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

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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

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Ethical Pitfalls

  • f 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

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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.

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Examples

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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)

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Lawyer & Social Media

Estimates are that

70%

Of all lawyers engage in some social media usage

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Beware of the

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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

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This does not exist

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“Cone of Silence”

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And then, the

MISTAKES

Forgetting that social media is subject to the rules … including the ETHICAL RULES

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Misuse as an investigative tool

  • “False Friending”
  • Not informing those you work with/who work for you of

the ethical rules

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Are judges your friends?

Forgetting the rules relating to communications & relationships with judges

  • Ex Parte communications
  • Friends with Judges

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Revealing too much …

  • Strategy
  • Client information
  • Privilege

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Whose lawyer am I?

  • Inadvertent attorney/client relationships
  • Unauthorized practice of law

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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

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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

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Ignorance of the law is no excuse

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All of the rules

  • Ethical rules
  • Platforms’ rules
  • Employer’s rules

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LinkedIn™

Issues involved?

  • Attorney Advertising
  • Contact of parties, jurors
  • “Specialization”

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LinkedIn™

Profiles were causing issues/angst

  • NY County Lawyers Association Opinion, June 2015
  • NY City Bar, December 2015

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Remember …

This isn’t going to work

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Learning from others …

Sometimes examples are the best way to learn. So, without further ado, some examples of lawyers behaving badly.

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Who’s clueless?

Illinois:

  • Public defender has blog.
  • Posts comments about judges including referring to one judge as:

“Judge Clueless”

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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.”

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Result?

60day suspension

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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

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Result?

  • Resignation
  • Investigation by Louisiana Bar
  • Implosion of several high profile cases

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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

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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

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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

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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”

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Result?

Judge publicly reprimanded for communicating publicly with attorney who was in trial before the judge

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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

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Result?

Public reprimand for attorney for violating advertising rules by making false and misleading statements and for misleading statements about his qualifications

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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

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Result?

  • Public reprimand
  • $1,250 fine
  • Upheld by Florida Supreme Court

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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”

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Result?

  • Defendant got a new public defender
  • Mistrial declared
  • Public defender fired

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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

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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

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Questions?

Kim Wolf Price, Esq.

Assistant Dean, Career Services Syracuse University College of Law

kwprice@law.syr.edu

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