Social Media Ethics for

Attorneys

Prof. Jonathan I. Ezor

Touro Law Center for Innovation in Business, Law

and Technology

Counsel, Olshan Frome Wolosky

jezor@tourolaw.edu

@ProfJonathan on Twitter

NYC Bar Social Media CLE

March 14, 2014

Electronic

Communications

Crucial for All

Businesspeople

• Multiple channels of electronic business

communication

– E-mail

– Text messages

– Web sites

– Videoconferencing

– Social media

– Others

• Can be one-way, two-way or multipoint

jezor@tourolaw.edu

Common Challenges of

Electronic Business Communication

• Addressing and attachment errors

• Lack of nuance & tone

• Heightened expectations of responsiveness

• Informality

• Compliance

• Management

jezor@tourolaw.edu

Attorneys’ Ethical

Obligations Add to

Challenges

• Rules of Professional Conduct impact on

attorney communication

• Lawyers must ensure compliance with

those as well as with good business

practices

• Confidentiality biggest potential breach

jezor@tourolaw.edu

Newly Added

Model Rule 1.6(c)

A lawyer shall make reasonable efforts

to prevent the inadvertent or

unauthorized disclosure of, or

unauthorized access to, information

relating to the representation of a

client.

jezor@tourolaw.edu

Concluding Paragraph from ABA

Technology Proposal

• Technology can increase the quality of legal services,

reduce the cost of legal services to existing clients, and

enable lawyers to represent clients who might not

otherwise have been able to afford those services. Lawyers,

however, need to understand that technology can pose

certain risks to clients’ confidential information and that

reasonable safeguards are ethically required. The

Commission’s proposals are designed to help lawyers

understand these risks so that they can take appropriate

and reasonable measures when taking advantage of

technology’s many benefits….

jezor@tourolaw.edu

Investigative Issues

• How are social media being used?

– Information about case?

– Information about opposing counsel? Judge?

– Information about parties? Witnesses? Jurors?

• Front page article in Washington Post (May 29,

2010) about increasing use of subpoenas to

obtain information from social networks:

http://ezor.org/jpsvx

jezor@tourolaw.edu

http://ezor.org/czax6

http://ezor.org/8k498

http://ezor.org/am9oh

http://ezor.org/r5k76

http://ezor.org/ry07c

http://ezor.org/fqbq1

http://ezor.org/1eb3w

Evidence Collected in Violation of

Ethics Rules Probably Admissible,

But…

Lying To A Tribunal

• Model Rule 3.3 prohibits attorneys from

making a false statement of fact to a

tribunal

• New connections via social media provide

“channels” for discovery of such

statements

http://ezor.org/5d3h9

Advising Clients on

Social Media Posts

• Ethical issues regarding clients’ social media

posts

• Questions of spoliation, disclosure

• Rules different for civil, criminal matters

jezor@tourolaw.edu

http://ezor.org/x8as9

Revised Model Rules

1.18(a) and (b)

(a) A person who consults with a lawyer about the

possibility of forming a client-lawyer relationship with

respect to a matter is a prospective client.

(b) Even when no client-lawyer relationship ensues, a

lawyer who has learned information from a prospective

client shall not use or reveal that information, except

as Rule 1.9 would permit with respect to information of

a former client.

jezor@tourolaw.edu

NYSBA Ethics Opinion 899

http://ezor.org/hsg1y

“Specialties”

jezor@tourolaw.edu

NYSBA Ethics Opinion 972

http://ezor.org/mwj05

CONCLUSION

6. A law firm may not list its services under the heading

“Specialties” on a social media site. A lawyer may not list

services under that heading unless the lawyer is certified in

conformity with the provisions of Rule 7.4(c).

Recommendations

• LinkedIn allows parties to “recommend” the work of

a another participant. Issues?

• What about asking a client to recommend your

work?

• Any other risks in posting information about your

matters?

jezor@tourolaw.edu

Recommendations

• Be mindful of rules that place limitations on the

use and content of testimonials

• Model Rule 4.1 (duty of candor) prohibits the

making of a false statement of material fact to a

third person

– Beware of possible exaggerations regarding your

biography, experience, etc.

• What about asking a judge to recommend you?

• What about announcing on Twitter, Facebook or

LinkedIn that you just won a big jury trial or

negotiated a big deal?

jezor@tourolaw.edu

Recommendations

• Depending on the rules in your

jurisdiction, this could require you to add

a disclaimer along the lines of “results will

vary in each case” or similar language

• A related issue, depending on the content

of your blogs or tweets

– Could they be governed by your state’s

restrictions on lawyer advertising?

– If so, what are your obligations?

jezor@tourolaw.edu

http://ezor.org/qnt43