Do’s and Don’ts of Social Media in Law Firms 1.0 hour MO MCLE Ethics Credit

Allison Price Discussion on what Social Networking is and how it can positively and negatively impact a law firm practice Consequences of using Social Media improperly What firms should consider when deciding whether to “virtually network”

The Risks of Social Media/Networking From a Law Firm Perspective

What is Social Media/Networking Communicating with others over the Internet for social or professional purposes, Social Networks  Facebook  Linked In  YouTube  MySpace  Twitter Listserves Blogs

Law firms’ official online presence – websites and legal directories Law firm’s unofficial online presence – lawyers and staff creating social networking profiles and web pages/blogs that reference their affiliation with the Law firm and/or mention Law firm activities.

Statistics Social Networking accounts for over 25% of all United States activity on the Internet. There are 43 Missouri Bar Committees, each with a subscription listserve for its members. ABA’s 2010 Legal Technology Survey found that 56% of attorneys in private practice have a presence on social networking sites. In 2009 it was 43% and in 2008 it was 15%.

Ethical and Liability Risks  Confidentiality  Unintended Atty-Client Relationship  Conflicts of Interests  Ex Parte Contact  Ethical Breaches in Advertising  Ethical Misconduct

Attorney-Client Relationship Unintended A/C Relationship  Sites, such as LinkedIn, allow users to post and answer questions. Lawyers who answer questions may be characterized as providing legal advice, thus, establishing an inadvertent A/C relationship.  Providing general legal advice can lead to the Unauthorized Practice of Law.  Giving advice without knowing the parties involved can cause serious Conflicts of Interest. ABA Formal Opinion  No bright line rule b/t legal advice and legal information. Atty who poses and answers hypothetical questions will not generally be characterized as providing legal advice.

Confidentiality Issues Rule 1.6 generally prohibits a lawyer from revealing “information relating to the representation of a client.”  All information whether disclosed to the public or not  Includes client Identity Atty updates FB status that he is drafting a MTD on particular grounds – This could reveal confidential information Illinois Assistant PD gets 60-day suspension for posting information on her blog about her cases load.  Referred to her clients by either their first names only, derivative of the name, or jail ID number  Disclosed only “public” information

Seeking advice on listserves -  Oregon Bar - Inquiries that are couched as hypotheticals general do not violate Rule 1.6, but atty must get client consent before posting facts allowing someone to determine client’s identity.

Conflicts of Interest Participant’s identities are not always known or can be purposefully concealed  Rule 1.7 Current Clients  Giving advice to a party that is adverse to a current firm client  Issue conflict = taking a position on a legal issue contrary to a current firm client  Rule 1.18 Prospective Clients  Confidential info conflict = may require firm to withdraw from current client if info is material to that client’s matter and must be kept confidential as to the prospective client

Advertising and Solicitation “Getting your name out there” is often a primary goal of social networking. MO. Rule Defines Attorney Advertising  lists telephone directory, legal directory, newspaper, periodical, outdoor advertising, radio, tv, direct mail. Silent on internet sites. Texas Bar - Disseminating videos on video-sharing websites Connecticut Bar - LinkedIn and other “personal pages” describing law practice ABA Formal Opinion (10-457) – if online activity promotes a law practice it is advertising.

Content of Advertising must conform to detailed requirements of Rule 7  Not false, misleading or unfair  Doesn’t create unjustified expectations  Doesn’t imply atty is a specialist or expert  LinkedIn asks for “Specialties”; Violative if not including limiting language of Rule 7.4.  That neither the Supreme Court of Missouri nor The Missouri Bar reviews or approves certifying organizations or specialist designations  Conspicuous discloser Rule 7.2(f)  “The choice of a lawyer is an important decision and should not be based solely upon advertisements.”

Misconduct Formal or informal discovery of the social network profiles and postings of opponents, witnesses, and even potential jurors is becoming commonplace in modern litigation. Accessing social networking sites to gain intelligence on opponents or third ptys may violate Rule 8.4(c)  engaging in conduct involving dishonesty, fraud, deceit or misrep. Philadelphia Bar – lawyer hires investigator to “friend” a witness without revealing investigator’s affiliation with the law firm. New York Bar – attys may view social networking page of opposing ptys or witnesses that are public and accessible without a “friend” request.

Florida – atty posted that a judge was “methodically depriving criminal defendants of their right to a speedy trial” and stated the judge was “evil, unfair witch”.  Rcvd public reprimand and $1,250 fine for violating:  Rule 4-8.2(a)  making false or reckless statements regarding the qualifications or integrity of a judge  Rule 4-8.4(d)  engaging in professional conduct that is prejudicial to the administration of justice

Professional Liability Concerns Creating an inadvertant atty-client relationship and conflicts. Overindulging in social networking may compromise a lawyer’s work and lead to mistakes. Consulted lawyer can be sued for legal malpractice if advice is incorrect. “Puffing” can hold lawyers to higher standards in legal malpractice cases. Inappropriate posts can also lead to exposure for defamation, libel or other torts.  Missouri (Eastern District) affirmed a jury’s decision that a man pay $150k after posting negative business reviews on-line of his former business partner.

Employment Liability Regulating social networking usage of employees - Partners and associates “friend” their subordinates -  Can lead to a duty to investigate or take disciplinary action Employers view potential employees profiles -  Can discover something about one’s protected class which can be imputed to the firm Employer agreed to revise its social networking policy after firing an employee who posted negative comments about his supervisor on FB.  NLR Board claimed the remarks were protected by the NLR Act.

Loss Prevention Suggestions Social Networking Policy: Never disclose confidential info. Be careful using hypotheticals without a client’s approval. Familiarize attorneys with the advertising rules of their states. Avoid claims of specialization or expertise. Avoid providing legal advice; If consulted atty should follow firm’s intake policies, including running conflicts. Be careful in using “competitive intelligence”; never pretext to obtain information.  Clayton High School Principal Never communicate with someone represented by counsel.

Judge Kerr Discuss real life situations she may have seen or know about where Social Media is trying to come in as evidence in cases Recent decisions or ethic opinions that touch on this subject

Christy Pashia Business etiquette – The New Rules in a Digital Age (Linked In, Facebook, Twitter, , Instant Messaging, Mobile Devices, Phone/Video/Web Conferencing (Skype), Sticky Situations Should law firms consider looking at an individual’s Social Networking sites when hiring someone?

Social Media and Employment HOT TOPIC: How are employers today using Social Media to research prospective hires? What are employers looking for when searching online to learn more about prospective hires? Pros & Cons of researching prospective hires online

© 2011 Robert Half Legal. An Equal Opportunity Employer.

The New Rules of Etiquette You’ve mastered traditional business etiquette, seamlessly reaching for the right fork during a professional dinner while engaging in animated conversation with your dining companions. But at a time in which more business discussions take place via LinkedIn, Twitter or than over cocktails and hors d’oeuvres, it’s just as important – if not more so- to know how to present yourself professionally using digital tools. Given the newness of social media and other communications vehicles, it’s easy to say or do the wrong thing. Unfortunately, missteps in this area can have lasting consequences: An online mistake can show up next to your name in an Internet search for years to come. To help you avoid falling victim to such blunders, Robert Half has created this guide offering insights into digital protocols, as well as advice for handling sticky situations. The information and tips are based on surveys of executives, independent research, input from social media and etiquette experts, and our own experiences working with job candidate and clients throughout North America.

Overview S OCIAL M EDIA CAN BE A GREAT TOOL TO USE FOR YOUR FIRM AND / OR CAREER – JUST MAKE SURE YOU ARE USING IT RIGHT ! Starting your “Digital Footprint” Professional networking sites (LinkedIn) Social networking sites (Facebook) Twitter Networking in just five minutes a day

What Does Your Digital Footprint Say About You? Search yourself regularly – Set up alerts If you have a common name, use a variation, such as including your middle name Post information that adds to your credibility – Blog posts in your industry – Participation in LinkedIn groups – Start your own social media feeds

Complete your profile Take notice Prioritize quality over quantity Request recommendations individually LinkedIn Networking Tips

Make the connection clear Go ahead – use the form letter! Protect your contacts Recommend thoughtfully – Check your company’s policy – Avoid “payback” Mark Jones Project Manager XYZ Company

Social Networking Sites, Including Facebook Is it okay to “friend” your boss on Facebook?

To Friend or Not to Friend? Executives were asked, “How comfortable would you feel being ‘friended’ by the following individuals on Facebook?” Their responses: Source: Robert Half survey of 249 senior executives at the largest companies in the United States and Canada Your bossYour coworkerPeople you manage Very comfortable15%10% Somewhat comfortable 23%37%27% Not very comfortable17%15%18% Not comfortable at all 38%32%39% Don’t know7%6%

Social Networking Tips Get a vanity URL – (e.g., Include a personal photo, but not too personal Respect the wall – Regularly check your privacy settings Keep it focused – Limit sharing of games, quiz results

Social Networking Tips Ask before you tag Don’t be a pest Don’t poke Keep it private

Test Your Twitter I.Q. What’s a “Twibe?” What does “RT” stand for? What’s a “Fail Whale?” © 2011 Twitter.com

Twitter Tips Introduce yourself Listen Add value Tweet regularly Pay it forward Joe Business

Twitter Tips Say thanks Keep it light Be open But not too open Connect your LinkedIn and Twitter accounts using the hash tag #in when appropriate

Tend to Your Network in Just Five Minutes a Day Do small favors Offer introductions Add someone new each week Join up

Conclusion Social Media, when used properly and within the confines of an appropriate policy, can be a great tool for your business and career Remember – once information is out there, you can’t take it back! Present your most positive self and know your company’s policies surrounding social media

Do’s and Don’ts of Social Media in Law Firms 1.0 hour MO MCLE Ethics Credit