Legal Ethics and Social Media Chris McLaughlin Associate Professor, UNC SOG mclaughlin@sog.unc.edu 919.843.9167 October 2016 Do you Tweet? 2 1
Do you Tweet? A. Yes, I have a Twitter account and use it for professional purposes. B. Yes, I have a Twitter account but I use it only for personal purposes. C. No. I m not a bird. Yes, I have a Twitter account... 0% 0% 0% Yes, I have a Twitter account... No. I m not a bird. 3 4 2
Do you Facebook? 5 Do you Facebook? A. Yes, I have a FB account and use it for professional purposes. B. Yes, I have a FB account but I use it only for personal purposes. C. No, I ve heard of that book but haven t read it yet. Yes, I have a FB account and... 0% 0% 0% Yes, I have a FB account but I... No, I ve heard of that book b.. 6 3
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Do you use LinkedIn? A. Yes B. No. 0% 0% Yes No. 9 10 5
Do you use the SOG Local Government Lawyers listserv? A. Yes. B. No. C. What s a listserv? 0% 0% 0% Yes. No. What s a listserv? 11 Captain Obvious Rule #1 Don t be a jerk. 12 6
You can think it but not Tweet it. Kansas Court of Appeals research attorney tweets during disciplinary hearing for state attorney general Phill Kline: Why is Phil Klein [sic] smiling? There is nothing to smile about, d*&*(#&$. 13 You can think it but not Tweet it. Attorney is fired and then apologizes: I didn t stop to think that in addition to communicating with a few of my friends on Twitter I was also communicating with the public at large, which was not appropriate for someone who works for the court system. I apologize that because the comments were made on Twitter and thus public that they were perceived as a reflection on the Kansas courts. 14 7
Email is forever. NJ attorney suspended 3 months for sarcastic and sophomoric comments made in numerous emails to judges and opposing counsel. 15 Email is forever. Don t feel you have to email me daily and let me know just how smart you are. Did you get beat up in school a lot? Because you whine like a little girl. This will acknowledge receipt of your numerous Emails, faxes and letters. In response thereto, Bla Bla Bla Bla Bla Bla. 16 8
Don t get personal. NC attorney reprimanded for failing to maintain objectivity and professionalism in email to opposing pro-se party in divorce: You re a terrible husband, father, lawyer, and human being. 17 Captain Obvious Rule #2 You re not as funny as you think you are. 18 9
19 Judge Mike Maggio (Ark Cir. Ct.) 20 10
Judge Mike Maggio (Ark Cir. Ct.) 21 22 11
23 Captain Obvious Rule #3 Think before you post. 24 12
25 Think before you post. 2015: TX judge violated ethics rules with FB posts about on-going trials 2010: IL assistant public defender suspended for implying in blog that client may have committed perjury 26 13
27 It is possible for a public lawyer to use social media responsibly. 28 14
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Is it a coincidence that both of those attorneys are Duke grads? Duke = Smart + Funny 35 Now the less obvious rules... Using Social Media In Investigations 36 18
Social Media in the Hiring Process Your county HR director asks if it is okay for the HR department to Google job applicants and check their Facebook pages to help determine if they are suitable hires. 37 How do you respond? A. Good idea. That will help weed out the crazies. B. Absolutely not. That is way too Big Brother for me. 50% 50% Good ide a. Tha t will help Absolut ely not. That is wa 38 19
Social Media in the Hiring Process Using the Internet to Conduct Background Checks on Applicants for Employment SOG Public Employment Law Bulletin No. 38 Diane M. Juffras 39 Social Media and Employee Discipline Tom TarHeel, an employee in the maintenance department, has been accused of smoking marijuana during the workday. Ann, the co-worker who made the accusation, says that she is friends with Tom on Facebook and has seen pictures of Tom proving what she says is true. Do you investigate Tom s Facebook account? 40 20
Do you investigate Tom s Facebook account? A. Yes, but only the public posts. B. Yes, including the private posts using Ann s access. C. You first ask Tom if he will grant you permission to access his account. D. No. Yes, but only the public posts. 0% 0% 0% 0% Yes, including the private po... You first ask Tom if he will g... No. 41 Social Media In Litigation The county is being sued for a tort claim. A colleague suggests that you look at the plaintiff s Facebook page to look for incriminating posts or photos. Do you investigate the plaintiff s Facebook page? 42 21
Do you investigate the plaintiff s Facebook account? A. Yes, but only the public posts. B. Yes, and you send the plaintiff a friend request hoping to get access to private posts. C. No. Yes, but only the public posts. 0% 0% 0% Yes, and you send the plainti.. No. 43 Don t Be Too Friendly Rule 4.1 (truthfulness to others) Rule 4.2 (communicating with persons represented by counsel) Rule 8.4 (dishonesty, misrepresentation) Rule 5.1 & 5.3 (failure to supervise) 44 22
Don t Be Too Friendly NJ municipal attorneys violated rules when their paralegal sent friend request to tort plaintiff 45 Don t Be Too Friendly No NC opinion on this issue Rely on Rules 4.2 and 4.3 46 23
Don t Be Too Friendly National Ethics Opinion Consensus: Okay to view public posts by parties & witnesses No friend requests to represented persons No deception to gain access to private posts Some states require disclosure of connection with legal matter when sending friend request 47 Social Media and Litigation Your client has been sued for negligence for an accident at a county park. There are several photos of the park in question on the county s Facebook page that show the allegedly faulty equipment. That page also includes comments from the public about that equipment. 48 24
What do you do about the county s Facebook page? A. Nothing. B. Remove only the comments but keep a copy. C. Remove both the photos and the comments but keep copies. Nothing. 33% 33% 33% Remove only the comments... Remove both the photos an... 49 NC 2014 FEO 5 50 25
May you view the Facebook page of a prospective or sitting member of a jury prior to or during your client s trial? A. No. B. Yes, but only the public posts. 0% 0% No. Yes, but only the public post 51 Jurors and Facebook Yes, but be careful... ABA Formal Opinion 466: Okay even if social network informs juror that site was viewed by attorney NYSBA 2015 Social Media Ethics Guidelines Not permitted if juror will learn of viewing 52 26
Can I be Facebook friends/ or connected via LinkedIn with a judge in front of whom I regularly appear? A. Yes, so long as I avoid ex parte communications in a current proceeding. B. No. Yes, so long as I avoid ex pa.. 0% 0% No. 53 Judges and Facebook/LinkedIn NC 2014 Formal Ethics Opinion 8 54 27
On-Line Reviews Barbara BlueDevil is lawyer who maintains a LinkedIn page. She requests two former clients, Tom and Tina, to provide professional recommendations for Barbara s LinkedIn page. Tom says: Barbara was extremely skilled, professional and diligent. Tina says, Barbara got me a $1 million verdict! 55 Can Barbara post these recommendations? 25% 25% 25% 25% A. No. B. No, because she requested them. C. Yes. D. Yes for Tom s, no for Tina s. No. No, because she requested... Yes. Yes for Tom s, no for Tina s. 56 28
NC 2012 Formal Ethics Opinion 8 Okay to request on-line recommendations Full disclosure Must conform to rules governing testimonials and advertising 2012 FEO 1 57 Don t Freak Out Over Bad On-Line Reviews! I dislike it very much when my clients lose, but I cannot invent positive facts for clients when they are not there. I feel badly for him, but his own actions in beating up a female co-worker are what caused the consequences he is now so upset about. In re: Betty Tsamis, Illinois Attorney Disciplinary Comm. (2014) 58 29
Don t Freak Out Over Bad On-Line Reviews! Tsamis s attorney: The public feels entitled to slander a lawyer and they don t realize they ve blown their privilege when they do. In this case I think Ms. Tsamis had the right to vigorously defend herself. 59 30