My 3 Nov. 2011 presentation on social media & legal ethics for the Theodore Roosevelt Inn of Court at the Nassau County Bar Association in New York.

1. E-Discovery and
Social Media:
Social Media and Legal
Ethics
Prof. Jonathan I. Ezor
Touro Law Center
jezor@tourolaw.edu
Theodore Roosevelt Inn of Court CLE Presentation
Nassau County Bar Association
November 3, 2011

2. Electronic
Communications Crucial
for All Businesspeople
• Multiple channels of electronic business
communication
– E-mail
– Text messages
– Web sites
– Videoconferencing
– Social media
– Others
• Can be one-way, two-way or multipoint
jezor@tourolaw.edu

3. Common Challenges of Electronic
Business Communication
• Addressing and attachment errors
• Lack of nuance & tone
• Heightened expectations of responsiveness
• Informality
• Compliance
• Management
jezor@tourolaw.edu

4. Attorneys’ Ethical
Obligations Add to
Challenges
• Rules of Professional Conduct impact on attorney
communication
• Lawyers must ensure compliance with those as
well as with good business practices
• Confidentiality biggest potential breach
jezor@tourolaw.edu

7. “Adopting” A Listing
• Ok, but beware of issues like those
discussed in SC Ethics Advisory Op. 09-10
– The lawyer must monitor the “claimed” listing
to make sure all comments are in conformity
with the ethical rules, especially the rules for
attorney advertising writing of things like
testimonials and client endorsements that
create unjustified expectations, and
comparisons
• Be careful when linking to another site!
jezor@tourolaw.edu

8. Recommendations
• LinkedIn allows parties to “recommend” the work
of a another participant. Issues?
• What about asking a client to recommend your
work?
jezor@tourolaw.edu

9. Recommendations
• Be mindful of rules that place limitations on the
use and content of testimonials
• Model Rule 4.1 (duty of candor) prohibits the
making of a false statement of material fact to a
third person
– Beware of possible exaggerations regarding your
biography, experience, etc.
• What about asking a Judge to recommend you?
• What about announcing on Facebook or LinkedIn
that you just won a big jury trial or negotiated a
big deal?
jezor@tourolaw.edu

10. Recommendations
• Depending on the rules in your
jurisdiction, this could require you to add
a disclaimer along the lines of “results will
vary in each case” or similar language
• A related issue, depending on the content
of your blogs or tweets
– Could they be governed by your state’s
restrictions on lawyer advertising?
– If so, what are your obligations?
jezor@tourolaw.edu

11. Recommendations
• Texas: must file video postings seeking
clients with the Advertising Review
Committee
• Connecticut: sending LinkedIn invitation
that links to page describing law practice
is an advertisement subject to all relevant
rules
• LinkedIn allows users to provide
professional information under
“specialties.” Are there any issues with
that? jezor@tourolaw.edu

12. Recommendations
• Depending on the content, it could run afoul of
bar rules, such as Illinois Rule 7.4(c) and NY Rule
7.4(a), that prohibit attorneys from claiming they
are “specialists” in a certain field
• Any other risks in posting information about your
matters?
jezor@tourolaw.edu

13. Lying To A Tribunal
• Model Rule 3.3 prohibits attorneys from
making a false statement of fact to a
tribunal
• New connections via social media provide
“channels” for discovery of such
statements
jezor@tourolaw.edu

16. Investigative Issues
• How is it being used?
– Employment background check?
– Information about opposing counsel? Judge?
– Information about parties? Witnesses?
Jurors?
• Front page article in The Washington Post
(May 29, 2010) about the increasing use of
subpoenas to obtain information from
social networking sites
jezor@tourolaw.edu

23. Friending Issues
• In most jurisdictions, a judge and attorney who
appears before the judge can be “friends”; e.g.
New York:
jezor@tourolaw.edu

24. Other States’ Ethics
Opinions on Friending
• Permissible:
– SC Op. 17-2009 (2009)
– Ky. Op. JE-119 (2010)
– Ohio Op. 2010-7 (Dec. 3, 2010)
• But NOT in Florida, Op. 2009-20 (2009)
– A judge cannot lend the prestige of her office
to advance the private interests of others or
convey an impression that some are in a
special position of influence
jezor@tourolaw.edu

25. Friending Issues
• Other friending issues with judges?
– In re Public Reprimand of Terry, Inquiry No. 08-
234 (Apr. 1, 2009)
– N.C. child custody and support case
• Judge friended defense counsel and saw information
posted by the defense counsel about the case
– Asking how he could prove the negative that his client
did not have an affair
– Noting that he had a wise judge (to which the judge
responded that he had two very good parents to
choose from)
– Asking how long the trial would last
jezor@tourolaw.edu

26. Friending Issues
• Other issues with respect to whom an attorney
can friend?
– Opposing counsel?
– Parties to a dispute in which you are counsel?
– Witnesses in an active case
jezor@tourolaw.edu

27. “Fake” User Profiles
• An attorney was reprimanded because he hid his
real identity and posed as a teacher and posted
on classmates.com that another teacher had
engaged in sex with students – In re Carpenter,
95 P.3d 203 (Or. 2004)
• Fake patient profiles in the healthcare space
jezor@tourolaw.edu

28. Blogging And Other
Interactive Media
• LinkedIn allows users to post and answer
questions; bloggers and tweeters often address
legal issues; and sites like “Counsel.net” and
Quora allow users to seek answers to legal
questions
• This is a particularly risky area. Any issues?
jezor@tourolaw.edu

29. Conflicts Of Interest
• With whom are you communicating?
– What if it is with a party with an adverse interest to a
client of the firm? (Model Rules 1.7, 4.2)
• Other issues?
jezor@tourolaw.edu

30. Inadvertent Creation Of An
Attorney-Client
Relationship
• The discussion could lead to a situation where a
“prospective” client relationship is formed, which
has several consequences
• Must keep that information confidential (Model
Rule 1.18)
• Obtaining this confidential information could lead
to disqualification with respect to existing clients
who would have an interest in knowing that
information
jezor@tourolaw.edu

31. Inadvertent Creation Of An
Attorney-Client
Relationship
• An organization needs a well-considered policy to address
these issues, including:
– Use a disclaimer (“general informational purposes”), but how
do you do that with Tweets?
– Do not post confidential information
– Restrict recipients, followers, etc.
• Very little risk with passive review, but the more interactive,
the more dangerous
– Contact with represented party
– Do not discuss subject matter of your cases!
jezor@tourolaw.edu

32. Inadvertent Creation Of An
Attorney-Client
Relationship
• Depending on the circumstances, this could run afoul of
rules prohibiting the unlicensed practice of law – or it could
inadvertently create an attorney-client relationship
• An organization needs a good policy to address these
issues – things to consider
– Keep it general
– Restrict recipients
– Use a disclaimer (“general informational purposes”)
– Do not post confidential information
jezor@tourolaw.edu

33. Lawyers (and Law
Students) Tweeting Badly

46. Remember:
How and Why Not
• Twitter is public; remember that all, not just followers,
may see/search your tweets
• Jurors, clients, judges and colleagues can/will follow
you
• Many horror stories of accidental disclosures,
embarrassments; can impact on career and reputation
• Be a good example
jezor@tourolaw.edu

47. Key Question is Why?
• Media sees Twitter as celebrity hangout, text message
alternative (“Having eggs for breakfast”)
• True but only one side of story
• “Other” Twitter is tremendous business/knowledge
resource
• Blogs are great model: links, opinions and
discussions
• Ideal is to provide as well as receive value
jezor@tourolaw.edu

48. Conclusion
• Beware of advertising issues
• Be careful with judicial relationships
• Avoid deception and act transparently
• Keep confidences confidential
• Establish and follow a policy for interactive
contact
jezor@tourolaw.edu

49. Knowledge, Policies and
Procedures Must Work Together
To Minimize Risks
• Adequate funding of IT staff, including training
• Make sure attorneys and support staff given
proper education
• Set up systems with legal practice concerns in
mind
• Keep up with legal trade press, ethics opinions
jezor@tourolaw.edu

50. QUESTIONS?