SIX DEGREES OF REGULATOR SEPARATION:

LEGAL ETHICS AND SOCIAL MEDIA

MODERATOR – WESLEY GEISELMAN, Of Counsel, Post Polak, P.A.,

Panelists: RUSSELL THOMAS, Executive Director, Tennessee ABCC

SEAN O’LEARY, President, O’Leary Law & Policy Group, LLC, Elmhurst IL

ANNA HIRAI, Assistant Administrator, Honolulu Liquor Commission

ADENA SANTIAGO, Senior Counsel, Husch Blackwell LLP, Washington, DC

Introduction

The one and only Wes Geiselman is the only person that could make ethics the liveliest panel of a conference!

This panel focused on the ethical considerations attorneys face when utilizing social media.

Social media is developing and new websites are coming to the front every year. One-year twitter pops up, the next year a concept like reddit pops up and then we don’t know what is next.

As social media moves fast, the legal rules covering social media often times move slowly.

So how does an attorney navigate an ever-changing social media world when the system of rules may be behind the times?

Starting discussion

Wes took the panel through the concept of six degrees of separation. The idea that all people are six, or fewer, social connections away from each other. As a result, a chain of “a friend of a friend” statements can be made to connect any two people in a maximum of six steps.”

The implications are that the social media world is so interconnected that what an attorney puts on social media could become picked up by a massive amount of people. With this in mind, an attorney must be mindful of what they write.

Status of Ethical Rules and Social Media

Generally, the legal standards are behind the developing standards of social media. So, the question is what rules apply?

The ABA is in the process of proposing social media rules, 37 states have some form of rules.

New York has the most developed rules but most of the country does not live in New York. The rules that apply to your jurisdiction are ones you must abide by.

With this in mind, the panel discussed general rules that an attorney can use as a guide and started with two important pillars of social media.

Pillars of Social Media

The First Pillar Rule of Social media is “Competence”.

You must be competent and understand the advice you are providing.

The advice you provide in social media is dispersed to a wide audience and what you put on social media has serious consequences.

Competence standards state that a lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

We went through examples of where social media goes awry. You are bound on social media by the same rules you are bound by for other forms of writing.

The second pillar of social media is “Confidentiality”.

A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent. Social media activities and a lawyer’s website or blog must comply with these limitations.

Sean stated that one should make sure that they don’t put information on social media that could identify your client. For example, you may put information on a blog calling out government action that goes beyond what you deem fair. In explaining this concept, you may inadvertently provide details that specifically identifies your client.

If you want to mention any fact pattern involving your client, you should get consent from your client.

Remember social media is like shouting the information out on the street. And with the six degrees of separation rule, the information could be disseminated widely.

New York is the most aggressive on governing social media and promulgated guidelines on social media and legal ethics.

Ten Commandments of social media

The panel went over the 10 commandments of social media which can provide guidance for legal professionals.

10 Commandments of avoiding ethical lapses:

Social Media Profiles and Posts May Constitute Legal Advertising
Avoid Making False or Misleading Statements
Avoid Making Prohibited Solicitations
Do Not Assume You Can “Friend” Judges
Do Not Use Privileged or Confidential Information
Avoid Communications with Represented Parties
Be Cautious when Communicating with Unrepresented Third Parties
Beware of Inadvertently Creating Attorney-Client Relationships
Beware of Potential Unauthorized Practice Violations
Tread Cautiously with Testimonials, Endorsements, and Ratings

Rules for blogging

Sean mentioned rules for blogging. The first rule is the blog post or social media profiles should not constitute legal advertising. There is a fine line on what constitutes legal advertising. To avoid this line, the blog should not be 100% about the services you can provide, but about providing helpful legal information to the community.

Avoid false or misleading information. There are certain rules Sean relies on for his blog. Every blog needs to be checked for veracity. People may rely on the blog as a source for information, so do not provide statements if they can’t be proven true. If you interview someone for the blog make sure they agree to the interview’s content, providing editorial approval may be the best policy. Presenting a different opinion is okay, presenting misleading or false facts is not.

Hypotheticals

The panel tackled several hypotheticals that provided the audience with example of when the line of permissibility was crossed over.

Hypo 1

Adena talked about the 1^st Hypothetical, Joe puts on his LinkedIn page. “Experience and Skills” on his profile he wrote “Over 20 years handling matters involving alcoholic beverage laws in numerous states.” The LinkedIn website asked Joe if he wanted to send invitations to link to his new profile to his entire email contact list. Joe pressed yes, and sent out a message – “I just joined LinkedIn. I’d love to connect and catch up and – as always – let me know if I can help you with your legal problems.” Later, an endorsement appeared on his LinkedIn page from a former client: “Joe is one of the best ABC lawyers I know and he can get you anything you want. You should use him as your lawyer.”

What are the problems? First, an attorney has a duty to represent their client with competency and have knowledge and skill as they proceed in representation. Before you decide to have a social media account, you need to decide what you will put on your social media post, and how it can be construed by the public and potential clients.

MRPC 7.4: “A lawyer shall not state or imply that a lawyer is certified as a specialist in a particular field of law, unless (1) the lawyer has been certified as a specialist …”

A liquor lawyer is not a specialist, so saying you are a specialist without the official recognition would violate Rule 7.4. You can mention experience, skills, and what you have been involved in. But a lawyer cannot call themselves a specialist when they have not been certified as a specialist.

Hypo 2

Sean covered the next hypothetical on how social media could inadvertently create an attorney-client relationship.

If an attorney writes a blog or post on social media, someone out there may be trying to obtain legal advice and you may inadvertently provide the legal advice. This could create an attorney/client relationship even though that was not your intention.

Attorneys must use social media carefully and when responding to a blog follower or random person, do not get into the specifics of their factual situation.

Hypo 3

Anna and Russell discussed a specific situation where an ABC commissioner sends a friend request to an attorney that has a hearing before the board.

As ABC members get younger, they are on social media more than older Commissioners. So, Anna discussed how do you provide guidelines which allows them to use social media and not violate rules. Again, another area where the rules may be behind the technological developments.

The ABA provided a formal opinion on this matter which is positive but unfortunately this rule is also vague. Under ABA Formal Opinion 462 – Judge’s Use of Electronic Social Networking Media (February 21, 2013): A judge may participate in electronic social networking, but as with all social relationships and contacts, a judge must comply with relevant provisions of the Code of Judicial Conduct and avoid any conduct that would undermine the judge’s independence, integrity, or create an appearance of impropriety.

In New York, the New York Advisory Committee on Judicial Ethics Opinion 13-39: states “… the mere status of being a ‘Facebook Friend,’ without more, is an insufficient basis to require recusal.”

As a general rule, any judge should follow some basic principles of maintaining independence and integrity and avoiding impropriety.

Anna indicated that the best solution is to check with your jurisdiction, as these rules are state specific and vary by state. What applies in New York or California does not matter in your jurisdiction, so check the State Bar Association rules.

Nevertheless, Anna’s approach was to show the two ends of the guidance perspective, the ABA where it is vague v. New York where it is specific.

Generally, from a lawyer’s point of view, ex parte communication rules would apply, we are going to assume it applies to accepting a friend request. If there is not a proceeding involving the lawyer and judge, Anna thinks you may be able to look at it differently.

In Honolulu, ex parte communication not prohibited as long as it doesn’t affect the proceedings.

Russell Thomas, when he was appointed Executive Director of the Tennessee Alcoholic Beverage Commission, contacted state board of responsibility on how to deal with represented parties. He sought clarification on rules of professional contact for attorneys, even though he does not always act in the capacity as an attorney in his role as executive director, he nevertheless sought clarification on the legal ethics rules.

Hypo 4

The next hypothetical dealt with if you can utilize someone’s social media account to obtain information and utilize it in a case to help your client?

There are a series of questions you should answer first when dealing with whether you can access someone else’s social media account.

Is the party represented by counsel, what is the subject matter of the communication? Communication With Person Represented by Counsel: In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.

The consent must come from the other lawyer even if the represented person provides consent. You can discuss issues not related to representation.

For example, in New York you can’t contact a represented party or request access to that party.

But what about using social media when a lawyer wants to do digging into someone’s background?

Specifically, what occurs when an attorney utilizes his paralegal to send a friend request to a witness and saw information on the media page that damages an adversarial witness?

Can he use the information he found on Facebook for his case?

MRPC 4.3: “In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.”

The Washington DC indicates that there is a difference between seeing the information openly which is not a violation, versus requesting access to the social media account. Before you do this, you must disclose the relationship.

Conclusion

Use of social media is expanding rapidly and that practicing attorneys are sometimes inadvertently caught in ethical traps while using social media.

To mitigate these minefields an attorney should know their state and local rules and apply general governing principles.

With six degrees of separation becoming smaller every day, the information put out on social media moves faster to a greater amount of people. Remember the rule that putting something on social media is like shouting it out on the street corner. The only difference is that your shouting to many more people than on the street!

So be careful and follow the road map for use and you won’t go wrong!

NCSLA 2019 New Orleans, Part I: Ethics Panel