising including “a testimonial
about or endorsement of a lawyer.”
 Original MRPC 7.1 dropped the language regarding
testimonials but left in other per se prohibitions.
 Current MRPC Rule 7.1 contains no “per se”
prohibitions and the Comments do not discuss
testimonials.
 “The categorical prohibitions … have been criticized as being overly
broad and have therefore been relocated from text to the
commentary as examples.... The Commission believes this approach
strikes the proper balance between lawyer free-speech interests
and the need for consumer protection. Reporter’s Explanation of
Changes, MRPC 7.1, ABA Ethics 2000 Commission
(http://goo.gl/zLWXz)”

Recommendations and
Endorsements
 Virginia
“This committee adopts the mixed approach,
used in Pennsylvania, while prohibiting
testimonials regarding results and/or
comparisons, it does allow “soft endorsements.”
(citations omitted) Examples of “soft
endorsements” include statements such as the
lawyer always returned phone calls and the
attorney always appeared concerned.”
VA State Bar Advertising Opinion A-0113 (2/29/2000)
http://goo.gl/kwDJH

Recommendations and
Endorsements
 South Carolina Ethics Advisory Opinion 09-
10 (2009).
 State RPC 7.1 contains the old DR prohibition
against testimonials:
“A lawyer shall not make false, misleading,
deceptive, or unfair communications about
the lawyer or the lawyer's services. A
communication violates this rule if it:
“(d) contains a testimonial”

Recommendations and
Endorsements
 South Carolina
 RPC 8.4(a) “prohibits lawyers from violating the
Rules of Professional Conduct through the acts of
another.”
 Testimonial: “a statement by a client or former
client about an experience with the lawyer.”
 Endorsement: “a more general recommendation
or statement of approval.”
 7.1 prohibits testimonials and “ordinarily also
prohibit client endorsements. “

Recommendations and
Endorsements
 South Carolina
 Endorsements (not testimonials) may be “presented
in a way that is not misleading nor likely to create
unjustified expectations.”
 Recommends inclusion of disclaimer or qualifying
language.
 A lawyer adopting information on a website “becomes
responsible for conforming all information in the
lawyer’s listing to the Rules of Professional Conduct.”
 “This opinion does not take into consideration any
constitutional law issues regarding lawyer
advertising.”
http://goo.gl/3Dbq6

Recommendations and
Endorsements
 Colorado Formal Ethics Opinion 83 (1989;
Addendum 1993).
 Code expressly prohibits use of advertising,
solicitation or publicity containing a “testimonial about
or endorsement of a lawyer.” DR 2-101(C)(3).
 Testimonials and endorsements
 tend to mislead the recipient into believing that similar
results can be achieved for them.
 are likely to contain predictions of future success based on
past performance .
 may involve unverifiable claims about the quality of the
lawyer’s legal services.
http://goo.gl/Kvcpn

Recommendations and
Endorsements
 Utah State Bar Ethics Advisory Opinion No. 09-01 (2009).
 “The cardinal rule concerning all public communication about a
lawyer and her services is that the communication not be false
or misleading.”
 Testimonials may be false or misleading if there is a “substantial
likelihood” of reaching a “conclusion for which there is no factual
foundation or will form an unjustified expectation.”
 Inclusion of appropriate disclaimer or qualifying language.
 “The U.S. Supreme Court has made it clear that public
communication concerning a lawyer’s services (including any
form of advertising) is commercial speech, enjoys First
Amendment protection, and can be regulated only to further
substantial state interests, and then only in the least restrictive
manner possible. “
http://goo.gl/m2YRC

Inadvertent Creation of Attorney-
Client Relationship
 MRPC Preamble
[A] lawyer should further the public's
understanding of and confidence in the rule
of law and the justice system because legal
institutions in a constitutional democracy
depend on popular participation and support
to maintain their authority.
 Chat rooms, LinkedIn Groups, online forums.

 “[T]here is every reason to believe, consistent
with the traditions of the profession, that these
ethical duties to contribute to making legal
information available to the public continue to hold
strong here.”
 But, “the ethical impetus that motivates lawyers to
help the public become aware of legal problems
cannot insulate lawyers from the consequences
arising from formation of an attorney-client
relationship as the result of providing legal
advice.”
D.C. Bar Ethical Opinion 316 (2002) (http://goo.gl/CGDfA)
Client Relationship

Client Relationship
 Formation is a matter of state substantive
law. In general:
 Retainer or formal agreement not required.
 Does the “client” reasonably believe he or she
is receiving legal advice.
 Is the “client” reasonably relying on even
casually rendered advice?
 Consider the unauthorized practice issue.

Client Relationship
 Distinction between legal advice and legal information.
 Emphasize for general information only.
“A lawyer who writes or speaks for the purpose of
educating members of the public to recognize their
legal problems should carefully refrain from giving or
appearing to give a general solution applicable to all
apparently similar individual problems …; otherwise,
the public may be misled and misadvised. Talks and
writing by lawyers for non-lawyers should caution
them not to attempt to solve individual problems upon
the basis of the information...”
 New York City Ethics Opinion 1998-2 (1998)
http://goo.gl/0DXl7

Client Relationship
 Do not elicit or respond to questions about specific
situations.
 Discuss general principles and trends, but caution
of variations in application by different states and
in different circumstances.
 Emphasize and re-emphasize the unique quality of
legal advice and that what you are is not legal
advice.
 Recommend that an attorney be sought.
 Consider disclaimers, but can be undercut by the
lawyer’s actions.

Investigations
 Uses
 Employment background checks.
 Information about opposing counsel, judges,
witnesses, experts and jurors.
 Subpoenas to social networking sites?
 Wal-Mart obtained subpoena against a burn
injury plaintiff’s wife accessing 2-½ years
worth of data fro her MySpace and Facebook
accounts.
(Washington Post, May 29, 2010) http://goo.gl/q3i6

 NYS Bar Assn Ethics Opinion 843 (2010)
“A lawyer representing a client in pending
litigation may access the public pages of
another party's social networking website
(such as Facebook or MySpace) for the
purpose of obtaining possible impeachment
material for use in the litigation (emphasis
added).”
http://goo.gl/3MCGX
Investigations

Investigations
 Philadelphia Bar Assn Professional Guidance
Committee Opinion 2009-02 (2009).
 Attorney asks non-lawyer assistant to "friend" a
witness, without disclosing the reason for the
request or the affiliation with the attorney.
 Violates 8.4(c) – deceptive communication.
 Violates 4.1 – false statement of material fact to
the witness.
http://goo.gl/AHfip

Investigations
 San Diego County Bar Assn Legal Ethics Opinion 2011-
2 (2011).
 Employee plaintiff’s attorney sends “friend” request to
the Facebook page of two high-ranking but
dissatisfied defendant company’s employees to find
disparaging remarks. The only information provided is
the attorney’s name.
 Violates Model Rule 4.2 – prohibition of communication
with represented party about the subject of the
representation.
 Not the same as accessing the person’s public page.
Treats the NYS Bar Association opinion as reaching a
similar result.
http://goo.gl/EckLI

Investigations
 OK to access public social media pages.
 Not OK to “friend” under false pretenses.
 Not OK to “friend” parties represented by
counsel.
 Not OK to get someone else to do it for
you.

Judicial Criticism
 Ft. Lauderdale attorney
reprimanded and fined
$1200 for calling a judge an
“Evil, Unfair Witch” in a
blog.
 http://goo.gl/hYbRh (NY
Times, September 12, 2009)

“Friending” Judges
 NYS Judicial Ethics Opinion 08-176 (2009)
 Judge may join and make use of social media.
 Nothing “inherently inappropriate about a judge joining
and making use of a social network. A judge generally may
socialize in person with attorneys who appear in the
judge’s court…” (emphasis added).
 Should exercise an “appropriate degree of discretion.”
 Keep up with features and new developments that “may
impact his/her duties under the Rules.”
 Consider whether connections, “alone or in combination
with other facts, rise to the level of a ‘close social
relationship’ requiring disclosure and/or recusal.”
http://goo.gl/hW4va

 Massachusetts SJC Committee on Judicial Ethics
Opinion 2011-6 (December 28, 2011)
 The Code does not prohibit judges from joining social
networking sites.
 Must take care to conform activities with the Code.
 But, “A judge's ‘friending’ attorneys on social
networking sites creates the impression that those
attorneys are in a special position to influence the
judge. Therefore, the Code does not permit you to
‘friend’ any attorney who may appear before you.”
http://goo.gl/CBPS2

 South Carolina Advisory Committee On
Standards of Judicial Conduct Opinion No.
17-2009 (2009).
 “A judge may be a member of Facebook and
be friends with law enforcement officers and
employees of the Magistrate as long as they
do not discuss anything related to the judge’s
position as magistrate.” http://goo.gl/7ffJC

 Supreme Court of Ohio Bd of Commissioners On
Grievances and Discipline Opinion 2010-7 (2010).
 “A judge may be a “friend” on a social networking site
with a lawyer who appears as counsel in a case
before the judge. As with any other action a judge
takes, a judge’s participation on a social networking
site must be done carefully in order to comply with
the ethical rules in the Ohio Code of Judicial
Conduct.”
 Raises the same cautions as the NY opinion about
being especially circumspect.
http://goo.gl/GRZro

 Florida Judicial Ethics Advisory Committee
Advisory Opinion 2009-20 (2009).
 A judge may “post comments and other material
on the judge's page on a social networking site, if
the publication of such material does not
otherwise violate the Code of Judicial Conduct.”
 But a judge may not “add lawyers who may
appear before the judge as ‘friends’ on a social
networking site, and permit such lawyers to add
the judge as their friend.’”
http://goo.gl/8Q3QE

 Cited by Fourth District Court of Appeal in Domville v. State,
No. 4D12-556 (Fla. App., 2012).
 Defendant sought disqualification of judge who is a Facebook
friend of the prosecutor.
 Court of Appeal reversed order denying disqualification.
 “Domville has alleged facts that would create in a reasonably
prudent person a well-founded fear of not receiving a fair and
impartial trial...”
 Granted certification to the Florida Supreme Court as “a
question of great public importance”
“Where the presiding judge in a criminal case has accepted the
prosecutor assigned to the case as a Facebook "friend," would a
reasonably prudent person fear that he could not get a fair and
impartial trial, so that the defendant's motion for disqualification
should be granted?”

Judges do not have the unfettered social
freedom of teenagers. Central to the public's
confidence in the courts is the belief that fair
decisions are rendered by an impartial
tribunal. Maintenance of the appearance of
impartiality requires the avoidance of
entanglements and relationships that
compromise that appearance.
Domville v. State, No. 4D12-556 (Fla. App.,
2013), Gross J., concurring specially in
certification of question.

 Public Reprimand. North Carolina Judicial
Standards Commission Inquiry No. 08-234
(April 1, 2009).
 Judge presiding over a custody dispute.
 Judge “friend” of one of the attorneys and
not the other.
 Discussions about the case by both the judge
and his friend on social media.
 Independent investigations by the judge into
one of the parties.
http://goo.gl/4xErj

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