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FIVE SOCIAL MEDIA ETHICAL ISSUES FOR TEXAS LAWYERS

VIEWS: 5 PAGES: 8

									  FIVE SOCIAL MEDIA ETHICAL ISSUES
         FOR TEXAS LAWYERS




         BRADLEY B. CLARK
           Gray & Becker, PC
             900 West Ave.
           Austin, TX 78701




           State Bar of Texas
           24TH ANNUAL
ADVANCED ADMINISTRATIVE LAW COURSE
             June 7-8, 2012
                 Austin

            CHAPTER 16.2
Five Social Media Ethical Issues for Texas Lawyers                                                                                                    Chapter 16.2

                                                                 TABLE OF CONTENTS

I.     INTRODUCTION .................................................................................................................................................. 1

II.    ETHICAL ISSUE #1: FILING SOCIAL MEDIA WITH THE STATE BAR OF TEXAS ................................... 1

III. ETHICAL ISSUE #2: OUTSOURCING SOCIAL MEDIA CONTENT CREATION & MANAGEMENT ........ 1

IV. ETHICAL ISSUE #3: PERSONAL V. PROFESSIONAL USE ............................................................................ 2

V. ETHICAL ISSUE #4: ATTORNEY-CLIENT RELATIONSHIPS ........................................................................ 2

VI. ETHICAL ISSUE #5: TESTIMONIALS & RECOMMENDATIONS .................................................................. 3

VII. CONCLUSION ....................................................................................................................................................... 3




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Five Social Media Ethical Issues for Texas Lawyers                                                         Chapter 16.2

FIVE SOCIAL MEDIA ETHICAL                                       a Facebook page. Facebook pages are available local
                                                                businesses, companies, brands, products, artists, bands,
ISSUES FOR TEXAS LAWYERS                                        public figures, entertainment, causes, and communities.
                                                                A Facebook profile, on the other hand, is a summary of
I.    INTRODUCTION                                              who you are, where you live, what you do, what you
      Social networking services have been around
                                                                like, where you work, and more. A profile is meant to
since 1994 when the first online communities focused
                                                                be private whereas a page is meant to be public in the
on bringing people together who shared similar
                                                                sense it is created for the purpose of generating leads.
interests in chat rooms and personal webpages.
                                                                      Facebook pages are more likely to be considered
Lawyers have participated in online communities since
                                                                advertisements whereas private Facebook profiles are
these early days. It wasn't until the turn of the century
                                                                not. The former are advertisements and must be filed
that social networking took off with the launch of
                                                                with the State Bar; Facebook profiles generally do not.
LinkedIn (2003), Facebook (2004), YouTube (2005),
                                                                      Interpretive Comment 17 also provides that
Twitter (2006), Avvo (2007), Martindale Connected
                                                                "[b]logs or status updates considered to be educational
(2009), and Google+ (2011).
                                                                or informational in nature are not required to be filed
      The current version of the Texas Disciplinary
                                                                with the Advertising Review Department. However,
Rules of Professional Conduct took effect on June 1,
                                                                attorneys should be careful to ensure that such postings
2005. At that time, Facebook was only one year old
                                                                do not meet the definition of an advertisement subject
and focused exclusively on college students. As of
                                                                to the filing requirements."
Today, there are more than 900 million monthly active
                                                                      Twitter is a micro-blogging platform limiting any
users engaging on Facebook.
                                                                single piece of content to 140 characters. Many
      Despite the nearly 20-year history and exponential
                                                                attorneys use Twitter for sharing information, promote
growth of social networking sites, the Texas
                                                                content, drive traffic to landing pages, and update
Disciplinary Rules of Professional Conduct do not
                                                                followers on what they are doing or where they are.
contain the phrase "social media" and have relied on
                                                                These types of ―Tweets‖—as they are called—are
existing rules to regulate our use of social media.
                                                                generally ethical under Interpretative Comment 17.
      Lawyers are using social media to build
                                                                      Some lawyers, however, use Twitter to advertise.
relationships, to market their services to existing
                                                                For example, a DWI lawyer that tweets: ―Need a DWI
relationships, and to position themselves as thought
                                                                lawyer? Call 512-DNT-BLOW‖ does constitute an
leaders in a crowded market space. Facebook, Twitter,
                                                                advertisement and must be filed with the State Bar.
LinkedIn, Google+, Avvo, Martindale Connected,
YouTube and individual blogs are just some of the
                                                                III. ETHICAL ISSUE #2: OUTSOURCING
platforms used by lawyers to reach their target
                                                                     SOCIAL MEDIA CONTENT CREATION &
audience.
                                                                     MANAGEMENT
      While lawyers use social media to grow their
                                                                     Generating quality digital content and managing
practice on the one hand, they also use social media to
                                                                that content with an effective social media campaign is
investigate claims, defenses, and discovery relevant
                                                                a significant time commitment. Most lawyers simply
evidence. Social media discovery is quickly developing
                                                                do not have enough time to run an effective social
into a niche practice area and the law is trying to catch
                                                                media campaign in addition to practicing full time. As
up.
                                                                a result, there is a growing market for law firm online
                                                                marketing including content creation and management.
II. ETHICAL ISSUE #1: FILING SOCIAL                                  Today, individual lawyers and law firms can and
     MEDIA WITH THE STATE BAR OF TEXAS
                                                                do hire companies whose copywriters generate content
     Part VII of the Texas Disciplinary Rules of
                                                                in their targeted practice area. These companies not
Professional Conduct applies to the dissemination of
                                                                only create the content but also manage the social
content over the Internet by Texas lawyers. Interpretive
                                                                media campaign for the lawyer or law firm.
Comment 17 gives the most guidance to lawyers
                                                                     Turning over your social media campaign to a
regarding what must be filed and what need not be
                                                                company of non-lawyers who are not familiar with the
filed.
                                                                advertising rules and who are not ultimately
     "Landing pages such as those on Facebook,
                                                                responsible for their violation makes using such a
Twitter, LinkedIn, etc. where the landing page is
                                                                company extremely risky for lawyers. Lawyers should
generally available to the public are advertisements.
                                                                also be aware of the revised barratry statute in Texas
Where access is limited to existing clients and personal
                                                                and the penalties it imposes.
friends, filing with the Advertising Review Department
is not required." Interpretive Comment 17.
     For purposes of this discussion you should
consider the difference between a Facebook profile and
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Five Social Media Ethical Issues for Texas Lawyers                                                           Chapter 16.2

     Although these risks alone are enough for most                  No comment on this article except that the
lawyers to think twice about turning their social media              twins have posted a bond to cover our
content creation and management over to a third party                judgment v. them pending their appeal.
the fact remains that a truly effective social media
campaign is one that is genuine and it can only be              Lawyers must always be mindful of whether personal
genuine if it is your voice clients and your target             tweets could impact them professionally and whether
market hears.                                                   professional tweets are in fact professional.

IV. ETHICAL ISSUE #3: PERSONAL V.                               V. ETHICAL ISSUE #4: ATTORNEY-CLIENT
     PROFESSIONAL USE                                                RELATIONSHIPS
     Most lawyers use social media both personally                   Avvo, a lawyer-related directory that rates
and professionally. Doing so can create ethical pitfalls.       lawyers based on experience, industry recognition and
     Most lawyers are familiar with the story of Jill           professional conduct is one of the more controversial –
Filipovic, a lawyer at Kramer Levin in New York but             but necessary – social media platforms for lawyers.
infamous for her TSA tweets:                                         It is necessary in the fact that its rating of lawyers
                                                                is perceived as authoritative and accurate by the
     Just unpacked my suitcase and found this                   general public. One of the hallmarks of Avvo is that it
     note from TSA.                                             allows members of the public to post legal questions to
                                                                members of the legal community. Lawyers that answer
Attached to the tweet was a picture of a TSA tag in             these questions are rewarded with additional points
which a TSA agent wrote "get your freak on girl." A             which directly impacts their Avvo rating (a higher
subsequent tweet by Filipovic went even further by              rating must mean a better lawyer).
disclosing that a personal item had been found in her                Lawyers that contribute to building a body of
bag:                                                            knowledge for Avvo will, by that fact alone, have a
                                                                higher Avvo rating then those that do not. Whether it is
     Guess they discovered a ―personal item‖ in                 ethical for lawyers to answer these questions is what
     my bag. Wow.                                               makes Avvo controversial.
                                                                     Avvo’s contribution scheme is dangerous for
That ―personal item‖ was Filipovic’s vibrator. The              lawyers who, in addition to answering the question,
Filipovic story immediately went viral and gained               continue a dialogue with the person that asked the
unwanted international attention for Filipovic and her          question. Any dialogue between the attorney and the
law firm. While Filipovic’s use of Twitter was                  inquirer could result in the unintended creation of an
primarily personal the fact that it was public impacted         attorney–client relationship. Additionally, a Texas
her professionally.                                             attorney answering a question from a person in New
     John Quinn, the outspoken managing partner of              York is engaging in the unauthorized practice of law in
Quinn Emanuel, found himself opposing a motion for              New York.
sanctions by former clients (and Facebook rivals)                    If lawyers choose to contribute to Avvo I strongly
Cameron and Tyler Winklevoss.                                   encourage the use of a disclaimer at the beginning or
     After winning a fee dispute with the twins arising         end of your answer like the following:
out of their settlement with Facebook, Quinn tweeted:
                                                                     DISCLAIMER: THIS RESPONSE DOES
     Winklevoss twins lose again: QE payday                          NOT CONSTITUTE LEGAL ADVICE OR
     cometh.                                                         CREATE AN ATTORNEY – CLIENT
                                                                     RELATIONSHIP.    YOU     SHOULD
The dispute at the hearing on the motion for sanctions               CONSULT A LAWYER IN YOUR STATE
was whether the court's ruling was sealed and, if so,                REGARDING THE INDIVIDUAL FACTS
whether Quinn violated the court's order by sending the              AND CIRCUMSTANCES OF YOUR
tweet (never mind the issue of whether Quinn’s tweet                 CASE. THIS RESPONSE IS SIMPLY A
was professional). Quinn was ordered to appear before                SUMMARY OF THE LAW IN TEXAS
the court and explain his actions.                                   WHICH MAY NO LONGER BE
     Ultimately, the court upheld the fee award and                  EFFECTIVE AT THE TIME YOU READ
Quinn was not sanctioned. Undeterred, Quinn then sent                THIS.
sent the following tweet in response to a New York
Times article about the ongoing dispute between the
twins and Facebook:


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Five Social Media Ethical Issues for Texas Lawyers              Chapter 16.2

VI. ETHICAL ISSUE #5: TESTIMONIALS &
     RECOMMENDATIONS
     LinkedIn and Avvo both allow clients to
recommend and review lawyers. Most lawyers take
advantage of this feature and have asked clients for
testimonials and recommendations. Lawyers must
carefully review each recommendation for accuracy.

     Rule 7.02(a) states: "[a] lawyer shall not make or
sponsor a false or misleading communication about the
qualifications or the services of any lawyer or firm." A
"communication is false or misleading if it: (1)
contains a material misrepresentation of fact or law, or
omits a fact necessary to make the statement
considered as a whole not materially misleading." Rule
7.02(b)(1).
     A lawyer is responsible for each piece of content
and any testimonial or recommendation that contains a
false or misleading statement will result in a
disciplinary proceeding.

VII. CONCLUSION
     Is social media use by lawyers dangerous? The
American Bar Association published an article in
February 2011 raising this question. See Seduced: For
Lawyers, the Appeal of Social Media is Obvious. It’s
Also Dangerous by Steven Seidenberg. In short, social
media use by lawyers can be dangerous especially
given its instantaneous use, public nature, and
permanent record. Carefully following the tips in this
paper and applying existing rules and commentary to
each situation will ameliorate any danger presented by
using social media to build relationships, to market
their services to existing relationships, and to position
themselves as thought leaders in a crowded market
space.




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