First Amendment Lawyers Association February 15, 2013 Meeting. Ethical Considerations Regarding Social Media

First Amendment Lawyers Association February 15, 2013 Meeting Ethical Considerations Regarding Social Media 1 Paul J. Cambria, Jr., Esq. Lipsitz Green Scime Cambria LLP 42 Delaware Avenue, Suite 120 Buffalo, New York 14202 Phone: (716) 849-1333 Fax: (716) 855-1580 E-mail: pcambria@lglaw.com Metadata Issues As the electronic transfer of information has become the norm in today s business environment, legal practitioners must be increasingly aware of the risks this system presents. Over the past ten years, the unethical use of metadata has become one of these growing sources of concern for lawyers. In short, metadata is information describing the history, tracking, or management of an electronic document. 2 The forms of metadata that most attorneys are familiar with include: create, access, and modify dates, fields that reveal that identity of the computer that created the document, changes revealed through Microsoft Word s track changes function, and embedded comments that may or may not pop-up when a cursor is moved over their location. See ABA Comm. On Ethics & Prof l Responsibility, Formal Op. 06-442 at 5 (2006). 1 Adam M. Lynch, a law clerk at Lipsitz Green Scime Cambria LLP, and Timothy P. Murphy, Esq., an associate at the firm, both assisted in preparing these materials. 2 New York State Bar Association, Commercial and Federal Litigation Section, Electronic Discovery Committee, Metadata: Basic Guidance for New York Attorneys, (April 2008), available at: http://www.nysba.org/content/navigationmenu4/committees/committee_on_electro.htm [hereinafter NYSBA Metadata Guidance]. 1

While the ABA Standing Committee on Ethics and Professional Responsibility had formerly established that attorneys should not examine any information inadvertently disclosed to them while receiving electronic documents, the Model Rules were changed in 2002 so that attorneys could access and review this information, but only after first providing notice to the sender. See Time to Revisit the Ethics of Metadata New York Law Journal Mar. 19, 2012 at S5. Instead of viewing this matter in light of the receiving party, the Committee emphasized on responsibility of the sender to protect any outgoing documents, and in turn, the confidences of their clients. See id. The Committee suggested that concerned attorneys should take affirmative steps to remove metadata from electronic documents, send documents in alternative forms not including metadata, or (if in litigation) negotiate a protective order that includes a provision governing the treatment of inadvertently disclosed information. Id. In December 2001, the New York State Bar Association Committee on Professional Ethics issued Opinion 749; concluding attorneys may not use computer software applications to surreptitiously examine metadata. Id. at S4. In the report, the Committee provided two examples of this surreptitious use: using a text editor to uncover changes in Microsoft Word documents, and placing software bugs in emails to provide access to the identity of the individuals with whom the receiver sends the documents and the comments that those individuals make about it. See New York Committee on Prof l Ethics, Op. 749 (2001). Presently, the New York Rules of Professional Conduct mirror the ABA s sentiment that the burden shall be on the attorney transmitting a document to protect client confidences through metadata removal. Further, the Rules no longer bar 2

lawyers from using this information, but the extent to which this is possible is vague. The Rules now state: Because there are circumstances where a lawyer s ethical obligations should not bar use of the information obtained from an inadvertently sent document, however, this Rule does not subject a lawyer to professional discipline for reading and using that information. NY Rules of Professional Conduct 4.4, cmt. 3. Thus, there is some incongruence between the ABA and New York position on this matter. Whereas states following the ABA model need only notify the sender that they intend to access the metadata, New York lawyers are only formally left with a burden to remove metadata prior to transmittal. Consequently, there is some criticism on this unfair advantage granted to ABA-following states. Attorneys from New York should always take extra precaution when sending electronic documents out-of-state:... A [New York] lawyer sending a digital attachment to an out-of-state lawyer should assume that the receiving lawyer may (and will) ethically study the metadata embedded in the document as long as the lawyer notifies the sending lawyer that the metadata has been received. Indeed, if a receiving lawyer believes the metadata was sent deliberately rather than inadvertently often a plausible conclusion, given the ease of removing metadata then the lawyer need not even notify the sender that the metadata has been received... Roy D. Simon, Simon s New York Rules of Professional Conduct Annotated, at 220 (2012 Ed.) (emphasis added). ABA Formal Op. 06-442 (2006) E-mail and other electronic documents often contain embedded information commonly referred to as metadata. ABA Formal Op. 06-442, p.1. Metadata, often 3

described as data about data, is electronically stored information that generally is not visible from the face of document that has been printed out, or as first seen on a computer screen. Id. The Model Rules of Professional Conduct do not contain any specific prohibition against a lawyer s reviewing and using embedded information in electronic documents, whether received from opposing counsel, an adverse party, or an agent of an adverse party. Id. The ABA committee concludes that the Rules generally permit a lawyer to do so. Id. But the ABA committee said the only provision in the ABA Model Rules of Professional Conduct relevant to the issue merely requires a lawyer to notify the sender when the lawyer receives what the lawyer should reasonably know were inadvertently sent documents. Id. It does not require the recipient to return those documents unread. The committee also made clear that it was not addressing situations in which documents are obtained through criminal, fraudulent, deceitful or otherwise improper conduct. Id. The ABA committee noted metadata is ubiquitous in electronic documents, and includes such information as the last date and time that a document was saved and by whom, data on when it was accessed, the name of the owner of the computer that created the document and the date and time it was created, and a record of any changes made to the document or comments written into it. Id. Other types of metadata may or may not be as well-known and easily understandable... Moreover, more thorough or extraordinary investigative measures sometimes might permit the retrieval of embedded information that the provider either did not know existed, or thought was deleted, said the opinion. While most metadata 4

probably is of no import, metadata can sometimes reveal such critical information as who knew what when, or negotiating strategies and positions. Id. Lawyers who are sending, producing or providing documents to opposing counsel can limit the likelihood of transmitting metadata by avoiding creation of it in the first place, in such ways as not redlining or embedding comments in the document, or by scrubbing the metadata out before they transmit the documents. Id. As another option, the same document can be sent in a different format, such as hard copy or facsimile. Lawyers also may be able to limit the harm of revealing metadata through negotiating confidentiality agreements or protective orders to prevent introduction of evidence based on the information, but Of course, if the embedded information is on a subject such as her client s willingness to settle at a particular price, then there might be no way to pull back that information. Id. at 2. Inadvertent Disclosure of Confidential Materials: Withdrawal of Formal Opinion 92-368 A lawyer who receives a document from opposing parties or their lawyers, and knows or reasonably should know that the document was inadvertently sent, should promptly notify the sender in order to permit the sender to take protective measures. To the extent that Formal Opinion 92-368 opined otherwise, it was withdrawn in ABA Comm. On Ethics & Prof l Responsibility, Formal Op. 06-440, p. 1. On November 10, 1992, the ABA Committee issued Formal Opinion 92-368, Inadvertent Disclosure of Confidential Materials, in which it was opined as follows: A lawyer who receives materials that on their face appear to be subject to the attorney-client privilege or otherwise confidential, under circumstances where it is clear they 5

Id. at 2. were not intended for the receiving lawyer, should refrain from examining the materials, notify the sending lawyer and abide the instructions of the lawyer who sent them. The opinion covered the circumstances where a lawyer received information subject to the attorney-client privilege or that could otherwise be deemed confidential in a situation where it was clear that the information was inadvertently sent. In that instance, the Committee opined that the receiving lawyer had three obligations: (1) to refrain from examining the materials; (2) to notify the sending lawyer of the receipt of the materials; and (3) to abide by the instructions of the sending lawyer. Id. In February 2002, the ABA Model Rules of Professional Conduct were amended pursuant to the recommendations of the ABA Commission on Evaluation of the Rules of Professional Conduct. The amendment to Rule 4.4, Respect for Rights of Third Persons, not only directly addressed the precise issue discussed in Formal Opinion 92-368, but narrowed the obligations of the receiving lawyer. The amendment added Rule 4.4(b), which states that [a] lawyer who receives a document relating to the representation of the lawyer's client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender. Id. Rule 4.4(b) thus only obligates the receiving lawyer to notify the sender of the inadvertent transmission promptly. The Rule does not require the receiving lawyer either to refrain from examining the materials or to abide by the instructions of the sending lawyer. Comment [2] to Rule 4.4 explains, [w]hether the lawyer is required to take additional steps, such as returning the original document, is a matter of law beyond the scope of these Rules, as is the question of whether the privileged status of a document has been waived. Comment [3] goes on to state the following: 6

Some lawyers may choose to return a document unread, for example, when the lawyer learns before receiving the document that it was inadvertently sent to the wrong address. Where a lawyer is not required by applicable law to do so, the decision to voluntarily return such a document is a matter of professional judgment ordinarily reserved to the lawyer. See Rules 1.2 and 1.4. Id. Again, because the conclusion of Formal Opinion 92-368 conflicted with amended Rule 4.4, the opinion was withdrawn. Capital Accounts: Like to Brag on Twitter? Don't Forget the Fine Print Ethical issues surrounding lawyers use of social media to broadcast legal success stories and advertisements is a hot topic in California. Recently, the California Bar s Committee on Professional Responsibility and Conduct released a formal opinion regarding Rule 1-400, Advertising and Solicitation, of the California Rules of Professional Conduct. See Tweeting? Don't Forget the Fine Print, The Recorder (California), January 7, 2013. The Committee stated that the professional rules governing legal advertising and communication are not relaxed merely because compliance may be more complex or awkward in a social media setting. Id. The opinion was spurred by a hypothetical situation regarding a lawyer s social media communications: Over the course of a month, an attorney tells about 500 personal and professional Facebook friends things like Case finally over. Unanimous verdict! Celebrating tonight. And: Won another personal injury case. Call me for a free consultation. Id. When evaluating the hypothetical communications, the Committee specifically looked at whether the posts were concerning the attorney s availability for professional employment, which is a test established by rule 1-400 of The California 7

Rules of Professional Conduct. Id. The Committee held that the celebratory post did not violate Rule 1-400, because it did not offer the lawyer s services. However, a celebratory post containing a generalized client testimonial such as client is delighted, or a question like who s next?, is going too far. Proclaiming that a client is delighted may be construed as violating the ban on distributing client testimonials, unless they are accompanied by a disclaimer. Id. In addition, the who s next? question may be interpreted as improperly guaranteeing or predicting the result of representation. As a general rule, any communication to potential clients should be accompanied with the word advertisement, newsletter, or a comparable phrase to identify the lawyer s monetary interests in the communication. Id. To this end, the Committee held that the post, Won another personal injury case. Call me for a free consultation would have been inappropriate because it did not contain the word advertisement, or an analog of it. Id. These potentially lengthy disclaimers may present problems for attorneys communicating through Twitter, which has a 140 character limit. Although the Committee s opinion is not legally binding, it could be viewed as highly persuasive with the California s State Bar Court and Supreme Court. Managing the Expanding Use of Social Media More than 17,500 users of LinkedIn are identified as attorneys in the Greater Boston Area; showing how pervasive social networking for lawyers has become. There are cons to social media as well, such as the disturbing amount of fraudulent scams and false or misleading information. See How to Manage the Expanding Use of Social Media, by Lewis Cohn and Mollie Bisesi, Law Journal News Letters, August 1, 2012. 8

Attorneys must be careful when advertising on social media; they should make sure that what they say in describing themselves and their legal practices is 100% true. Lawyers must also be careful what they post are not copyright infringement, as that is a strict liability tort. Rule 7.1 of the ABA Model Rules covers Communications Concerning a Lawyer s Services generally. Rule 7.2 governs advertising, including through the use of social media. While lawyers can argue that they are not advertising through social media, it is difficult to distinguish. Ethics committees in Arizona, Alabama, Illinois, and Texas have recently said that interpretive comments on social media sites are considered advertising and must be filed with the bar. Rule 7.3 covers direct contact. Even unintended direct contact with clients can have consequences. All communications on social media websites should have a disclaimer, especially since some sites do not give complete control over privacy and redistribution of the content. In sum, lawyers should record and inventory every communication they make via social media. Social Networking and ABA Ethics One school of thought teaches that regarding social medial networking, attorneys should take heed, and, at the very least, apply the same ethical rules that they have been using in the past. After studying social media issues for three years, the ABA s Ethics 20/20 Commission stated in a December 28, 2011 report that [i]n general... the principles underlying our current Model Rules are applicable to these new developments. See Social Networking in Line With ABA Ethics, The Legal Intelligencer, August 13, 2012. Therefore, many of the recommendations involve 9

clarifications and expansions of the existing rules, rather than a complete reworking of the rules: Don t Blog About Your Clients Despite the prevalence of blogging and social media posts, you are still unable to expose client confidences. One Illinois lawyer had her license suspended because of 60 days for the content of her blog. The authorities said that although no client was referenced by specifically by name in the blog, it did contain information sufficient to identify some clients. Id. Thus, do not blog or post about your cases or your clients. Accidental Attorney-Client Relationships Tread carefully if and when you decide to respond to an Internet post seeking what could be construed as legal advice. The Ethics 20/20 Commission has taken the position that this pitfall exits only when an attorney gives a prospective client a reasonable expectation that he or she is willing to enter into an attorney-client relationship. Id. If you are thinking of cyberspace to begin fielding questions, attach a disclaimer disavowing any attorney-client relationship with your response. Id. In addition, keep your answers generic and expressly state that your answer should not be construed as legal advice. Thou Shalt Not Solicit Although ethical rules prohibit attorneys from soliciting potential clients, attorneys may still take to Twitter and Facebook and comply with solicitation restrictions. 10

Id. In order to be construed as solicitation, an attorney would have to target a specific individual and intend to be perceived as offering a legal service. Id. Unauthorized Practice of Law As evidenced by your bar licenses, you may only provide legal advice in the jurisdictions where you are licensed. However, this seemingly clear-cut rule begins to blur when applied to the Internet. Are you engaging in the unauthorized practice of law when you answer a question on an Internet forum regarding Nebraska jurisdiction, but you re only licensed in Florida? It appears that he same solution to prevent unintended attorney-client relationships keep your answers generic, avoid addressing specific facts, and provide a disclaimer, is warranted here. Id. Rules for Recommendations Who Gives a Shirt? The ABA s Model Rule 7.2 states that an attorney shall not give anything of value to a person for recommending the lawyer s services. Id. Does this apply to promises of endorsement in exchange for endorsements in return? The ABA s 20/20 Ethics Commission provided some insight into the issue when it evaluated a law firm s practice of distributing t-shirts with the firm s logo. The firm then offered a chance to win a prize to anyone who posted a photo of themselves wearing the shirt on their Facebook page. The ABA held that the t-shirt was arguably something of value. Id. 11

Trial Publicity and Overstating Your Capabilities and Experience In addition to what a particular judge may proscribe, the ABA s Model Rule 3.6 limits what an attorney may say about a case. Take for example attorney Mark O Mara, who represented George Zimmerman. Id. Take care not to prejudice your client and case by revealing too much in a social media post. Further, ABA Model Rule 7.1 prohibits false or misleading communications. This also applies to the social media setting. Id. Thus, when posting or tweeting, be sure not to overstate your capabilities, experience, or successes. Exercise Competence in Technology One way to become aware of the risks associated with technology, and specifically social media, is to become familiar with it. Although this is not mandated by any of the rules of the ABA, practice some due diligence and bring yourself up to speed on what technology is available, how you can use it effectively, and the risks associated with it. Overall, use common sense. If you would not put it in a letter, do not put it on the Internet. Group Coupon Marketing Opinion Indiana The Indiana State Bar Association s Legal Ethics Committee believes that the growing group coupon forms of social media marketing are fraught with peril for attorneys, and is likely not permissible under the Indiana Rules of Professional Conduct. See Indiana State Bar Association Legal Ethics Committee Opinion No. 1, 2012 JDH- 1. Indeed, there are a growing number of companies that operate by cooperating with businesses, and then periodically notify consumers of the opportunity to purchase 12

coupons for these cooperating businesses, at a set price for a specific product valued at a discount compared to its normal price. The marketing company and the cooperating business establish a price for the good or service and share in the proceeds, which results in a further discounted payment to the cooperating business. A few states have looked at the issue. For instance, the New York State Bar Association Committee on Professional Ethics issued Opinion 897 on 12-13-11, stated that any use of group coupons requires the lawyer to provide a full refund to the client. Under the Indiana Rules, the lawyer is responsible for ensuring there are no conflicts of interests between the prospective client and existing clients of the lawyer and law firm. By delegating the creation of the attorney-client relationship to the marketing company, the lawyer may be in violation of the Rules of Professional Conduct. Furthermore, the safekeeping of property is an issue, since some of the contracts require the marketing company to retain control of the fee, of which it remits a portion to the attorney. The Indiana Committee believes this violates Rule 1.15, and further complicates Rule 1.16, for when a lawyer needs to decline or terminate representation of a client. In addition, these financial relationships are likely prohibited under Rule 5.4, which states that a lawyer may not share fees with a non-lawyer. While advertising is okay, these group coupon companies violate advertising and fee sharing rules in the way they channel buyers of legal work to a specific attorney. The Committee believes that while it may be possible for a lawyer to advertise through a group coupon program, this arrangement is fraught with peril, and the lawyer can easily find himself in violation of the Rules of Professional Conduct. 13

Social Media Marketing; Worth the Risk? Social media, though risky, presents a substantial marketing opportunity for attorneys and law firms. Advantages of using social media include the ability to quickly reach large and diverse groups of people, and the ability to make information available to all who have an interest. Posting on a social media site delivers information faster than email and does not limit parties to include. Further, social media facilitates crossmarketing, making clients aware of areas of expertise that they may not have been aware of otherwise. Along with the benefits of efficient and effective delivery, come risks of breach of information. A large risk is breach of client confidentiality, through information posted on social websites. Further, some firms believe every hour spent on social media updating is an hour not being billed to clients. Do Not Fall into Ethical Traps; Social Networking Profiles Can Lure You into Precarious Legal Positions Utilizing a non-lawyer third party to reach a witness through social media violates several rules of professional conduct. A lawyer cannot seek to friend a witness through a third party because such an action is deceptive to the witness. Failing to inform the witness the inquiry is sought by an attorney constitutes the making of a false statement of material fact to the witness. Further, though the attorney is not the one making the request, he or she is responsible for the violative conduct of the inquirer being supervised. To avoid ethical pitfalls when using social media, lawyers must be mindful of the extent of electronic communications and content sharing. When using social media, 14

lawyers should compare their actions to the Model Rules of Professional Conduct ( MRPC ). Lawyers are to remember that even if no client-attorney relationship is established, the information gathered through a consolation remains privileged. Certain jurisdictions, such as D.C., do not prevent lawyers from providing general information in chat rooms. However, it is advised that such information not be legal advice tailored to a specific fact. Further, lawyers are warned against providing legal information in a chat room due to the inability to screen the potential client. As enumerated in the MRPC, lawyers are not to solicit work in person, by the telephone, or by real-time electronic contact. Issues arise in regards to what constitutes real-time electronic contact. Though e-mail is acknowledged to not be real-time contact, chat room discussions are still subject to debate. Currently, some jurisdictions prohibit attorney solicitations in chat rooms, while others do not. In protecting the confidential information of a client, it is imperative lawyers have an understanding of the cloud. The Pennsylvania Bar Association describes the cloud as information not on ones computer. When posting information on the cloud lawyers run the risk of data being leaked to the wrong recipient. It is prudent attorneys be cautious when using social media as a discovery tool. The New York State Bar Association ethics committee issued that a lawyer can ethically view the Facebook profile of another, only if the lawyer does not friend the party. Therefore, for use of discovery, lawyers may use the public view of a profile as available to all members of a network. There are an infinite number of ways that information posted to social media may be relevant to litigation. The New York State Bar Association has stated that accessing another s Facebook or MySpace is ethical so long as the attorney does not friend the 15

party or direct someone else to. However, the New York City Bar opines that an attorney or agent may friend another party so long as uses her real name. In regards to jurors, the New York County Lawyers Association held the passive monitoring of jurors, such as viewing a publically available blog or Facebook page, is permissible so long has the lawyer have no direct contact with the juror at trial. Lawyers need to be weary of social media such as LinkedIn and Twitter which allow users to view who has accessed their profile. Proficiency with social media has also become essential in ensuring the proper representation of a client. In some instances, such as matrimonial cases, attorneys often use social media as a primary source of evidence. In an instance like this, not knowing how to use social media could result in failure to competently represent your client. Further, not knowing how to navigate social media sites could compromise a lawyer s ability to identify where relevant information is located, and may this hamper a lawyer s effective and diligent representation of a client. Social Media Evidence and Federal E-Discovery The growth of social networking sites, like Facebook, Twitter and LinkedIn, and the abundance of personal information within them, makes social media a fertile source for potential evidence. Social media is increasingly seen in federal and state court decisions, but because of its unique characteristics, the evidentiary standards developed for other types of electronically stored information may not be sufficient. See Authenticating Social Media Evidence; Federal E-Discovery New York Law Journal October 2, 2012. 16

Rule 901(b) of the Federal Rules of Evidence provides a list of ways social media may be authenticated. Witness testimony is straightforward if the person who created the evidence can testify to authenticate it, but testimony with factual specificity about how the social media information was generated can help the courts determine whether it has been properly authenticated. Circumstantial Authentication is also possible due to the wealth of information contained on social media sites. A combination of photos, video, comments, email addresses, and time stamps, in conjunction with location and IP addresses, may be used for authentication. While social media can be a potent source of evidence; however, litigators need to examine their methods of data collection at the start of trial, to ensure that that important social media evidence is not excluded due to a failure of authentication. Formal Discovery Discovery is generally governed by Fed. R. Civ. P. 26(b) and 34(a). A litigant s expectation and intent that communications be private is not a legitimate basis for shielding relevant communications. EEOC v. Simply Storage Mgmt., LLC, 2010 WL 3446105 at *3 (S.D. Ind. May 11, 2010). Defendants in one case had viewed a public MySpace profile after she accused them of sexual harassment, and subsequently put forth a discovery motion upon which the court ruled they could obtain private messages with third parties. Mackelprang v. Fidelity Nat l Title Agency of Nevada Inc., 2007 WL 119149 (D. Nev. 2007). One New York trial court has ruled that in a personal injury action, discovery is generally permitted with respect to materials relevant to the extent of the injury and 17

damages, including social network information. Romano v. Steelcase Inc., 2010 NY Slip Op 20388 (N.Y. Sup. Ct., Suffolk Co., Sept. 21, 2010). The court said that the plaintiff could not hide behind self-regulated privacy settings and that current and deleted page information was available for discovery. In a subsequent 4th Department case, the Appellate Division affirmed that a party is not entitled to social network data if they cannot adequately show it is relevant. 2010 N.Y. Slip Op. 08181 (Nov. 12, 2010). The party was not allowed to conduct a fishing expedition into the plaintiff s Facebook account. Informal Discovery The New York City Bar committee on Professional Ethics issued an opinion entitled Obtaining Evidence From Social Networking Websites which states that a lawyer may not obtain through deceitful means information from a social networking site. This includes making a false profile and friending a party. See generally Rules 4.1, 8.4(c). This rule also applies to any agent of the attorney (including an investigator). See Rule 5.3(b)(1). Rather, they condone using methods such as friending without deceit or subpoenaing the social network provider. The New York State Bar Association issued a 2009 opinion similarly stating that an attorney cannot hire an investigator to mislead a potential witness and becoming that witnesses friend to obtain information for impeachment. The State Bar committee on Professional Ethics also put out an opinion (Op. 843, 2010) that says when representing a client in pending litigation, a lawyer may access the information available to the public for the purpose of possible impeachment material. They noted this is different than 18

friending was different, and Rule 8.4 prevented deceptive practices, regardless of whether the party was represented or not. ººººº In sum, social networking, e-discovery and online advertising raise a host of legal issues that will continue to require discussion and vigilance on the part of attorneys to remain within state ethical guidelines. 19