the ethics of law practice and legal marketing in a social media environment (iclef)

Presented by Cynthia Sharp• Professional CLE Speaker• Attorney Business Coach

The Ethics of Law PRACTICE AND LEGAL Marketing in a Social Media Environment

Event Sponsor:

March 14, 2013

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Preliminary Thoughts

•I would be really happy if we could cover the

following:

•I decided to attend “Social Media” because:

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Wake Up To Social Media!

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Attorneys Using Social Media

15%

43%56%

Quadrupled in 2 years!

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2012 Simply Zesty; Online PR & Social Media

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•2 Billion internet users in the world

•7 billion people in the world

•More than 1 billion Social Network users

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Facebook Friends

Cynthia Sharp

Bruce Steiner Ron Fatoullah

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Facebook Friends

Cynthia Sharp

Bruce Steiner Ron Fatoullah

Facts About

•100% of Fortune 500 Companies Have Executives on Linkedin

•200 Million Members

•Every Second - 2 New Member Joins

•100% of Fortune 500 Companies Have Executives on Linkedin

•200 Million Members

•Every Second - 2 New Member Joins

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1.6 billion search queries

300 million tweets

Social MediaPractical Applications

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• Marketing

• Practice Area

• Develop Internal Social Media Policy

• Compliance Procedures

• Criminal Defense

• Civil Litigation

• Litigation/Research Tool

• Marketing

• Practice Area

• Develop Internal Social Media Policy

• Compliance Procedures

• Criminal Defense

• Civil Litigation

• Litigation/Research Tool

Social Media

•New Case Law

•Interesting Ethical Issues

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Digital Immigrant orDigital Native?

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Social Media as a Marketing Tool

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STRATEGY

BRAND

PROFILE

EXECUTION

Information About Legal Services• Protected Form of Commercial

Speech

• Subject to Rules 4-7.1 - 7.5

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Information About Legal Services

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• 7.1 - Communication Concerning a Lawyer's Services• 7.2 - Advertising• 7.3 - Direct Contact with Prospective Clients• 7.4 - Communication of Fields of Practice and Specialization• 7.5 - Firm Names and Letterheads

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American Bar AssociationFormal Opinion 10-457

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Free Commercial Speech or Regulated Attorney

Advertising

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blawgsearch.justia.com

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• Recommendations feature

• “Specialties” Field

• “Answers” Section

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Use Common Sense!

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ICLEF @ICLEFFamily #Law Case Review re: child support due on irregular bonus income. #legal http://ow.ly/ilV4E  https://twitter.com/ICLEFMarch 5, 2013

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www.lextweet.com

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Research Tool

Write down 3 ways that you use the internet to

research

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www.jdsupra.com

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Citation Forms Developed

Rittman, S. (Spring 2008). Don’t Use the “R” Word. Retrieved on January 25, 2011 from

www.mo-legal-ethics.org

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legalonramp.com

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Litigation Tool

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Mining Information•Vetting Jurors

•Pretexting (“Friending”)

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Internet Research by Jurors

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Discovery

•Warn clients not to discuss their case

online

•Standard Applied: Reasonably calculated to

lead to discovery of admissible evidence

•Notice to produce

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Technical Revolution - Ethical Evolution

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Confidentiality Notice

This electronic transmission and any attached documents or

other writings are confidential and are for the sole use of the

intended recipient(s) identified above. This message may

contain information that is privileged, confidential or

otherwise protected from disclosure under applicable law. If

the receiver of this information is not the intended recipient,

or the employee, or agent responsible for delivering the

information to the intended recipient, you are hereby notified

that any use, reading, dissemination, distribution, copying or

storage of this information is strictly prohibited. If you have

received this information in error, please notify the sender by

return email and delete the electronic transmission,

including all attachments from your system.

This electronic transmission and any attached documents or

other writings are confidential and are for the sole use of the

intended recipient(s) identified above. This message may

contain information that is privileged, confidential or

otherwise protected from disclosure under applicable law. If

the receiver of this information is not the intended recipient,

or the employee, or agent responsible for delivering the

information to the intended recipient, you are hereby notified

that any use, reading, dissemination, distribution, copying or

storage of this information is strictly prohibited. If you have

received this information in error, please notify the sender by

return email and delete the electronic transmission,

including all attachments from your system.

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Ethical Evolution

•Terminology•Competence•Confidentiality•Communication•Duties to Prospective

Clients•Receipt of Erroneously

Sent Document•Supervision of

NonLawyer Assistants•Advertising

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TerminologyMRPC 1.0 Terminology

(o) Writing or Written

Comment 9 to MRPC 1.0 {Screening}

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“To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.”

- Comment 6 to MRPC 1.1 (as amended)

Competence

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Redaction Issues

Long gone are the days when the attorney duty of confidentiality imposed by Model Rule 1.6 was satisfied by maintaining a fireproof steel locked filing cabinet behind a secured office door. The technological revolution has taken us beyond the world of desktop computers with a dedicated server to the stratosphere of cloud computing and the genius of smartphones and electronic tablets.The portability of our “second brain” results in additional ethical responsibilities that must not be ignored. Lawyers’ obligations have radically changed in light of the methods by which confidential client and personal information is now carried and stored.

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Data Disaster

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Duty of Confidentiality

MRPC 1.6

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Communication“... A lawyer should promptly respond to or acknowledge client communications.”

- Comment [4] of MRPC 1.4 (as amended)

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Duties to Prospective Clients “...[a] person becomes a

prospective client by consulting with a lawyer about a client-lawyer relationship with respect to a matter”.

- Comment 2 to MRPC 1.18 (as amended)

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Does a Communication Constitute a Consultation?

•Did the lawyer encourage or solicit inquiries about a proposed representation?

•Did the person encounter any warnings or cautionary statements that were intended to limit, condition, waive or disclaim the lawyer’s obligations?

•Were those warnings or cautionary statements clear and reasonably understandable?

•Did the lawyer act or communicate in a manner that was contrary to the warnings or cautionary statements?

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Receipt of Erroneously Sent Documents

Lawyer receiving electronically stored information that he or she knows or reasonably should know was sent inadvertently must  promptly notify the sender of the mistake (Model Rule 4.4(b)) 

  Duty to notify extends to metadata. (Comment 2)

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Recommended Metadata Scrubbers

Metadata Assistant: http://www.payneconsulting.com/products/metadataretail/

iScrub: http://esqinc.com/section/products/2/iscrub.htmlWorkshare Protect: http://www.workshare.com/products/wsprotect/Metadact: http://www.litera.com/Products/Metadact%AE.aspx

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Do You Secure PDF Files Before You Transmit?

Suggested Office Policy: “When there is no legitimate reason to transmit an editable document, we will always send SECURE PDFs.”

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You Cannot Delegate Ethical Responsibilities

Model Rule 5.3 requires attorneys who

outsource work to non-attorneys to “make

reasonable efforts to ensure that the non-

lawyers’ services are provided in a

manner that is compatible with the

lawyer’s professional obligations”.

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Attorney Advertising RulesLawyers may pay Internet-based lead

generators for generating client leads, as long as the lead generator does not “recommend” the lawyer.   (MRPC 7.2, Comment 5)

Only a “target communication initiated by the lawyer” directed to a “specific person” that “offers to provide” legal services is a solicitation. Communications to the general public, including Internet banners, are not solicitations. (MRPC 7.3)

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“A lawyer shall act with reasonable diligence and promptness in representing a client.”

Comment 2 - “A lawyer's work load must be controlled so that each matter can be handled competently.”

Rule 1-3

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www.evernote.com

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www.pomodorotechnique.com

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Law Firm Social Media Policy

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Online or In Line

•Keep client confidences

•Avoid appearance of establishing client-attorney

relationship

•Be polite

•Don’t fight

•Don’t bad mouth law firm, colleagues or judges.

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Moving Forward•Did you learn anything new today?

•Did you gain any insight into yourself or

someone else?

•Do you plan to change any of your behaviors

as a result of today’s session?

Evaluations

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