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SOCIAL MEDIA – RISK MANAGEMENT

Robert M. Isackson, Orrick Herrington & Sutcliffe LLP Copyright © 2015 Orrick, Herrington & Sutcliffe LLP All rights Reserved

DISCLAIMER: THE VIEWS EXPRESSED HEREIN AND IN THE ACCOMPANYING PRESENTATION ARE THOSE SOLELY OF THE AUTHOR AND NOT OF HIS FIRM (ORRICK) OR ITS ATTORNEYS OR CLIENTS

Bridge-the-Gap II for Newly Admitted New York Attorneys 2015:

Ethics in Social Media for Lawyers

DECEMBER 9, 2015

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Social Media-Risk Management

Introduction … if you do: Your use of other’s social media, Your personal use of social media; and … if you don’t: Malpractice Considerations

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Social Media-Defined

New York City Bar Ass’n – Formal Opinion 2012-2, at 3. “We understand ‘social media’ to be services or websites

people join voluntarily in order to interact, communicate, or stay in touch with a group of users, sometimes called a ‘network.’ Most such services allow users to create personal profiles, and some allow users to post pictures and messages about their daily lives.”

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Social Media-Defined

New York State Bar Ass’n – Social Medial Ethics Guidelines (Updated June 9, 2015)

“Social Media (also called a social network). An Internet-

based service allowing people to share content and respond to postings by others. Popular examples include Facebook, Twitter, YouTube, Google+, LinkedIn, Foursquare, Pinterest, Instagram, Snapchat, Yik Yak and Reddit. Social media may be viewed via websites, mobile or desktop applications, text messaging or other electronic means.”

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Social Media – A Moving Target

New York State Bar Ass’n – Social Medial Ethics Guidelines (Updated June 9, 2015) at 1.

“These Guidelines are guiding principles and are not ‘best

practices.’ The World of social media is a nascent area that is rapidly changing and ‘best practices’ will continue to evolve to keep pace with developments. … [E]ven where jurisdiction have identical ethics rules, ethics opinions addressing a lawyer’s permitted use of social media may differ due to varying jurisdictions’ different social mores, population bases and historical approaches to their own ethics rules and opinions.”

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Social Media-Risk Management

… if you do: Your use of other’s social media Investigation/Evidence Venire/Jury Members Judges

• 1. WHO BELIEVES THAT YOU CAN RESEARCH THE SOCIAL MEDIA OF A JUDGE YOU ARE APPEARING BEFORE?

• Yes

• No

» Please switch to the Polling tab on your iPad

Polling Question: 1

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Social Media - Research

New York City Bar Ass’n – Formal Opinion 2012-02, at 2 (emphasis in original).

“[I]f a juror were to (i) receive a ‘friend’ request (or similar invitation to share information on a social network site) as a result of an attorney’s research, or (ii) otherwise were to learn of the attorney’s viewing or attempted viewing of the juror’s pages, posts, or comments, that would constitute a prohibited communication if the attorney was aware that her actions would cause the juror to receive such method or notification.”

An inadvertent or unintended notification might be a prohibited communication.

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Social Media - Research

New York City Bar Ass’n – Formal Opinion 2012-02, at 5. “It is the duty of the attorney to understand the functionality

and privacy setting of any service she wishes to utilize for research, and to be aware of any change in the platforms’ settings or policies to ensure that no communication is received by a juror or venire member.”

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Social Media - Risk Management

… if you do: Your personal use of social media No Problem if you: post only truthful objective biographical information NY County Lawyers Ass’n Formal Opinion 748 (March 10, 2015)

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Social Media – Advertising and Promotion

New York State Rules of Professional Conduct, Rule 1.0(a)

“Advertisement” means any public or private

communication made by or on behalf of a lawyer or

law firm about that lawyer or law firm’s services, the

primary purpose of which is for the retention of the

lawyer or law firm. It does not include

communications to existing clients or other lawyers.

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Social Media – Advertising and Promotion

New York State Bar Ass’n – Social Medial Ethics Guidelines (Updated June 9, 2015) Guideline 1.A (emphasis added).

““A lawyer’s social media profile that is used only for

personal purposes (i.e., to maintain contact with

friends and family) is not subject to attorney

advertising and solicitation rules. However, a

social media profile that a lawyer primarily uses

for the purpose of her or her law firm’s business is subject to such rules.”

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Social Media-Risk Management

… if you do: Your personal use of social media Problematic if you: post “skills,” “endorsements,” and “recommendations” Let others make such posts Take down inappropriate posts Curative Posts for those you can’t take down post “Specializations” without certifications NY County Lawyers Ass’n Formal Opinion 748 (March 10, 2015)

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Social Media-Risk Management

… if you do: Your personal use of social media Problematic if you: post “skills,” “endorsements,” and “recommendations” Let others make such posts Take down inappropriate posts Curative Posts for those you can’t take down post “Specializations” without certifications NY County Lawyers Ass’n Formal Opinion 748 (March 10, 2015)

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Social Media-Risk Management

“If an attorney’s LinkedIn profile includes a detailed description of practice areas and types of work done in prior employemt, the user should include the words “Attorney Advertising” on the lawyer’s LinkedIn profile”

NY County Lawyers Ass’n Formal Opinion 748 (March 10, 2015), at 5.

Social Media – Promotion

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Social Media-Risk Management

“If an attorney also includes (1) statements that are reasonably likely to create an expectation about results the lawyer can achieve; (2) statements that compare the lawyer’s services with the services of other lawyers; (3) testimonials or endorsement of clients; (4) statements describing or characterizing the quality of the lawyer’s or law firm’s services, the attorney should also include the disclaimer “Prior results do not guarantee a similar outcome.”

NY County Lawyers Ass’n Formal Opinion 748 (March 10, 2015), at 5

(emphasis added).

Social Media – Promotion

Social Media – Promotion

• 2. WERE THE TWEETS DESCRIBED CONSIDERED ATTORNEY ADVERTISING?

• Yes

• No

Polling question: 2

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Social Media – Promotion

Social Media – Promotion

Social Media – Promotion

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Social Media – Promotion

Republishing Links to

Social Media

• 3. What if you don’t use social media in your law practice? Are you at risk of liability for malpractice?

• Yes

• No

Polling Question: 3

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Social Media-Risk Management

… if you don’t:

Is it: Malpractice?

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Social Media – Malpractice

Malpractice requires establishing:

(1) A viable attorney client relationship;

(2) The attorney’s neglect of a reasonable duty; and

(3) The attorney’s negligence was the proximate

cause of the client’s damages.

Presumption:

An attorney is required to use the degree of care,

skill, and diligence which is commonly possessed

and exercised by attorneys practicing in the same

jurisdiction.

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Social Media – Ethical Rules Rule 1.1 Competence

A lawyer should provide competent representation to

a client. Competent representation requires the legal

knowledge, skill, thoroughness and preparation

reasonably necessary for the representation.…

A lawyer shall not intentionally:

fail to seek the objectives of the client through

reasonably available means permitted by law and

these Rules; or

prejudice or damage the client during the course of

the representation except as permitted or required by

these Rules. New York Rules of Professional Conduct (May 1, 2013).

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Social Media – Ethical Rules

Rule 1.3 Diligence

(a) A lawyer shall act with reasonable diligence and

promptness in representing a client.

(b) A lawyer shall not neglect a legal matter entrusted

to the lawyer.

(c) A lawyer shall not intentionally fail to carry out a

contract of employment entered into with a client for

professional services, but the lawyer may withdraw

as permitted under these Rules. New York Rules of Professional Conduct (May 1, 2013).

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Social Media – Malpractice Concerns

Johnson v. McCullough, 306 S.W.3d 551, 558-59

(Mo. 2010)

The Missouri Supreme Court stated:

“In light of advances in technology allowing greater

access to information that can inform a trial court

about the past litigation history of venire members, it

is appropriate to place a greater burden on the

parties to bring such matters to the court’s attention

at an earlier stage.”

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Social Media – Ethical Rules

Rule 1.4 Communication

(a) A lawyer shall

(1) promptly inform the client of: …

(ii) any information required by court rule

or other law to be communicated to a client;…. New York Rules of Professional Conduct (May 1, 2013).

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Social Media – Malpractice Concerns

“ permissible … to review what a client plans to publish … in

advance”

“A lawyer may counsel the witness to publish truthful information

favorable to the lawyer’s client; discuss the significance and

implications of social media posts (including their content and

advisability); advise the client how social media posts may be

received and/or presented by … adversaries …. Discuss the

possibility that the legal adversary may obtain access to ‘private’

social media pages through court orders or compulsory process;

review how the factual context of the posts may affect their

perceptions, [and] review … posts … and discuss possible lines of

cross-examination.” NY County Lawyers Ass’n Formal Opinion 745 (July 2, 2013), at 4

“Churn that bill, baby!”

“That bill shall know no limits.”

“Already 200k over our estimate -

that's Team DLA Piper!”

It’s Not Funny Because It’s True

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“Three may keep a secret, as long as two of them are dead.”

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“We came up with a big one. Reclass the disbursements.”

“You always do in the last hours. That’s

why we get the 10 or 20% bonus. Tell [your wife], stick with me! We’ll buy a ski house next. Just need to keep the ship afloat….”

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Social Media-Risk Management

WHAT YOU WRITE LASTS FOREVER

SOCIAL MEDIA – RISK MANAGEMENT

THANK YOU

Robert M. Isackson Orrick, Herrington & Sutcliffe LLP 212 506 5280 rmisackson@orrick.com