The slides from my 4/30/12 CLE presentation at Cardozo School of Law in New York City.

1. SOCIAL MEDIA
AND LEGAL ETHICS
Prof. Jonathan I. Ezor
Touro Law Center
jezor@tourolaw.edu
@ProfJonathan on Twitter
Cardozo CLE
April 30, 2012

2. Electronic
Communications Crucial
for All Businesspeople
• Multiple channels of electronic business
communication
– E-mail
– Text messages
– Web sites
– Videoconferencing
– Social media
– Others
• Can be one-way, two-way or multipoint
jezor@tourolaw.edu

3. Common Challenges of Electronic
Business Communication
• Addressing and attachment errors
• Lack of nuance & tone
• Heightened expectations of responsiveness
• Informality
• Compliance
• Management
jezor@tourolaw.edu

4. Attorneys’ Ethical
Obligations Add to
Challenges
• Rules of Professional Conduct impact on attorney
communication
• Lawyers must ensure compliance with those as
well as with good business practices
• Confidentiality biggest potential breach
jezor@tourolaw.edu

7. Concluding Paragraph from
ABA Technology Proposal
• Technology can increase the quality of legal
services, reduce the cost of legal services to existing
clients, and enable lawyers to represent clients who might
not otherwise have been able to afford those services.
Lawyers, however, need to understand that technology can
pose certain risks to clients’ confidential information and
that reasonable safeguards are ethically required. The
Commission’s proposals are designed to help lawyers
understand these risks so that they can take appropriate
and reasonable measures when taking advantage of
technology’s many benefits….
jezor@tourolaw.edu

10. “Adopting” A Listing
• Ok, but beware of issues like those
discussed in SC Ethics Advisory Op. 09-10
– The lawyer must monitor the “claimed” listing
to make sure all comments are in conformity
with the ethical rules, especially the rules for
attorney advertising writing of things like
testimonials and client endorsements that
create unjustified expectations, and
comparisons
• Be careful when linking to another site!
jezor@tourolaw.edu

11. Recommendations
• LinkedIn allows parties to “recommend” the work
of a another participant. Issues?
• What about asking a client to recommend your
work?
jezor@tourolaw.edu

12. Recommendations
• Be mindful of rules that place limitations on the
use and content of testimonials
• Model Rule 4.1 (duty of candor) prohibits the
making of a false statement of material fact to a
third person
– Beware of possible exaggerations regarding your
biography, experience, etc.
• What about asking a Judge to recommend you?
• What about announcing on Facebook or LinkedIn
that you just won a big jury trial or negotiated a
big deal?
jezor@tourolaw.edu

13. Recommendations
• Depending on the rules in your
jurisdiction, this could require you to add
a disclaimer along the lines of “results will
vary in each case” or similar language
• A related issue, depending on the content
of your blogs or tweets
– Could they be governed by your state’s
restrictions on lawyer advertising?
– If so, what are your obligations?
jezor@tourolaw.edu

14. Recommendations
• LinkedIn allows users to provide professional information
under “specialties.” Are there any issues with that?
jezor@tourolaw.edu

15. Recommendations
• Depending on the content, it could run afoul of
bar rules, such as NY Rule 7.4(a), that prohibit
attorneys from claiming they are “specialists” in
a certain field
• Any other risks in posting information about your
matters?
jezor@tourolaw.edu

16. Lying To A Tribunal
• Model Rule 3.3 prohibits attorneys from
making a false statement of fact to a
tribunal
• New connections via social media provide
“channels” for discovery of such
statements
jezor@tourolaw.edu

19. Investigative Issues
• How is it being used?
– Employment background check?
– Information about opposing counsel? Judge?
– Information about parties? Witnesses?
Jurors?
• Front page article in The Washington Post
(May 29, 2010) about the increasing use of
subpoenas to obtain information from
social networking sites
jezor@tourolaw.edu

26. CPLR §4506

27. Friending Issues
• In most jurisdictions, a judge and attorney who
appears before the judge can be “friends”; e.g.
New York:
jezor@tourolaw.edu

28. Other States’ Ethics
Opinions on Friending
• Permissible:
– SC Op. 17-2009 (2009)
– Ky. Op. JE-119 (2010)
– Ohio Op. 2010-7 (Dec. 3, 2010)
• But NOT in Florida, Op. 2009-20 (2009)
– A judge cannot lend the prestige of her office
to advance the private interests of others or
convey an impression that some are in a
special position of influence
jezor@tourolaw.edu

29. Friending Issues
• Other friending issues with judges?
– In re Public Reprimand of Terry, Inquiry No. 08-
234 (Apr. 1, 2009)
– http://www.aoc.state.nc.us/www/public/coa/jsc/
publicreprimands/jsc08-234.pdf
– N.C. child custody and support case
• Judge friended defense counsel and saw information
posted by the defense counsel about the case
– Asking how he could prove the negative that his client
did not have an affair
– Noting that he had a wise judge (to which the judge
responded that he had two very good parents to
choose from)
– Asking how long the trial would last
jezor@tourolaw.edu

30. Friending Issues
• Other issues with respect to whom an attorney
can friend?
– Opposing counsel?
– Parties to a dispute in which you are counsel?
– Witnesses in an active case
jezor@tourolaw.edu

31. “Fake” User Profiles
• An attorney was reprimanded because he hid his
real identity and posed as a teacher and posted
on classmates.com that another teacher had
engaged in sex with students – In re
Carpenter, 95 P.3d 203 (Or. 2004)
• Fake patient profiles in the healthcare space
jezor@tourolaw.edu

32. Blogging And Other
Interactive Media
• LinkedIn allows users to post and answer
questions; bloggers and tweeters often address
legal issues; and sites like “Counsel.net” and
Quora allow users to seek answers to legal
questions
• This is a particularly risky area. Any issues?
jezor@tourolaw.edu

33. Conflicts Of Interest
• With whom are you communicating?
– What if it is with a party with an adverse interest to a
client of the firm? (Model Rules 1.7, 4.2)
• Other issues?
jezor@tourolaw.edu

34. Inadvertent Creation Of An
Attorney-Client
Relationship
• The discussion could lead to a situation where a
“prospective” client relationship is formed, which
has several consequences
• Must keep that information confidential (Model
Rule 1.18)
• Obtaining this confidential information could lead
to disqualification with respect to existing clients
who would have an interest in knowing that
information
jezor@tourolaw.edu

35. Inadvertent Creation Of An
Attorney-Client
Relationship
• An organization needs a well-considered policy to address
these issues, including:
– Use a disclaimer (“general informational purposes”), but how
do you do that with Tweets?
– Do not post confidential information
– Restrict recipients, followers, etc.
• Very little risk with passive review, but the more
interactive, the more dangerous
– Contact with represented party
– Do not discuss subject matter of your cases!
jezor@tourolaw.edu

36. Inadvertent Creation Of An
Attorney-Client
Relationship
• Depending on the circumstances, this could run afoul of
rules prohibiting the unlicensed practice of law – or it could
inadvertently create an attorney-client relationship
• An organization needs a good policy to address these
issues – things to consider
– Keep it general
– Restrict recipients
– Use a disclaimer (“general informational purposes”)
– Do not post confidential information
jezor@tourolaw.edu

37. Lawyers (and Law
Students) Tweeting Badly

53. Remember:
How and Why Not
• Twitter is public; remember that all, not just
followers, may see/search your tweets
• Library of Congress, Topsy.com archiving all tweets
(even deleted ones)
• Jurors, clients, judges and colleagues can/will follow
you
• Many horror stories of accidental
disclosures, embarrassments; can impact on career
and reputation
• Be a good example
jezor@tourolaw.edu

54. Key Question is Why?
• Media sees Twitter as celebrity hangout, text message
alternative (“Having eggs for breakfast”)
• True but only one side of story
• “Other” Twitter is tremendous business/knowledge
resource
• Blogs are great model: links, opinions and
discussions
• Ideal is to provide as well as receive value
jezor@tourolaw.edu

55. Conclusion
• Beware of advertising issues
• Be careful with judicial relationships
• Avoid deception and act transparently
• Keep confidences confidential
• Establish and follow a policy for interactive
contact
jezor@tourolaw.edu

56. Knowledge, Policies and
Procedures Must Work Together
To Minimize Risks
• Adequate funding of IT staff, including training
• Make sure attorneys and support staff given
proper education
• Set up systems with legal practice concerns in
mind
• Keep up with legal trade press, ethics opinions
jezor@tourolaw.edu

57. QUESTIONS?