Legal Ease Blog

Confidentiality Reminder for Legal Bloggers from the ABA

Last month the ABA Standing Committee on  Professional Responsibility released Formal Opinion 480, Confidentiality Obligations for Lawyer Blogging and Other Public Commentary, reminding lawyers that their duties of confidentiality extend to blogging and other online activities.

The opinion cautions lawyers about commenting publicly about cases or information relating to the representation of a client, including the fact of representation, even if some of that information is already publicly available.

The confidentiality rules are covered in Model Rule 1.6 (for current clients) and 1.9 (for former clients). There are exceptions to these rules which would allow a lawyer to publicly comment on the representation of a client, including the “generally known” exception under Rule 1.9.

Many lawyers may have thought that they were free to comment on cases if they were a matter of public record, such as where a decision or verdict could be easily accessed by a jury verdict search or by obtaining the court file.  But the opinion reminds lawyers that the confidentiality rule is much broader than attorney-client privilege and that it applies to more than just communication between the lawyer and the client. The confidentiality rules cover all information relating to the representation, regardless of the information’s origin.

Citing ABA Formal Opinion 479, The “Generally Known” Exception to Former-Client Confidentiality, issued in December 2017, Opinion 480 cautions lawyers that even if information can be found in a public record, such as a court decision, it is still subject to the duty of confidentiality.

Opinion 479 clarifies the “generally known” exception to the duty of confidentiality under Rule 1.9, stating that the exception applies to the use, and not the revelation of client information, and then it applies,

...only if the information has become (a) widely recognized by members of the public in the relevant geographic area; or (b) widely recognized in the former client’s industry, profession, or trade.

Information is not “generally known” simply because it has been discussed in open court, or is available in court records, in libraries, or in other public repositories of information.

The New York Bar Association Committee on Professional Ethics issued a similar opinion in June 2017, Opinion 1125 ,(cited in Opinion 479) which states that, “Although information that is generally known in the local community is not protected as confidential information, information is not ‘generally known’ simply because it is in the public domain or available in a public file.”

Another New York opinion cited by ABA 479, Opinion, 991 (2013) notes that, “information is generally known only if it is known to a sizeable percentage of people in ‘the local community or in the trade, field or profession to which the information relates.’”

According to Opinion 479, “Unless information has become widely recognized by the public (for example by having achieved public notoriety), or within the former client’s industry, profession, or trade, the fact that the information may have been discussed in open court, or may be available in court records, in public libraries, or in other public repositories does not, standing alone, mean that the information is generally known for Model Rule 1.9(c)(1) purposes.”

In short, these opinions distinguish between publicly available information and information that would qualify as “generally known.”  There must be some showing beyond the fact that the information is a matter of public record to qualify for the exception.

How do these opinions affect lawyer blogs?

Both Rule 1.6 and Rule 1.9 permit the revelation of client information with the consent of the client. (There are other exceptions as well, but they do not apply in the context of blogging and social media). The best way for lawyers to protect themselves and ensure compliance with ethics rules is to obtain written consent from the client before posting or commenting about their matter online (or writing an article in a print publication, discussing the case at a CLE program, etc.).

Lawyers are always free to comment generally on legal issues and could certainly blog about issues they have encountered in various cases. They can also use hypotheticals, point to cases from the news, or comment on reported decisions to illustrate legal concepts.

When using hypotheticals based on their own cases, lawyers should heed the warnings contained in these various ethics opinions and ensure that there is no reasonable likelihood that a third party could ascertain the client’s identity from the way the hypothetical is described.

Finally, even lists of clients contained on a lawyer’s blog or website would be covered by the confidentiality rules, so lawyers whose sites contain these kinds of lists should ensure that they have documentation of the clients’ consent to do so.

Photo by Kristina Flour on Unsplash

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3 New Ethics Opinions Guide New York Lawyers on Marketing Issues

The New York State Bar Association Committee on Professional Ethics issued three opinions within the past several months that provide guidance for New York lawyers on marketing issues. Opinion 1129, issued in July 2017, addresses attorney newsletters. Opinion 1131, covering payment for marketing or lead generation fees, and Opinion 1132, discussing the use of Avvo Legal Services, were both issued on August 8, 2017.

Future posts will discuss these opinions in more detail, but here are the basics, with links to the full opinions for your review. 

Attorney Newsletters and the Advertising Rules

Opinion 1129 addresses whether attorney newsletters must comply with the attorney advertising and solicitation rules contained in Rule 7.1 and 7.3, where the newsletter would be distributed to customers of one of the firm’s former clients and would include information provided by the former client. It also discussed whether it would be permissible for the firm to send a newsletter that would be partially paid for by the former client.

The opinion clarifies that a newsletter which provides information about the lawyer or law firm, including information about the firm’s achievements, cases, or personnel, will be considered to have a primary business purpose, and will qualify as advertising. In this case, since the newsletter was being sent to a targeted group (customers of the third party), if the newsletter were considered advertising, it would also be considered a solicitation and must comply with both Rules 7.1 and 7.3.

The opinion found that it would be permissible for the firm to include information supplied by a third party in a newsletter, but it would be the responsibility of the firm to ensure that the newsletter did not contain statements or claims that were false, deceptive or misleading.

Finally, the committee found that it would be permissible for the law firm to accept payment to defray the costs of publishing the newsletter if the firm did not receive payment for referring clients to the third party, and the newsletter did not include an express or implied recommendation of the third party’s services. But the opinion cautioned that the law firm might consider whether taking payment from a third party to help with the cost of publishing the newsletter might preclude the firm from representing clients in transactions involving that third party due to a conflict of interest.

Payment of Marketing Fees for Lead Generation

Opinion 1131 addresses payment for potential client leads to a for-profit website on which potential clients provide contact information and agree to be contacted by a participating lawyer. The Committee found that such payments are permissible if the selection of the lawyer is not based on an analysis of the potential client’s legal issue or the lawyer’s qualifications or ability to handle that problem, the service does not purport to recommend the lawyer (either directly or by implication) and the website through which the leads are generated complies with the requirements of Rule 7.1 on lawyer advertising.

In short, “if the Service complies with the advertising rules and the lawyer’s payment is reasonable for that form of advertising, a lawyer’s using the Service will not run afoul of Rule 7.2 unless the Service is deemed to “recommend” the lawyer.”

It is worth noting that Opinion 1131 overrules – at least in part – Opinion 902 issued in 2012, in which the Committee held that a lawyer could not pay a marketing company a fixed fee each time the marketer made an introduction to a potential client. Opinion 1131 finds that payment of a marketing fee is permissible if “the lawyer is paying the Service a fixed sum to participate, unrelated to the lawyer’s retention or the amount the lawyer charges in legal fees.”

Use of Avvo Legal Services

In contrast to Opinion 1131, Opinion 1132 finds that the marketing fee lawyers must pay to participate in Avvo Legal Services constitutes an improper payment for a recommendation, which violates New York Rule of Professional Conduct 7.2(a). While New York has found that payment of fees for other lead generation services is not prohibited, the Committee relied on two factors in distinguishing Avvo Legal Services from those other services: the use of Avvo’s rating system and the way that rating system is marketing to consumers, and Avvo’s “satisfaction guarantee.” According to the opinion, the combination of these factors implies that Avvo recommends all lawyers who participate in Avvo Legal Services and that they are “highly qualified.”

 

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New ABA Ethics Opinion on Confidentiality, Security of Client Data in Electronic Communications

Last week (May 11, 2017), the ABA issued a new ethics opinion, Formal Opinion 477, dealing with the security of communication of protected client information. Several excellent posts have already been written about the opinion, including a summary by the ABA Journal, and an article by Bob Ambrogi on his Law Sites blog, among others. The opinion is getting a lot of attention, since it updates the ABA's Formal Opinion 99-413, issued in March 1999, on protecting the confidentiality of unencrypted email. That opinion concluded that, 

Opinion 477 is getting a lot of attention, since it updates the ABA's Formal Opinion 99-413, issued in March 1999, on protecting the confidentiality of unencrypted email. That opinion concluded that, 

A lawyer may transmit information relating to the representation of a client by unencrypted e-mail sent over the Internet without violating the Model Rules of Professional Conduct (1998) because the mode of transmission affords a reasonable expectation of privacy from a technological and legal standpoint. The same privacy accorded U.S. and commercial mail, land-line telephonic transmissions, and facsimiles applies to Internet e-mail. A lawyer should consult with the client and follow her instructions, however, as to the mode of transmitting highly sensitive information relating to the client's representation.

But much has changed since 1999; email and other forms of electronic communication have become much more prevalent, and hacking has become a daily occurrence. In addition, since 1999, the ABA has adopted the 2012 "technology amendments" to the Rules of Professional Conduct, including Comments to Rule 1.1 regarding technology competence and 1.6 regarding the lawyer's obligation use reasonable measures to prevent inadvertent or unauthorized disclosure of confidential information.

As noted in Opinion 477,

Comment [18] to Model Rule 1.6(c) includes nonexclusive factors to guide lawyers in making a “reasonable efforts” determination. Those factors include:

• the sensitivity of the information,
• the likelihood of disclosure if additional safeguards are not employed,
• the cost of employing additional safeguards,
• the difficulty of implementing the safeguards, and
• the extent to which the safeguards adversely affect the lawyer’s ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use).

Opinion 477 still reinforces the "reasonableness under the circumstances" standard to determine what measures a lawyer must take to protect confidential client information, but provides some guidance in the form of seven factors lawyers should consider when determining what level of security is appropriate and what measures are reasonable under the circumstances. I recommend that all lawyers read the complete opinion, but I've listed the seven factors here, along with a list of questions under each factor that lawyers might use to help them decide what security measures should be employed.

1. Understand the Nature of the Threat

• How sensitive is the client's information? Does the matter involve trade secrets or other proprietary information that might be valuable to hackers or competitors?
• Is the client in a highly sensitive industry, such as banking or healthcare?
• Is this a high profile case or client which might increase the risk of a cyber-attack or attempt to intercept the client's data?

The more sensitive the client's data, the more stringent your security measures may need to be to be considered "reasonable."

2. Understand How Client Confidential Information is Transmitted and Where it is Stored

• Is client data stored onsite or off (or both)?
• Where are the data servers located? 
• What security is in place for servers storing client data?
• How are your electronic communications generated?
• How is client data accessed?
• Who can access client data?
• What devices are used to access client data? How many devices, and how many different types of devices, access client data?
• Are firm employees accessing client data from home? On the road? 
• Where is client data being accessed from? How many different potential locations? 

Once you know the answers to these questions you can begin to evaluate what security measures should be considered.

3. Understand and Use Reasonable Electronic Security Measures

As Opinion 477 states, 

Making reasonable efforts to protect against unauthorized disclosure in client communications thus includes analysis of security measures applied to both disclosure and access to a law firm’s technology system and transmissions.

Lawyers have many different options when it comes to data security, but not all options make sense in all circumstances. Some are more costly or complicated to implement, and may not be necessary in all circumstances. But lawyers must understand what is available in order to evaluate what is reasonable. Options include strong passwords, two-factor authentication, device security, and encryption, as well as the security of the networks over which client electronic data is being accessed or communicated.

• How secure is our network within the office?
• Are firewalls and anti-virus software up to date on all devices within the office?
• How are other networks that are used to transmit client data secured (ie are home wifi networks used by lawyers secured?)
• Are firewalls and anti-virus software up to date and being used on any networks or devices outside of our office that access our network and client data?
• How are the devices that access our network and client data secured? Are they password protected? Are all devices that access our network and client data locked? Can they be remotely disabled and wiped if lost or stolen?

4. Determine How Electronic Communication About Clients Matters Should be Protected

Now that you know how sensitive your client data is, how that data is accessed and communicated, where the potential points of intrusion are, and what security measures are available, you need to determine which available security methods (or combination of methods) is reasonable given the sensitivity of your clients' data.

In addition to asking questions globally for the firm as a whole, you must also consider each client and matter individually and discuss security and protection of data and confidentiality with the client.

• What kinds of communication will be sent in this matter? Will they be routine or highly sensitive?
• Who will we be communicating with in this matter and how will that communication take place?
• How confident are we in (or how much control do we have over) the security measures put in place by those with whom we will be communicating?
• What technology is available to the client (or third party) with whom we will be communicating?
• How tech-savvy is the client (or third party) with whom we will be communicating?
• Who has control over and access to the devices which the client will use to communicate with us electronically, and how will this affect attorney-client privilege?
• What methods of communication are appropriate for this client or matter? Is there especially sensitive information that should not be transmitted by email?
• Is there especially sensitive information that should not be transmitted by email?
• What other, secure methods are available to communicate with clients and third parties in this matter?

The opinion even suggests that "well vetted and secure third-party cloud-based file storage systems" might be a secure alternative to communicating and exchanging documents with clients than email.

 5. Label Client Confidential Information

The opinion suggests that labeling client confidential information to alert others that the information was intended to be privileged. While this may be a good routine practice in some circumstances, and may trigger a lawyer's obligation under Model Rule 4.4(b) to notify another lawyer if they "know or reasonably should know" that the information was intended to be privileged, it is likely not a reliable method of protection.

• Are privileged documents prominently labeled "privileged and confidential?"
• Are appropriate disclaimers used based on the circumstances and the content of the communication?

6. Train Lawyers and Nonlawyer Assistants in Technology and Information Security

Managing partners and supervising lawyers are required to take measures to ensure that the firm and its lawyers comply with the Rules of Professional Conduct, and those who supervise nonlawyers, including outside vendors who have contact with or access to client data, must ensure that those nonlawyers are acting in a manner compatible with the ethical rules. This includes rules regarding security of electronic communications and data.

• Do we have a security policy in place that covers electronic data and communication? Has that policy been provided to all employees?
• Has that policy been provided to all employees?
• How often is this policy updated?
• Have we trained our lawyers and staff on appropriate security measures for storage, access, and communication of client data?
• How recently was this training conducted?
• How often do we provide an update or refresher on this training?
• Are all employees required to participate in this training?
• Are the security measures being implemented?
• How often do we assess the security measures in our firm?
• Who is responsible for ensuring that security policies are implemented and followed?
• How recently was this training conducted? How often do we provide an update or refresher? Are all employees required to participate in this training?
• Do lawyers and staff understand how to secure devices that access our network or client data?

7. Conduct Due Diligence on Vendors Providing Communication Technology

• What are the qualifications of the vendors we use, including education, experience, and reputation?
• What services is the vendor providing (are they likely to come into contact with sensitive or privileged information)?
• What hiring practices are employed by our vendors (background and security checks, etc.)?What security measures do our vendors have in place?
• Do we have confidentiality agreements in place with our vendors? Do the vendors have confidentiality agreements in place with employees and others?
• Do vendors use to check for conflicts? If so, what methods do they use?
• What legal forums and remedies are available if the vendor agreement is violated?
• Are the members of our firm qualified to assess these issues, or do we need to hire an outside expert?
• Do the vendors have confidentiality agreements in place with employees and others?
• What security measures do our vendors have in place?

Getting Client Input

Lawyers are also obligated to communicate with clients about security and confidentiality issues and may need to advise clients about potential risks, particularly those involving highly sensitive or confidential information. A client also has input on the security and communication methods to be used in their matter; a client may provide informed consent for the use of a less secure (but possibly less expensive and/or less onerous and complicated) method of communication or may require the lawyer to use more secure methods.

(For more on client confidentiality, specifically with regard to email communication with clients, see my post on attorney-client confidentiality and email here.)

UPDATE: This article was chosen as the SmallLaw Pick of the Week!

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Choosing Ghostwriters, Blogging and Social Media Service Providers

In my last post,I talked about delegating or outsourcing some blogging and social media tasks to others to reduce the burden of managing these activities, while still gaining many of the benefits.

But using outside services to write or post for you does raise some potential issues, including loss of engagement, style that is inconsistent with the individual lawyer or firm, and potential ethical issues. (For more on blogs and ghostwriting, see my posts Should You Use a Ghostwriter for Your Blog and Ghostwriting and Legal Blogs or my post on the Lawyerist blog, Outsourcing Blogs and Social Media). 

My last post talked a bit about choosing a writer or service (or an employee or associate in your firm) that understands and can convey the correct style, but there's more to consider than that.

The safest (and most effective) course of action, rather than outsourcing the entire endeavor, is to delegate or outsource only part of the process, while maintaining control over your content, voice and interactions. Lawyers often use paralegals or younger associates to draft pleadings, motions or other court papers in the lawyer’s name, and a similar practice for blogging and social media posting is not inherently unethical if the lawyer is also providing input into the work, supervising, reviewing content for accuracy, ensuring that no ethics issues exist, and signing off on it before it is posted online.

Tips for choosing a ghostwriter, outside service or employee for blog or social media activities:

• Use a service that understands the difference between promotion and providing value to your audience
• Use someone who has worked with lawyers and understands that ethical rules may prohibit some activities, words, phrases or posts.
• Thoroughly investigate the company or individual, their philosophy, writing style, and approach to blogging and social media. Ask for examples that demonstrate how they use these tools themselves or on behalf of other clients.
• Require that all content be original, and provided only to you, rather than generic content provided to many other attorneys who practice in your area of law (even if those other attorneys are outside of your geographic area)
• Insist on a work for hire agreement stating that the work created for you and your blog or social media accounts belongs to you and not to the writer or their company
• Develop a written agreement that states that nothing may be posted on your behalf without your prior approval, whether the posts are made on your accounts or are comments on others’ accounts or sites
• Review all content – you are ultimately responsible for the accuracy of all content posted on your behalf and for ensuring that it complies with the ethical rules. You’ll also want to be familiar with what is being posted so that you can speak intelligently about it if you receive inquiries or comments about it, and to confirm that it presents you and your firm in the best light possible
• Check that the legal information is correct and that you agree with and support any opinions expressed, and that those opinions will not offend or otherwise upset or create conflicts with your clients and referral sources
• Establish a good mix of posts that provide value and link to other sources in addition to providing your own content and links to your own content, and make sure that promotional posts are kept to a minimum

Finally, remember that social media is meant to be social. To be the most effective, you should be the one engaging with your readers and followers. Respond to comments and communicate one on one. Take online relationships offline into the real world; set up meetings and phone calls. Make introductions and connections between people in your network. Share others’ content; it not only reduces the amount of original content you need to post, but it builds your networks and your relationships with those whose content you share.

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Delegation Tips for Lawyer Blogs and Social Media Accounts

Marketing experts recommend that to gain visibility and get traffic to your firm’s website, you should maintain a blog and participate in social media. But for attorneys in firms of all sizes, especially small firms and solo practices, it can be a challenge to find the time to properly manage these activities and develop professional quality content that provides value to readers and followers while at the same time managing your clients, your cases, and your practice.

Personally engaging in these activities is the gold standard; writing your own posts creates a greater connection with your audience because the audience feels as if you are speaking directly to them. But it requires a regular commitment of time. However, there are ways that you can delegate or outsource some of the work of creating an active and engaged blog and social media presence to reduce some of the burden on you, while still gaining the benefits of participation.

Ways to Delegate Blogging and Social Media Tasks

For example, you could hire a writer to do some repurposing for you – taking some of your existing materials or writing and developing blog posts and social media posts or campaigns around them. If you have written a legal brief, a writer may be able to turn the writing you’ve done for a legal audience (the court) into writing on the same topic for a different audience – potential clients or referral sources – by explaining the legal concepts to a lay audience and breaking down your brief into a series of blog posts.

Or you could also ask someone to interview you about a timely topic or a story in the news. That interview could become a podcast or audio posted to your website, and the transcript of the interview could be transcribed into text as a blog post. You could also have a writer expand a bit on some of what you discuss in the interview.

You can also ask others to write guest posts for your blog. They can be other lawyers, clients, experts, or other service providers. Guest posts are a win- win: they provide the guest poster with increased visibility and access to your audience, and give your audience a different perspective or new information that you might not be able to provide on your own, while reducing the frequency with which you have to create your own content. (You may want to include a disclaimer on these posts and make it clear they are written by third parties and represent their views, and not necessarily yours.)

Other Blogging and Social Media Tasks to Delegate or Outsource

Other tasks you can delegate or outsource include:

• Conducting basic research
• Identifying of story ideas or news items as the basis for posts
• Maintaining an editorial calendar
• Developing a first draft of a post based on some bullet points or a topic idea you provide
• Suggesting other blogs to follow or link to
• Setting up a blogs or social media accounts
• Proofreading and editing
• Reviewing analytics and post performance
• Posting links to articles, blog posts or to your website on social media

For those that don’t have the time or don’t want to actually write themselves, but still want to maintain a blog or social media accounts, using a ghostwriter or subscribing to a blogging service may solve the problem. But you’ll want to be sure that their writing fits with your firm’s style, voice, and the image you’re trying to project.

Checking on Style

If you decide to hire others to write for your blog or post to your social media accounts, do a trial run and check their writing style:

• Does the writer’s style match yours?
• Does it convey the impression you want to convey?
• Does their language reflect the language you use with clients?
• Does their writing reflect your philosophy and values as a lawyer?
• Does it reflect your personality? Is it more or less formal, conversational, lighthearted, humorous, etc. than you usually are?
• Are posts written specifically to connect with your target audience?

Using outside services to write or post for you may raise some additional issues you should be aware of, including potential ethical issues. For example, having someone else writing blog posts in the lawyer’s name could be potentially misleading. And posting about clients or cases could run afoul of confidentiality rules. In my next post, I'll give you some tips and things to think about when choosing a ghostwriter, outside service or employee to run your blog or social media activities. (Hint: you'll still need to be involved).

For more on blogs and ghostwriting, see my posts Should You Use a Ghostwriter for Your Blog and Ghostwriting and Legal Blogs or my post on the Lawyerist blog, Outsourcing Blogs and Social Media. 

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Should The Bar Ban Sexist or Discriminatory Comments by Lawyers?

The ABA Annual meeting is currently underway in San Francisco, California. One of the items on this year's agenda for consideration by the House of Delegates is a resolution to amend to the ABA Model Rules of Professional Conduct, Rule 8.4, Misconduct. The resolution was the work of several entities within the ABA, including the Standing Committee on Ethics and Professional Responsibility, the Diversity and Inclusion 360 Commission and the Commission on Women in the Profession, among others.

The proposed amendment would add subsection (g) to the Rule, making it professional misconduct for a lawyer to:

engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.

The New York Times carried a story on the proposal yesterday, including comments from those on both sides of the issue, including those who argue that the Rule violates free speech.

Another article this week, at American Thinker, calls the new rule an attempt by the ABA to impose political correctness on all lawyers,  although one of the objections in the article - that the rule would prohibit lawyers from choosing whom to represent - seems unfounded given the proposed wording of the most recent revision of the proposed rule, which can be found here.

Another concern might be that lawyers will be forced to take on clients that they cannot afford to represent so as not to be seen to violate the prohibition against discrimination based on socioeconomic status. This concern also seems to be covered by the statement that the ability of a lawyer to accept, decline or withdraw from representation in accordance with Rule 1.16. In addition, proposed Comment [5], which states in part, "A lawyer may charge and collect reasonable fees and expenses for a representation."

In New York (as in several other states), Rule 8.4 already contains a subsection (g) as follows:

(g) unlawfully discriminate in the practice of law, including in hiring, promoting or otherwise determining conditions of employment on the basis of age, race, creed, color, national origin, sex, disability, marital status or sexual orientation. Where there is a tribunal with jurisdiction to hear a complaint, if timely brought, other than a Departmental Disciplinary Committee, a complaint based on unlawful discrimination shall be brought before such tribunal in the first instance. A certified copy of a determination by such a tribunal, which has become final and enforceable and as to which the right to judicial or appellate review has been exhausted, finding that the lawyer has engaged in an unlawful discriminatory practice shall constitute prima facie evidence of professional misconduct in a disciplinary proceeding; 

Read the proposed ABA model rule and new comments for yourself and let me know what you think in the comments. Should the bar prohibit lawyers from these kinds of comments and activities, or do they go too far and impose on lawyers' rights of free speech and association?

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New York Social Media Ethics Guidelines

Last Wednesday, the ABA Journal reported that the New York State Bar Association's House of Delegates would be considering social media ethics guides for lawyers on Saturday during the State Bar's meeting. The story was picked up by several people, including noted blogger and social media expert, Kevin O'Keefe, in his post, "New York Social Media Ethics Guidelines a roadmap or a rabbit hole?" in which O'Keefe questions the necessity for a specific set of guidelines specifically addressing social media and opines that the general rules should suffice to cover these new technologies.

The guidelines being considered appear to be the most recent version of guidelines put together by the New York State Bar Association's Commercial and Federal Litigation Section, but these guidelines are not new (here's a version from 2014). Nor are they particularly surprising. They were developed based on the New York Rules of Professional Conduct and various ethics opinions which have interpreted those rules. While most of the ethics opinions cited in the guidelines are from New York, there are opinions cited from other states where no New York ethics opinions could be found and another jurisdiction's rule was similar.

As O'Keefe says in his post, 

Rather than providing an onramp to social media for lawyers as intended, won’t these guidelines scare the heck out of lawyers? Lawyers don’t understand social media to start with and now we layer on ethics guidelines the relevance of which to particular situations could only be determined by a lawyer with practical knowledge of social media?

Blogging, social media, social networking and the like are learned through trial and error. A lawyers common sense, good judgment and a working understanding of existing ethics rules guide them.

Lawyers have been doing exactly this for the last twenty plus years, beginning with online bulletin board systems, message boards, newsgroups, listservs and virtual communities. Lawyers participated and did not drum up ethics sanctions along the way.

Now it’s blogs, LinkedIn, Facebook, Twitter, YouTube and more. And still lawyers are not going down in ethics’ flames.

But the fact is that attorneys have been inquiring about the rules that govern social media, as evidenced by opinions such as NYSBA Committee on Professional Ethics Opinion 1009, issued in May of 2014, discussing whether tweets in a specific circumstance require a disclaimer under the New York rules, or Formal Opinion 748 of the New York County Lawyers Association Professional Ethics Committee issued in March of 2015 addressing LinkedIn ethics with respect to skills, endorsements and recommendations.

"Should" lawyers be able to use common sense and apply the existing ethics rules to new technologies like social media the same way they have with previous technologies?  Probably. Have most attorneys been able to do so? So far, it seems that way. Will the guidelines scare some attorneys away? Perhaps, but the fact is that the attorneys who are able to use "common sense" to apply the rules to social media, should be able to do the same with regard to the guidelines and still use social media effectively. Indeed, since the guidelines suggest that attorneys should have at least a basic knowledge of social media (since their clients may use it, even if they don't), the guidelines may have the opposite affect - once attorneys learn about these tools, they may be less afraid to use them.

Are specific guidelines necessary? Probably not. Will they be helpful to many attorneys? That remains to be seen; I haven't seen any reports about the action taken by the House of Delegates last weekend, and a link on the Home page of the NYSBA website that purports to lead to a recent report on Social Media Ethics Guidelines appears to lead to an unavailable page. But New York isn't the first or only state to issue similar guidelines about social media use for attorneys - take, for example, Pennsylvania.

In New York, even if adopted, the guidelines would be just that - guidelines - just as the ethics opinions are advisory and only issued based on the specific circumstance in the inquiry presented. Whether an attorney can or will be disciplined as a result of social media use (or misuse) remains to be seen, but the disciplinary authority often relies upon guidelines and ethics opinions such as these, so like it or not, New York attorneys need to take heed.

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More Trouble from Facebook Posts - Judge Posts About Ongoing Cases

According to an article in the ABA Journal, a Texas judge who has been admonished by an ethics panel claims that she did nothing wrong by posting about trials she was overseeing. The judge claims the information she posted contained only publicly available information and that she continued to remain impartial.

The admonition requires the Galveston Judge of the 405th Judicial District to obtain four hours of instruction with a mentor regarding the proper and ethical use of social media by judges. The 5+ page opinion was issued April 20, 2015. According to the admonition, the judge maintained a Facebook page identifying her as a judge and featuring a photograph of her in her judicial robes. It was a publicly accessible page.

The admonition goes on to set forth a number of Facebook posts authored by the judge both before and during trials before her, despite her instructions to the jury that their use of Facebook to discuss the case was "absolutely forbidden." One of the posts even included a link to a news article about the trial pending before her. That article contained references to information that the judge had previously instructed the jury to disregard.

Another post referenced evidence that had not yet been admitted as an exhibit or evidence at the trial. That evidence, although ultimately admitted by the judge, was the subject of an objection by defense counsel. The judge was ultimately removed from that case and a mistrial was granted. The judge argued that her intent was to promote transparency and to encourage the public to come to watch the proceedings in her courtroom.

Despite negative media attention about the judge's conduct in the first case, she continued to post on Facebook about cases before her, including a post about completing the sentencing of a "very challenging" defendant.

The Texas State Commission on Judicial Conduct cited Canons 3B(10) and 4A of the Texas Code of Judicial Conduct, as well as Article V, Section 1-a(6)A of the Texas Constitution in its determination that by posting the comments on her Facebook page, the judge "cast reasonable doubt on her own impartiality" and violated her own admonition to the jury. They concluded that:

The comments went beyond providing an explanation of the procedures of the court and highlighted evidence that had yet to be introduced at trial. Judge Slaughter’s Facebook activities interfered with her judicial duties in that, as a direct result of her conduct, a motion to recuse was filed and granted requiring the judge to be removed from the Wieseckel case. The judge’s recusal then led to the granting of a motion for mistrial so that the case could be retried in its entirety before another judge. Judge Slaughter’s conduct in the case was clearly inconsistent with the proper performance of her duties and cast public discredit upon the judiciary or administration of justice in light of the considerable negative media attention given the case and her posting. The Commission therefore concludes that Judge Slaughter’s conduct constituted a willful and persistent violations of Canons 3B(10) and 4A of the Texas Code of Judicial Conduct, and Article V, Section 1-a(6) of the Texas Constitution.

Social media can be an exceptional tool for communication, and could be a good way for this judge to accomplish what she claims was her aim - educating the public about the court system. Unfortunately, the focus has now become these ill-advised Facebook posts which call into question her ability to be impartial.

 

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New York County Issues Ethics Opinion Clarifying Rules on Lawyers' Use of LinkedIn

New York County Issues Ethics Opinion Clarifying Rules on Lawyers' Use of LinkedIn

Last week, the New York County Lawyers Association Professional Ethics Committee released Formal Opinion 748, addressing the ethical implications of lawyers' use of LinkedIn. I had the opportunity to speak about this opinion and about other ethics issues involved with LinkedIn use at a CLE program for the New York State Trial Lawyers Association last Friday, and some interesting discussions ensued.

Here's a quick overview of the opinion:

Is LinkedIn Advertising in New York?

According to Opinion 748, LinkedIn is not advertising if it only contains information about an attorney's Education and current and past employment. However, if it contains additional information, such as a description of the attorney's practice areas, skills, endorsements or recommendations, the attorneys's LinkedIn Profile will be considered advertising.

[Comment: As my readers know from past posts on this blog and elsewhere, to get the most out of LinkedIn, attorneys should be making their LinkedIn Profiles as complete as possible and including information about what areas they practice in, what kinds of clients they represent, what skills they have, what services they provide to their clients, and more. If they do so, their LinkedIn Profile will be considered advertising in New York, according to this definition.]

Compliance with Rule 7.1- Advertising

Once you have established that your LinkedIn Profile qualifies as advertising, you'll need to review Rule 7.1 to ensure your Profile is in compliance. According to Opinion 748, this includes ensuring that your LinkedIn Profile contains appropriate disclaimers, such as the "Attorney Advertising" disclaimer.

The opinion also notes that 

If an attorney also includes (1) statements that are reasonably likely to create an expectation about results the lawyer can achieve; (2) statements that compare the lawyer’s services with the services of other lawyers; (3) testimonials or endorsements of clients; or (4) statements describing or characterizing the quality of the lawyer’s or law firm’s services, the attorney should also include the disclaimer “Prior results do not guarantee a similar outcome.” (emphasis added)

Specialization and Rule 7.4

As I mentioned in this post, in 2013, NYSBA Committee on Professional Ethics issued Opinion 972, which prohibits attorneys from using any section on LinkedIn with the title or heading "Specialties" unless they are properly certified. Opinion 748 addresses specialization in another area of LinkedIn: the Skills section.

Although Opinion 748 requires lawyers who include skills on their LinkedIn Profiles to include disclaimers, merely listing those skills on your LinkedIn Profile does not constitute a claim to be a specialist under Rule 7.4. In other words, you can list a skill on your LinkedIn Profile even if you have not been certified as a specialist in a particular area of law or law practice by a private organization approved for that purpose by the American Bar Association.

Endorsements and Reccomendations

According to Opinion 748,

The ethical treatment of endorsements and recommendations depends on who is considered to “own” the endorsement and recommendation: the author of the endorsement or recommendation or the person whose profile is enhanced by it.

On LinkedIn, users have control over what is posted on their own Profiles. They can choose to reject or hide an Endorsement, and Recommendations do not appear on a user's Profile unless approved by the owner of the Profile. Accordingly, Opinion 748 holds lawyers responsible for ensuring the accuracy of what appears on their Profiles, stating that, "there is a duty to review social networking sites and confirm their accuracy periodically, at reasonable intervals."

Nothing in Opinion 748 was particularly surprising, and not all jurisdictions in New York may follow the opinion, but it is instructive and is worth the read.

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Florida Bar Ban on Past Results in Attorney TV Ads Struck Down by Federal Court

In a case entitled Robert Rubenstein v. The Florida Bar, United States District Court Judge Beth Bloom of the Southern District of Florida ruled last week that it is unconstitutional for the Florida Bar to prevent a lawyer from using past results in advertising their services, saying that the Bar had the burden of establishing that the ban on the use of past results in attorney advertising supports the interests the Rules were designed to promote, and that they failed to meet that burden.

Robert Rubenstein's tv ads made claims that he had collected over $50 million for clients in the past year, and also noted that these were gross recovery amounts and that, "results in individual cases are based on the unique facts of each." The Florida Bar warned Rubenstein not to run the ads, and threatened disciplinary proceedings. Rubenstein responded by filing suit.

Notably, in 2013, the Florida Bar changed its rules to allow attorneys to include past results in their advertising if those results were objectively verifiable and accompanied by the appropriate disclaimers, so as to avoid misleading the public.

In 2014, the Bar’s Board of Governors issued new “Guidelines for Advertising Past Results.” The Guidelines note that "inclusion of past results in advertising carries a particularly high risk of being misleading," that additional information would be required to accompany such results, and that as such, billboards, radio and television advertisements were not appropriate forms of media for advertising past results. The Guidelines also contain specific restrictions and instructions regarding advertising specific dollar amounts or aggregating past results.

The Court's opinion reiterates that lawyer advertising is protected commercial speech under the First Amendment and concluded that the Florida Bar, while claiming that the inclusion of past results in tv and radio advertisements was inherently misleading, failed to provide any factual support for this claim. Indeed, surveys conducted by the Bar itself indicated that consumers felt that past results were an important piece of information when choosing a lawyer. In addition, the disparity in the rules and guidelines in allowing past results in other forms of advertising, but excluding it from billboards, television and radio ads, was troubling to the Court.

The Court concluded that, "The Bar has failed to demonstrate that its restrictions advance the governmental interests at play. For that reason alone, the Rules regarding the use of past results in attorney advertising as interpreted by the Guidelines are unconstitutional." But the analysis did not end there; the Court also held that, "The Bar has additionally failed to demonstrate that its subject restrictions on attorney speech are no broader than necessary to serve the interests they purport to advance."

But the Court  went further than simply stating that the Bar's ban on Rubenstein's ads at issue in this particular case was unconstitutional. The opinion goes on to analyze the complete prohibition on attorney advertising referencing past results in indoor and outdoor display, television and radio media and to conclude that the blanket restriction is unconstitutional, stating,

The Bar can regulate attorney advertising. But, so long as it has not proven that its complete ban on advertising referring to past results in the specified media supports a substantial governmental interest, it is not justified in doing so as articulated in the Guidelines. The Bar may in the future seek to reconstitute the Guidelines by addressing and meeting its evidentiary burden, or may seek to introduce some sufficiently tailored variation of the Guidelines.

It remains to be seen whether Florida will attempt to modify the Guidelines.

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