Ethical Pitfalls of Social Media K I M W O L F P R I C E , E S Q - PDF document

7/11/2016 Ethical Pitfalls of Social Media K I M W O L F P R I C E , E S Q . A S S I S T A N T D E A N , C A R E E R S E R V I C E S S Y R A C U S E U N I V E R S I T Y C O L L E G E O F L A W J U L Y 2 0 1 6 1 NYPWA CONFERENCE JULY 2016 What is Social Media? According to Google so∙cial me∙di∙a noun websites and applications that enable users to create and share content or to participate in social networking. NYPWA CONFERENCE JULY 2016 2 1

7/11/2016 Examples 3 NYPWA CONFERENCE JULY 2016 And these are popular Some of these sites are HUGE Estimates: Facebook– 1.59 billion users (Dec. 2015) Instagram ‐ 400 million (Sept. 2015) Twitter – 320 million (March 2016) LinkedIn – 400 million members ◦ however, “only” 100 million or ¼ sign‐in monthly (Oct. 2015) NYPWA CONFERENCE JULY 2016 4 2

7/11/2016 Lawyer & Social Media Estimates are that 70% Of all lawyers engage in some social media usage 5 NYPWA CONFERENCE JULY 2016 Beware of the NYPWA CONFERENCE JULY 2016 6 3

7/11/2016 Some Pitfalls MISCONCEPTIONS Privacy settings mean things are private There is a bright line between public and private If I ignore it, it will go away 7 NYPWA CONFERENCE JULY 2016 This does not exist “Cone of Silence” NYPWA CONFERENCE JULY 2016 8 4

7/11/2016 And then, the MISTAKES Forgetting that social media is subject to the rules … including the ETHICAL RULES 9 NYPWA CONFERENCE JULY 2016 Misuse as an investigative tool ◦“False Friending” ◦Not informing those you work with/who work for you of the ethical rules NYPWA CONFERENCE JULY 2016 10 5

7/11/2016 Are judges your friends? Forgetting the rules relating to communications & relationships with judges ◦Ex Parte communications ◦Friends with Judges 11 NYPWA CONFERENCE JULY 2016 Revealing too much … ◦Strategy ◦Client information ◦Privilege NYPWA CONFERENCE JULY 2016 12 6

7/11/2016 Whose lawyer am I? ◦ Inadvertent attorney/client relationships ◦ Unauthorized practice of law 13 NYPWA CONFERENCE JULY 2016 Improper use of personal accounts ◦ Alluding to cases ◦ Giving up locations ◦ Posting photos of “victory” celebrations ◦ Getting caught in a lie ◦ Being too lax ◦ Not keeping up with personal accounts, not enacting privacy settings NYPWA CONFERENCE JULY 2016 14 7

7/11/2016 Know the rules Attorneys social media competence … An attorney cannot be competent absent a working knowledge of the benefits and risks associate with social media. ◦ NYSBA Social Media Ethics Guidelines updated June 2015 15 NYPWA CONFERENCE JULY 2016 Ignorance of the law is no excuse NYPWA CONFERENCE JULY 2016 16 8

7/11/2016 All of the rules ◦Ethical rules ◦Platforms’ rules ◦Employer’s rules 17 NYPWA CONFERENCE JULY 2016 LinkedIn™ Issues involved? ◦ Attorney Advertising ◦ Contact of parties, jurors ◦ “Specialization” NYPWA CONFERENCE JULY 2016 18 9

7/11/2016 LinkedIn™ Profiles were causing issues/angst ◦NY County Lawyers Association Opinion, June 2015 ◦NY City Bar, December 2015 19 NYPWA CONFERENCE JULY 2016 Remember … This isn’t going to work NYPWA CONFERENCE JULY 2016 20 10

7/11/2016 Learning from others … Sometimes examples are the best way to learn. So, without further ado, some examples of lawyers behaving badly. 21 NYPWA CONFERENCE JULY 2016 Who’s clueless? Illinois: ◦ Public defender has blog. ◦ Posts comments about judges including referring to one judge as: “Judge Clueless” NYPWA CONFERENCE JULY 2016 22 11

7/11/2016 Who’s clueless? It gets better: ◦ Same public defender posts this description of conversation with her client: “Huh? You want to go back and tell the judge you lied to him, you lied to the pre‐sentence investigator, you lied to me? And you expect what to happen if you do this? I’ll tell you what would happen; the sentence just pronounced would be immediately vacated and you’d go to prison, that’s what would happen.” 23 NYPWA CONFERENCE JULY 2016 Result? 60 day suspension NYPWA CONFERENCE JULY 2016 24 12

7/11/2016 But I didn’t use my name! Louisiana Federal prosecutors, using pseudonyms … ◦ Commented on articles about their own cases ◦ “GUILTY!” ◦ Slandered defendants ◦ Disparaged federal and state judge ◦ One prosecutor alone posted over 2,600 comments 25 NYPWA CONFERENCE JULY 2016 Result? ◦Resignation ◦Investigation by Louisiana Bar ◦Implosion of several high profile cases NYPWA CONFERENCE JULY 2016 26 13

7/11/2016 False Friending a/k/a Pretexting Ohio Prosecutor posed on Facebook as mother of murder defendant’s child to persuade two female alibi witnesses not to testify ◦Result? FIRED 27 NYPWA CONFERENCE JULY 2016 False Friending Ohio Insurance investigator impersonated another on Facebook to gain access to private Facebook page of minor plaintiff in dog bite case ◦ Civil suit against firm, insurance carrier and investigator NYPWA CONFERENCE JULY 2016 28 14

7/11/2016 False Friending New Jersey Attorney directed paralegal to friend a young male plaintiff in personal injury case, even though represented by counsel, to gain access to privacy‐restricted portions of his profile ◦ Investigation on‐going 29 NYPWA CONFERENCE JULY 2016 It’s my Ex Parte and I’ll cry if I want to Florida ◦Judge and trial attorney are friends on Facebook … that in itself can be fine, but ◦Attorney writes on his own timeline ◦“I hope I am in my last day of trial” ◦Judge responds ◦“You are in your last day of trial” NYPWA CONFERENCE JULY 2016 30 15

7/11/2016 Result? Judge publicly reprimanded for communicating publicly with attorney who was in trial before the judge 31 NYPWA CONFERENCE JULY 2016 You can’t count on non‐lawyers to know the ethical rules South Carolina ◦ Attorney listed 50 practice areas in which he had little to no experience on his website ◦ Also set up internet profiles on various online directories and professional marketing sites, including ◦ www.lawyers.com, ◦ www.lawguru.com, and ◦ www.linkedin.com. ◦ Attorney counted on marketing group to set these up ◦ … did not review for compliance with attorney advertising rules NYPWA CONFERENCE JULY 2016 32 16

7/11/2016 Result? Public reprimand for attorney for violating advertising rules by making false and misleading statements and for misleading statements about his qualifications 33 NYPWA CONFERENCE JULY 2016 If you don’t have anything nice to say … Florida (again) ◦Attorney calls judge ◦“Evil unfair witch” ◦“[S]eemingly mentally ill” ◦All in his public blog NYPWA CONFERENCE JULY 2016 34 17

7/11/2016 Result? ◦Public reprimand ◦$1,250 fine ◦Upheld by Florida Supreme Court 35 NYPWA CONFERENCE JULY 2016 Not Proper for Trial Florida (yet, again) ◦Public defender posts photos of client’s leopard‐print underwear on her Facebook page ◦Caption read: ◦“proper attire for trial” NYPWA CONFERENCE JULY 2016 36 18

7/11/2016 Result? ◦Defendant got a new public defender ◦Mistrial declared ◦Public defender fired 37 NYPWA CONFERENCE JULY 2016 Do’s ◦Know the rules ◦Protect confidences ◦Stay current ◦Be professional ◦Talk to those you work with, represent, etc. about the rules ◦Use social media, properly, as an investigative tool NYPWA CONFERENCE JULY 2016 38 19

7/11/2016 Don’t ◦Disclose confidential information ◦Exaggerate your qualifications ◦Comment on your own matters on social media (or any) ◦Criticize judges, parties, clients, counsel via social media ◦Engage in ex parte communications ◦Engage in pre‐texting or false friending ◦Embarrass yourself 39 NYPWA CONFERENCE JULY 2016 Questions? Kim Wolf Price, Esq. Assistant Dean, Career Services Syracuse University College of Law kwprice@law.syr.edu NYPWA CONFERENCE JULY 2016 40 20