The Duty of Professional Responsibility When Using Social Media in Your Practice

Presented by: Jacquiline M. Wagner, Esq.

For almost twenty years, Jacquiline Wagner, Esq. has enjoyed the honor of training hundreds of employers and supervisors in an assortment of industries in both private and public sector concerning all aspects of Human Resources law, including sexual harassment prevention, I-9 procedures, no-match letter protocols, alternative work schedules, reasonable accommodations, evolved leadership, cultural diversity awareness, sensitivity, and a wide array of continuing education topics.

Currently, Ms. Wagner is the principal sexual harassment prevention, reasonable accommodations, evolved leadership and continuing education trainer on behalf of the Office of General Counsel for the Los Angeles Unified School District, where she is Assistant General Counsel.**

Ms. Wagner also the proud President of JMW Seminars, where we specialize in all varieties of HR legal and leadership training, including live-audience, e-learning, webinar and recorded presentations. I invite you to visit my "grassroots" (and very skeletal, yet burgeoning) website, www.jmwseminars.com.

**(LAUSD does not sponsor, endorse or assume liability for JMW Seminars. No public funds, materials, resources, supplies or equipment are used for or by JMW Seminars.)

DISCLAIMER The following materials and accompanying Access MCLE, LLC audio CLE program are for instructional purposes only. Nothing herein constitutes, is intended to constitute, or should be relied on as, legal advice. The author expressly disclaims any responsibility for any direct or consequential damages related in any way to anything contained in the materials or program, which are provided on an “as-is” basis and should be independently verified by experienced counsel before being applied to actual matter. By proceeding further you expressly accept and agree to Author’s absolute and unqualified disclaimer of liability..

Using a Mobile Device to Access Social Media 5

Rendering a Legal Opinion on Social Media 6

Discussing Cases on Social Media 7

Ethical Duty to Preserve Information 8

Social Media Sleuthing 9

Making a Pre-textual Friend Request on Social Media 10

Ex Parte "Friend" Request to a Represented Party 11

Using Social Media in the Jury Selection Process 12

Advertising Using Social Media 13

Implication of a Specialty Via Social Media 14

Receiving Endorsements on Social Media 15

Using Social Media in Your Practice 16

1

1.1: Competence 1.6: Confidentiality of Information 1.18: Duties To Prospective Client 3.4: Fairness To Opposing Party And Counsel 3.5: Impartiality And Decorum Of The Tribunal 4.1: Truthfulness In Statements To Others 4.2: Communication with Person Represented by Counsel 5.3: Responsibilities 7.1: Communication Concerning a Lawyer's Services 7.2: Advertising 7.3: Solicitation of Clients; 7.4: Communication of Fields of Practice and Specialization 8.4: Misconduct

ABA - Model Rules of Professional Conduct

Password Protect

Proper Destruction of Defunct Devices

Type of Technology Used

Location-Based Services

ABA Model Rule of Professional Responsibility 1.18: Duties To Prospective Client

ABA Model Rule 1.1: Competence

Commercial and Federal Litigation Section, New York State Bar Association, Social Media Ethics Guidelines

ABA Model Rule 1.6: Confidentiality of Information

Comments 2, 3, 4

ABA Model Rule 3.4: Fairness To Opposing Party And Counsel

Lester v. Allied Concrete (2012)

Philadelphia Bar Association Professional Guidance Committee, Opinion 2014-5

Pennsylvania Bar Association Formal Opinion 2014-300, Ethical Obligations For Attorneys Using Social Media

New York State Bar Association’s Social Media Ethics Guidelines- Guideline No. 4.A

North Carolina State Bar, Formal Ethics Opinion 5

(1) Making a pretextual friend request on social media

(2) Making an Ex Parte "Friend" Request to a Represented Party; and

(3) Using Social Media in Jury Selection

ABA Model Rule 4.1: Truthfulness In Statements To Others

ABA Model Rule 8.4: Misconduct

ABA Model Rule 5.3: Responsibilities Regarding Nonlawyer Assistance

ABA Model Rule 4.2: Communication with Person Represented by Counsel

Legal Ethics Committee,

San Diego County

Bar Association,

Legal Ethics

Opinion No. 2011-2

Johnson v. McCullough

ABA Model Rule 3.5: Impartiality And Decorum of The Tribunal

American Bar Association, Standing Committee On Ethics and Professional Responsibility, Formal Opinion 466

Commercial and Federal Litigation Section, New York State Bar Association, Social Media Guidelines, Guideline No. 5.B

ABA Model Rule 7.1: Communication Concerning a Lawyer's Services

ABA Model Rule 7.2: Advertising

ABA Model Rule 7.3: Solicitation of Clients

The State Bar Of California Standing Committee On Professional Responsibility And Conduct, Formal Opinion No. 2012-186

Commercial and Federal Litigation Section, New York State Bar Association, Social Media Guidelines, Guideline No. 1A

ABA Model Rule 7.4: Communication of Fields of Practice and Specialization

New York State Bar Association, Committee on Professional Ethics, Opinion 972

Commercial and Federal Litigation Section, New York State Bar Association, Social Media Guidelines, Guideline No. 1.B

Philadelphia Bar Association Professional Guidance Committee, Opinion 2012-8

ABA Model Rule 7.1

1. Treat Social Media as You Would Any Other Form of Communication

2. Provide Value to Your Friends and Connections

3. Stay Current

4. When in Doubt- Just Don’t Do It

I. Using a Mobile Device to Access Social Media II. Rendering a Legal Opinion on Social Media III. Discussing Cases on Social Media IV. Ethical Duty to Preserve Information V. Making a Pretextual Friend Request on Social Media VI. Making an Ex Parte "Friend" Request to a Represented

Party VII. Using Social Media in the Jury Selection Process VIII. Advertising Using Social Media IX. Implication of a Specialty Via Social Media X. Receiving Endorsements on Social Media and XII. Best Practices When Using Social Media in Your

Practice