Navigating Social Media: What Lawyers Need to Know to Avoid Ethical Pitfalls? December 5, 2013 Presented by: Marjorie N. Kaye, Jr. Esq. Candice B. Cohen, Esq. http://delvacca.acc.com Lawyers & Social Media Increasing Number of Lawyers using Social Media o Over Half in Private Practice have Online Presence o Examples • Facebook • LinkedIn • Blogs Social Media Uses for Lawyers o Marketing o Research o Communication Lawyers & Technology Working remotely while out of the office Use of smartphones to perform job Use of Wi-Fi to access & transmit client data Use of “cloud” computing & “software as service” (SasS) (e.g., document and time management programs) • Hardware/software resources • Delivered over a network (usually the Internet) • Information stored on third-party server, rather than the hard- drive Jack Lewis, Esq.:Tech-Savvy Lawyer • Has His Face in the ‘Book’ JACK • Is LinkedIn with Everyone He Knows • Blogs Like a Pro • “Friends” with all the Judges • Communicates with Clients 24/7 from his Smartphone • In Every Legal Directory on the Web • Can Try a Case from his Tablet • Is a Real “Tweet”heart What Ethical Rules Apply to a Lawyer? • Pennsylvania Rules of Professional Conduct • ABA Model Rules of Professional Conduct • ABA Commission on Ethics 20/20, appointed to study effects of technology on legal ethics • 20/20 Commission’s suggested revisions to ABA’s Rules • Pennsylvania Bar Association’s Ethics Hotline 1-800-932-0311 Ext. 2214 ABA 20/20 Commission Report • Social Media Complicates Ethics Issues • Lawyers’ Professional Announcements by Social Media • Gap between Ethics Rules and Best Practices • No Determinations • Seeking Attorney Feedback and Guidance • Stay Tuned for Further Developments… 20/20 Commission Report, Sept. 20, 2010, p. 2. Warning - So Many Issues, So Little Time Ethical Issues to Consider • 10 Issues Lawyers Should Consider to Meet His Ethical Obligations • So Should You! Issue 1 Should Lawyers Use Social Media to Research Claimants or Witnesses? Rules Regarding Online Research of Claimants/Witnesses • OKAY to view or download information from passive website • Company website • Personal website of an employee/witness/applicant • NOT OKAY to send messages to a represented party on an interactive website or chat room • May not be able to ascertain the identity of the person responding • May inadvertently communicate with a represented party (which is prohibited under the Rules) • OKAY to access the public portions of a social networking site • Truthful “friending” • Under the Rules, an attorney cannot ask another to do on his behalf what he is prohibited from doing Deceptive “Friending” • May a lawyer ask a paralegal to “friend” an employee in order to gain access to information? • May a lawyer ask another employee who is a “friend” of the target employee for a password (in order to view information)? • May a lawyer read the screen of a “friend” of the target employee (with the friend’s permission but without the target employee’s permission)? • What if the “friend” provides the lawyer with print-outs of the information (versus viewing it online)? ANSWER TO ALL: NO! Example of Facebook Leading to Sanctions • Disciplinary proceedings in New Jersey • New Jersey defense lawyers face ethics charges for allegedly having made an improper use of Facebook • In this ethics proceeding, the two defense attorneys allegedly had their paralegal “friend” a plaintiff in a personal injury case so they could access information on his Facebook page that was not otherwise available to the public • The defense attorneys were charged with violating Rule 4.2; Rule 5.3(a), (b) and (c), Rule 8.4(c) and (d); and Rule 5.1(b) and (c). Issue 2 Does a Lawyer Violate Rules Regarding Confidentiality by Using Wi-Fi Connections Outside Her Office? The Lawyer Travels for Business, Using 3d Party Networks to Work from the Road • Hotels • Airports, airplanes • Coffee bars, restaurants • Other counsels’ offices Question: Does the use of networks owned and controlled by third parties (rather than the lawyer or his firm) present any ethical issues? Lawyer’s Duty to Safeguard Client Property • A lawyer shall hold all client property that is in his or her possession separate from his or her own property, and • All client property held by an attorney shall be identified as such and appropriately safeguarded. Pennsylvania Rules of Professional Conduct Rule 1.15(a) Comment to Rule Regarding Safeguarding Client Property • Duty arises from fiduciary relationship • Duty to keep client property separate from lawyer’s • Duty to maintain complete records Question: Apply to client information or data? Answer: Undecided at this time, but likely will be applied if a lawyer fails to use reasonable care in handling client data and a data breach occurs. Comment 8 to Rule 1.14 re: Safeguarding of Client Property 20/20 Commission’s Proposed Revisions to Rule Regarding Third-Party Property Rule 4.4 Respect of Rights of Third Persons “A lawyer who receives a document or electronically stored information relating to the representation of the lawyer’s client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender.” Proposed Comment [16] to Model Rule 1.6. (emphasis added.) Potential Pitfalls for Ethical Violations • May be accessible by 3d parties • 3d parties may be able to intercept data • 3d parties may share data or respond to subpoena • • • • differently than the lawyer or the client would Some 3d parties are not located in US 3d party may not notify of data share Inadvertent waiver of attorney/client privilege if seen by 3d party Data may be lost or become owned by 3d party Rules Protect a Lawyer’s Clients’ Confidential Information Includes information that is • Privileged • Not Privileged All information furnished by client or acquired by lawyer during the course of client representation Pennsylvania Rules of Professional Conduct 1.6 Rules Place Duty on a Lawyer to Protect Confidential Client Data A lawyer shall not knowingly reveal confidential client information to: • anyone client instructs cannot receive information; or • anyone else, other than the client or the lawyer’s firm. A lawyer shall not use confidential client information without consent: • to the disadvantage of the client; or • to the advantage of a lawyer/third person. A lawyer is subject to discipline for using client information in a manner disadvantageous to the client or beneficial to the lawyer or a third-party without the client’s consent. Pennsylvania Rules of Professional Conduct Rule 1.6 20/20 Commission’s Proposals Requires a Lawyer to: • Make Reasonable Efforts • To Prevent Inadvertent or Unauthorized Disclosure • Of Client Information Question: What are “reasonable efforts?” ABA Rule 1.6 (c), comment 16 (emphasis added.) Factors for determining whether the Lawyer’s efforts are “reasonable” • Sensitivity of the information; • Likelihood of disclosure without additional safeguards; • Cost of employing additional safeguards; and • Difficulty of implementing additional safeguards; • Extent to which the safeguards will adversely affect the lawyer’s ability to represent clients (e.g. making software or device too difficult to use). Proposed Comment [16] to Model Rule 1.6 So, What Can a Lawyer Do to Protect Data? • GPS his computer and cell phone • • • • • (can lead to potential location and retrieval) Implement secure and strong passwords Install network safeguards and backups (to protect from 3d party access) Purge before destroying or replacing equipment Make sure his computer & phone are safe when accessing internet sites and data Do not send client information over 3d party Wi-Fi or “hot spots” (use only secure sites) Guidance from Other States • 19 States, including FL, CA, NY, PA • Identify Threats & Implement Data Policies • Inventory Devices Holding Data • Password Protect Devices • Supervise Non-Lawyers & Obtain Assurances • Sanitize Replaced or Destroyed Devices Issue 3 What Rules Apply to a Lawyer’s Communications with Potential Clients on the Internet? Solicitations Rules May Apply, Even if You are Not “Marketing” The Rules provide that Lawyers Should Not Use Electronic Contacts to Seek Employment Concerning a Matter Arising from a Particular Occurrence or Event: • From anyone with whom the lawyer has no contacts or attorney/client relationship When significant reason for doing so is pecuniary gain “Electronic contact” means communication initiated by a lawyer which will result in a live, interactive communication with any other person • Websites not included • “Chat room” discussions are included • ABA Model Rules of Professional Conduct 7.3(a), (b). Would a Lawyer’s Email to a Potential Client Violate the Bar’s Rules? Not under the 20/20 Commission’s Proposed Revisions: Communications transmitted over email or electronic means that do not involve realtime contact do not violate this Rule regarding solicitation. Proposed Comment [3] to ABA Model Rule 7.3. Issue 4 Are a Lawyer’s Online Profiles Subject to the Bar’s Rules? Are the Lawyer’s LinkedIn & Facebook Profiles Advertising? • Pennsylvania Bar regards LinkedIn Profiles as advertising • But the Pennsylvania Bar does NOT consider LinkedIn and Facebook Profiles as such. • Need not be submitted/reviewed • Not generally used to get clients • But may be different result if said “Call me if you’ve been fired” What if a Lawyer Designates Himself as a “Specialist” or “Expert” on LinkedIn? • “Specialties” field in LinkedIn profile • Rules mandate that only attorneys who obtain certification from the Pennsylvania Board of Legal Specialization may advertise as an “expert” or “specialist” in a legal field • Unless he holds an accreditation from the Board of Legal Certification, the Lawyer should leave the LinkedIn “specialties” field blank LinkedIn Recommendations • LinkedIn Connections can write Testimonials • Should Prescreen to Ensure Rule Compliance • LinkedIn setting • Allows View of Testimonials Before Available to Public • Potential Pitfalls: • Comparisons to other lawyers’ services ABA Model Rule 7.1 (e.g., “Best lawyer in Pennsylvania”) • Listing “specializations” when lawyer is not Board certified • Avoid making reciprocal recommendations • Prohibited by ABA Model Rule 7.2(b) • Giving anything of value to non-lawyer for soliciting prospective clients Issue 5 Do Bar’s Rules Apply to a Lawyer’s Online Directory Listings? Required Record Keeping for Online Listings When advertising in the public media (such as telephone directory, legal directory, online directory, the internet, and the like), a lawyer must: • Review all advertising and approve all statements and listings in writing; • Keep a copy of each advertising, with a record of when and where it was used, for four years after the publication, and • Display the statements and disclosures required by Rule 7.2. Pennsylvania Rules of Professional Conduct Rule 7.2(a), (b), (i). Issue 6 Should a Lawyer Send Client Data Via Email or with His Mobile Phone? Rules Regarding Email • Early ethics opinions allowed email only when necessary and with client’s prior approval. • More recent opinions say that it is not a rule violation to use unencrypted email unless unusual circumstances require enhanced security. • ABA Formal Ethics Op. No. 99-413 (1999) (Lawyers do not violate Rules by sending client’s information in unencrypted email if reasonable precautions are taken to protect confidentiality). 20/20 Commission’s Proposed Changes - Emphasize that the client may require special security measures not required by Rules or may consent to forego security measures required by Rules. - But do not address what additional steps may be required by federal or state law (such as data security laws and laws regarding unauthorized access to electronic information). Proposed Comment [16] to Model Rule 1.6 Issue 7 Are a Lawyer’s Blog or Facebook Posts Subject to the Rules? All Online Statements Must Be Truthful Rules apply to all online statements—Profile and Directory Listings, Blogs, Tweets, etc… “Whatever means are used to make known a lawyer’s services, statements about them must be truthful and nondeceptive.” “A lawyer shall not make or sponsor a false or misleading communication about the qualifications or services of any lawyer or firm.” Pennsylvania Rules of Professional Conduct Rule 7.1 & cmts. (1), (2) A Lawyer’s Statements are False or Misleading if: 1. 2. 3. 4. 5. 6. 7. 8. Contain material misrepresentation of fact or law; Omit necessary fact; Reference past successes or results; Likely to create unjustified expectation about results; Compare to another lawyer’s services; Imply influence over judge, legislature, or official; Designate competence areas without Board certification; or Use actor or model to portray a client. Pennsylvania Rules of Professional Conduct Rule 7.1 Should a Lawyer Let His Staff Use Personal Cell Phones to Do Work? Precautions in Using Personal Devices • Trend to allow employees use personal devices (v. company devices) • More trendy and functional (e.g., iPhones & iPads) • Less security capabilities • Places company data in hands of third-party suppliers • Risk for data breach • Best practice is to implement policy addressing issues such as: • Limiting employee privacy rights; • Expressly stating that company owns all data on these devices that sync to company networks; • Requiring passwords; and • Implementing remote wiping feature for lost or stolen devices. Issue 9 Rather than Deal with these Rules, can a Lawyer Just Say He Just Doesn’t Know Anything About Technology? A Lawyer Has a Duty of Competence He should act towards client’s interest with competence; commitment; and dedication. And should control his workload “so that each matter can be handled with diligence and competence.” And should “strive to become and remain proficient and competent in the practice of law.” Rules of Professional Conduct Rule 1.1, 1.3, and 1.4 ABA Rule 7.3(a), (b). ABA Rules—Competence Duty • Under Rule 1.1, competent representation requires: • Legal Knowledge; • Skill; • Thoroughness; and • Preparation. “reasonably necessary for the representation.” • 20/20 Commission revisions to comments would include the benefits and risks of relevant technology (cmt. 6) 20/20 Commission’s Reserved Areas for Future Inquiry • Inadvertent attorney-client relationships • Attorneys “friending” judges • Information gathering about adverse parties • Blogging and online discussion forums • Giving legal advice on the Internet • Disclosure of confidential information on the Internet 20/20 Comm’n Report, Sept. 20, 2010 Issue 10 Disciplinary Actions and Social Network? Disciplinary Action & Social Networking • Can Employers Base Disciplinary Action or Termination Decisions on a SNS page or post? • Typically, yes, if it does not violate discrimination or other employment laws. • BUT, employers should do so cautiously. Many questions to ask, for example: • How was the information obtained? (public post v. private post) • Was the SNS search performed consistently? • Is the source reputable? Legal Constraints on Employee Discipline • Some states have laws that prohibit employers from considering off-duty conduct when making adverse employment decisions • About nine states, including California, New York, Colorado, and North Dakota, have statutes known as “lifestyle discrimination” laws, which ban discrimination based on legal off-duty recreational behavior • An employer could arguably violate these laws by terminating an employee after discovering from social media that, for example, the employee was drinking the night before Legal Constraints on Employee Discipline • National Labor Relations Act- Section 7: protected concerted activity; applies to both union and non-union employees The NLRB Stakes Out its Position • NLRB found that Facebook post soliciting assistance from co-workers on the issue of job performance in order to prepare for a meeting with the boss was concerted activity. • Next, the NLRB found the Facebook posts were protected because they went to terms and conditions of employment. • Finally, even though there was swearing or sarcasm in some of the posts, the employee was still protected! The Knauz Decision • NLRB finds NO violation of NLRA when employer fired employees based on social network posts that were irrelevant to their working conditions. The Costco Decision • NLRB issued first social media policy decision on Sept. 7, 2012 • Finding: Costco policy—which prohibited Costco employees from making statements on social media that could damage the company or other employees’ reputations—could chill employees’ rights regarding protected concerted activity under the NLRA. • Finding consistent with NLRB’s three reports on social media issues. Examples of Policies that the NLRB has Found Violate §7 • Protecting confidential information and prohibiting the use of company logos, graphics, or videos of the employer’s facilities • Giant Foods- July 11, 2013 Advice Memorandum • The term “confidential information,” without limiting language, can reasonably be interpreted to include information concerning terms and conditions of employment. • Use of the company’s logo and trademarks while engaging in Section 7 activity would not infringe on any proprietary interest. Examples of Policies that the NLRB has Found Violate §7 • Prohibiting employees from using any social media • Prohibiting any communication or post that constitutes embarrassment, harassment or defamation of the employer or its officers, directors and employees • Quicken Loans—June 25, 2013 Decision • Prohibiting statements that lack truth or might damage the reputation or good will of the employer, its officers, directors, and employees Examples of Policies The NLRB Found Do Not Violate §7 • In the same report, the Board found certain activities involving Facebook or Twitter posts were not protected: • Newspaper employee terminated following a tweet about news headlines including homicides, several tweets with sexual content and tweets criticizing an area television station BUT the tweets were not shared with co-workers. NLRB found this was not concerted activity. • Employee terminated based on a Facebook conversation with a relative complaining about not getting a raise and working without tips. He did not discuss the posting with his co-workers and none of them responded, so not concerted activity. Ask Yourself… • Does Posting: • Seek to initiate, induce or prepare group action? • Reference conversations with co-workers that occurred before postings were made so that the posting is a logical outgrowth of those conversations? • Seek to bring group complaints to the attention of management? • Did any co-worker respond to the online post? • If so, what was the nature of that response? • Reference, involve or concern wages, hours, benefits, working conditions or other terms and conditions of employment? • So outrageous, disloyal or disparaging of the Company’s product or service so as to lose the protection of the Act? Issue 11 Social Media for Recruitment? Potential Liability Arising From Social Media in the Workplace Using Social Media for Recruitment • Attract Employees • Source of Candidates • Engage Candidate • Screen Applicants • “Close the Deal” What are You Likely to Find on a Social Networking Site? • Education History • Links to Profiles of Friends • Work History • Links to Blogs • Career Interests • Political Views • Hobbies • Memberships • Favorite Movies • Drug Use • Poor Judgment • Vacation Photos • Party Photos • Family Information Can an Employer Legally Decide Not to Hire a Candidate Based on a Review of Social Networking Sites? • Yes, so long as the employer does not violate state or federal discrimination laws, or other state statutes which prohibit the use of certain kinds of information. • There is no prohibition against using information that an applicant places in the public domain. However, use of protected demographic information such as race, gender, national origin, age and pregnancy, among others, is prohibited in hiring decisions. • Risks? Risks for Employers • Hiring Issues Associated with Using the Web • Viewing applicant’s personal information on SNS may trigger antidiscrimination laws • Access to information regarding protected status? • Age, disability/medical information, race, sex, religious beliefs, pregnancy, sexual orientation, military status, marital status or other protected characteristic (GINA) • Learning about applicant’s workers’ compensation claims history • Learn about criminal or arrest histories • Invasion of privacy So What Should You Do If You Want To Do Searches? • Problem: • A search may identify an applicant’s protected characteristics such as age, race, sexual orientation, marital status, arrests or other factors that should not be considered in a hiring decision • Solution • Have a non-decision maker conduct the search and filter out protected information So What Should You Do? • Problem: • Most of the good information about applicants on the internet requires you to get past security tools • Solution: • Do a better job interviewing. Do not use false identities or require applicant to provide you with passwords. If You Are Going to Do Searches • Establish Guidelines for Online/SNS Search of Applicants • Before you do a Search: • Determine how relevant the information is to the job • If you are going to do these searches: • ID appropriate searcher • Train searcher • Do them consistently • Document them • Consider using third-party service Negligent Referral • Facebook, LinkedIn, and Twitter allows users to post recommendations from their employers • Employee expects detailed favorable recommendation • Favorable on-line reference may conflict with employee performance evaluations • Negative online recommendation may be the basis for defamation claim Should You Ask for SNS Passwords from Applicants? • Facebook vows to end employers’ practice of asking for passwords from applicants (as well as for current employees) • Legal Protections: • Password Bills Effective as of 2013: Arkansas, California, Colorado, Delaware, Illinois, Maryland, Michigan, New Jersey, New Mexico, Nevada, Oregon (1/1/14) Utah, Vermont, and Washington • The Social Networking Online Protection Act (February 2013) • Introduced in the House Questions?