Legal Implications of Social Media for Your Clients and Your Firm March 28, 2013 Orange County Bar Association Technology Committee Topics Legal Implications of Social Media for Your Clients Donna M. Chesteen, Esq., The Tech Law Firm Legal Implications of Social Media for Your Clients Keith Kanouse Jr., Esq., The Tech Law Firm Effect of Social Media on Actual Cases Ethan Wall, Esq., Richman Greer Samir Ghia, Esq., Kubicki Draper Disclaimer The views expressed on this presentation are based on the professional and educational experiences of each author. This presentation is given as legal information and not legal advice. No one should act upon any opinions or information in this presentation without first seeking qualified professional counsel. Legal Implications of Social Media for Your Clients Donna M. Chesteen, Esq. Social Media from Your Client’s Point of View Using social media to communicate Whose speech is it? Who owns the data? Who owns the social media account? Using social media to vet employees Protecting IP when using social media Discovery of social media Whose Speech Is It? Commingling of business and personal messaging can cause ambiguities. Why should you care? Reputation of the organization Vacation pics may make an employee look less responsible in the eyes of a client/potential client Financial implications Political or religious posts may cause a client/potential client to impute views to the organization Can alienate an entire segment of client base Vicarious liability for torts Court may have problems determining whether speech was within scope of employment (ex., defamation) Apparent agency issues Organization may be bound by speech of individual if 3d party acts in reliance on the speech Who Owns the Data/Account? Again, why do you care? Discovery More expensive if personal/business speech is mixed because there is more data to collect and review Business litigation requires exposure of personal speech and vice versa Employee departure from organization Who Owns the Data/Account? Two recent cases PhoneDog, LLC v. Noah Kravitz1 San Francisco Fed. Court PhoneDog sued former employee for continuing to use business-related Twitter account after he left company No written policy Settled Dec 2012 defendant kept Twitter account and followers (17,000) Who Owns the Data/Account? Eagle v. Edcomm2 US Dist Ct for District of PA Eagle terminated by former employer, Edcomm Edcomm continued using her LinkedIn account but replaced her picture with that of another Eagle prevailed on 3 state claims misappropriation of identity invasion of privacy PA statute prohibiting unauthorized use of someone’s name Eagle was unable to prove damages Court noted that Edcomm did not have a policy in place informing employees of ownership of LinkedIn account What Should Your Policies Address? How to disambiguate speech Ownership of social media accounts Ownership of data – including contacts/followers/connections Rights to business content even if you don’t have rights to account itself3 Steps to insure your control of site once employee that manages and runs site leaves4 Vetting Potential Employees5 May violate anti-discrimination laws if use social media in their recruitment of employees or make employment decisions as a result of protected class information obtained from social media background checks If social media check is not consistent for all applicants, inconsistency can lead to claim of discrimination Policy Suggestions Guidelines for info sought and how it relates to job Protocols and procedures for verifying info Consistent searches for all applicants Have disinterested person perform searches and redact protected info Maintain records of searches and criteria for search Protecting IP6 Problems arise because organization does not have control over what is said and who is saying it Conversations are dynamic instead of scripted Involve people inside and outside company Occur in real time Policy suggestions Prohibit disclosure of confidential information Specify which info is confidential How trademarks and logos may be used Who owns user-generated content on organization sponsored sites and who may be liable for it Protecting IP7 More policy suggestions How organization will enforce rights in its own IP Who may speak for organization on social media and what standards they must meet for tone, content, and timing When employees must post disclaimers making it clear that views are their own and not organization’s Discovery of Social Media Social media is discoverable but scope may vary depending upon case and jurisdiction Mailhoit v. Home Depot8 “profiles, postings or messages” from any social networking site “that reveal, refer, or relate to any emotion, feeling, or mental state of Plaintiff” not specified with “reasonable particularity” EEOC v. Simply Storage Management9 “[i]t is reasonable to expect severe emotional or mental injury to manifest itself in some content, and an examination of that content might reveal whether onset occurred, when and the degrees of distress.” Take-Aways Be proactive! Have specific policies in place Preserve social media once duty to preserve attaches Notes 1. John A. Snyder, PhoneDog v. Kravitz Settlement Points to Need for Agreements on Ownership of Social Media Accounts, Non-Compete & Trade Secrets Report (Dec. 12, 2012), http://www.noncompetereport.com/2012/12/12/phonedog -v-kravitz-settlement-points-to-need-for-agreements-onownership-of-social-media-accounts/. 2. Jessica Mendelson & Robert Milligan, Seyfarth Shaw LLP, Federal Court Questions Whether Damages Exist in LinkedIn Account Ownership Dispute, Lexology (Mar. 2, 2013), http://www.lexology.com/library/detail.aspx?g=88b4e170a34e-46d8-ac98-bd8e5ae9859b. Notes 3. Norah Olson Bluvshtein, Fredrikson & Byron PA, Linkedin Case a “Mixed Bag” According to Judge, Lexology (Mar. 21, 2013), http://www.lexology.com/library/detail.aspx?g=cf95f4e05e32-487a-bfea-098f4471e2b4. 4. Id. 5. Seyfarth Shaw LLP, Avoiding The Legal Pitfalls of Social Media in the Workplace, Lexology (Dec. 16, 2010), http://www.lexology.com/library/detail.aspx?g=23772ce5503b-44c2-bb8b-9dbf09b47420 Notes 6. Corby Cochran Anderson, Nexsen Pruet, Seven Tips for Protecting Your Intellectual Property in the Age of Social Media, Lexology (Oct. 23, 2012), http://www.lexology.com/library/detail.aspx?g=d2887266be9a-4bff-bd52-2c16683911aa. 7. Id. 8. Mailhoit v. Home Depot, Inc., No. CV 11-03892 DOC (SSx), 2012 U.S. Dist. LEXIS 131095, at *7 (C.D. Cal. Sept. 7, 2012). 9. EEOC v. Simply Storage Mgmt., LLC, No. 1:09-cv-1223WTL-DML, 270 F.R.D. 430, at *435 (S.D. Ind. 2010). Notes 9. Gibbons P.C., Lester v. Allied Part 2: “Clean Up” of Compromising Social Media Evidence Can Result in Severe Sanctions, E-Discovery Law Alert (Feb. 21, 2012), http://www.ediscoverylawalert.com/2012/02/articles/legaldecisions-court-rules/lester-v-allied-part-2-clean-up-ofcompromising-social-media-evidence-can-result-insevere-sanctions/. Legal Implications of Social Media for Your Firm Keith Kanouse Jr., Esq. Special thanks to: Jeff Hazen, Assistant Ethics Counsel, FL Bar Kathy J. Bible, Advertising Counsel, FL Bar Social Media from Your Firm’s Point of View May, 2012 Guidelines for Networking Sites May, 2013 Advertisement Rules Modifications Impact on Social Media What can I say? With whom can I connect? Common Do’s and Don’ts May, 2012 Guidelines for Networking Sites Personal pages of individual lawyers on social networking sites that are used solely for social purposes, to maintain social contact with family and close friends, are not subject to the lawyer advertising rules. Communicating about one’s career in a limited manner can be seen as a social purpose, but be careful. Pages appearing on networking sites that are used to promote the lawyer or law firm’s practice are subject to the lawyer advertising rules. Exception to Ad Rules for Professional Communication Exceptions provided for any recipients who “is the lawyer's current/former client, relative, has a prior professional, relationship with the lawyer, prospective client who requested the information, or is another lawyer.” (Rule 4-7.1, 4-7.4) What about a long-time friend? Not unless you have a professional relationship How long is ‘continuing’? Depends, but one encounter is not sufficient What if I met the person at a networking event, we exchanged business cards….can I now connect? You cannot send a social media invite to connect or a follow up email w/o it being considered unsolicited Unsolicited Social Media Invites = Unsolicited Emails Invitations sent directly from a social media site via instant messaging to a third party to view or link to the lawyer’s page on an unsolicited basis are solicitations in violation of Rule 4-7.4(a), unless the recipient is the lawyer’s current client, former client, relative, or is another lawyer. Therefore, you must have a prior professional relationship to send an invite Direct Email Rules to Non-exempt Person - Rule 4-7.18(D) Must comply with lawyer advertising rules 4-7.11 through 4-7.17 Subject line must begin with the word “Advertisement” Must contain a statement of qualifications and experience, including specific experience (including years practiced) in the areas of law being advertised, # cases handled by attorney in trial (if litigation), FL Bar admittance Date, Targeted (mass) emails will require further information Rules do not apply to email sent in response to a prospective client’s request May, 2013 effective New Advertisement Rules New rules expand Ad rules beyond just networking sites into all media, including, email, Internet banners, pop-ups, websites, and video sharing sites. Rule 4-7.11(a) Rule 4-7.8(f) – Exemptions from the filing and review requirement - Computer-accessed communications are: 4-7.6(b) Internet Presence. All World Wide Web sites and home pages accessed via the Internet that are controlled or sponsored by a lawyer or law firm and that contain information concerning the lawyer’s or law firm’s services: Ok, we got it, the Ad Rules apply to Social Media, but what exactly are the rules? May, 2013 effective New Advertisement Rules Advertisements may contain: objectively verifiable past results – Rule 4-7.13(b)(2) objectively verifiable characterizations of skill, experience, reputation or record – Rule 4-7.13(b)(3) testimonials, subject to specific restrictions and disclaimers – Rule 4-7.13(b)(8) COMPUTER-ACCESSED COMMUNICATIONS Information regarding a lawyer’s or law firm’s services that is read, viewed, or heard directly through the use of a computer. Such communications must contain (Rule 47.12(a)): Name of advertising lawyer or law firm Bona fide office by city, town, or county My professional website has that info, that’s not too difficult to follow. Twitter/Facebook/LinkedIn Posts The name of the lawyer or firm and the geographic location of the lawyer’s office are required under the current rules (4-7.2(a)) and the new rules (4-7.12(a)). If firm does contain a lawyer’s name, then a lawyers name must be used Does not make a difference if Social Media profile has been made ‘private’ Example post for @TheTechLawFirm ‘Keith Kanouse Esq.-Orlando: Glad to be a presenter for today's Social Medial Law CLE at #OCBA Tech Committee. Let's hope the questions r easy’ Currently, the ethics department staff is in the process of proposing changes to the social networking guidelines which would make such posts to private accounts exempt from the name and office location requirements. LinkedIn Recommendations / Endorsements New Rules do allow for Recommendations, but if a third party posts information on the lawyer’s page about the lawyer’s services that does not comply with the lawyer advertising rules, especially objectively verifiable. However, for Endorsements, each is listed as a Skill Set / Expertise. Since the FL Bar requires Board Certification to be labeled “an expert in”, one should disable the Endorsement feature on your page. Even though new rules allow 3rd party endorsement of a objectively verifiable skill, experience, reputation or record, any endorsement must still need to objectively verifiable. You must remove any posts by 3rd parties to your social media sites that do not confirm with the rules. If posts are to 3rd party sites to which you aware, you must request post be removed. Miscellaneous Do’s / Don'ts with Social Media Do not friend Judges, as the ability of a Judge to accept/deny conveys a impression that ‘friend’ lawyers may be in a better position to influence. However, mediators may be ‘friend’ a the attorneys and clients with they have or anticipate mediating as long as the mediator does not a conflict of interest occurs. Do not make a Social Media post unless you would also email your entire contact list with the same update. Be careful of saying too much, especially about a client, case, or particularly a Judge. Be particularly aware that you may also have an opposing counsel as a friend who can also read your updates Remember those Southwest commercials? You don’t want to be the one wanting to get away after a TMI post. Do not use plural nouns for a solo practitioner, no matter staff size. Miscellaneous Do’s / Don'ts with Social Media Attorney client relationship can form via Social Media just as easily as it can in-person or over the phone. Same rules do apply. Communication with represented parties rules apply. Therefore, you may have to manually ‘unfriend’ the individual from receiving general updates. Viewing publicly available social media information for unrepresented opposing party is allowed. However, issues may arise when connecting, especially under false pretense, to such a party in order to view non-public social media information. However, under eDiscovery there are ways to force opposing party to turn over private social media communications. That’s right, you can’t ‘Catfish’ the opposition Most Common Reasons for Prosecution The biggest issue with social media is to avoid direct solicitation thru inviting people who are known to be injured to a personal injury website or Facebook page. Lawyers cannot directly solicit clients on a discussion board or chat room. However, one can respond to legal requests, but be careful of conflict of interest, unintentionally forming attorney-client relationship. When posting any update on any website that allows comments that can be construed for professional purposes, one should follow unsolicited direct email guidelines. Blogging can have serious consequences if it violates an advertising or Bar rule Florida Bar v. Conway, 996 So.2d 213 (Fla. 2008). - Attorney received public reprimand for posting the derogatory comments, such as calling her an ‘evil Witch’, about a Judge.