CHAPTER #5

12:45 – 1:15pm

ETHICS:

Law Office 2.0 - How Do You Deal with the Potential Ethical Issues?

Jennifer R. Willner

Halvorson Saunders & Willner, PLLC Bellingham, WA

Electronic format only: 1. Law Office 2.0 2. Appendices-WSBA and ABA Opinions

PowerPoint available for download in electronic format: 1. Law Office 2.0

The electronic version of all of the documents are available on the KCBA website: https://www.kcba.org/cle/EventDetails.aspx?Event=4612

Law Office 2.0 - How Do You Deal with the Potential Ethical Issues? By Jennifer R. Willner

I. Introduction The World Wide Web is ever-evolving. Twitter, Facebook, LinkedIn, Myspace, YouTube … now Google+. Ten years ago we knew that we would live a part of our lives online – now with iPads and Androids it seems like almost all of our waking hours are spent online. And if you consider the fact that your phone probably tracks your every movement – and you have your phone on you at all times – you are perpetually online in a sense. Web applications and technologies which utilize the web have revolutionized how people spread and consume information. On one level, lawyers' use of the Internet as a source for information legal research is commonplace. On another level, the use of the Internet for marketing and online relationship-building is still relatively new. One of the biggest buzzwords out there is “Web 2.0.” Web 2.0 is the term given to describe a second generation of the World Wide Web that is focused on the ability for people to collaborate and share information online. A Web 2.0 site allows users to interact and collaborate with each other in a social media dialogue as creators of user-generated content in a virtual community. Examples of Web 2.0 include social networking sites, blogs, wikis, video sharing sites, hosted services, web applications, and mashups. The evolution of Web 2.0 has provided unique opportunitites for lawyers, but it has also created a host of ethical challenges. The Washington Rules of Professional Conduct have not (yet) been amended to specifically addressed the use of new technology, the Internet and social media. There have been very few advisory opinions relating to the use of the Internet. Two such opinions, 1903 and 2080 appear at the end of these materials as Appendix “A”. Last year, the American Bar Association Commission on Ethics 20/20 (the Commission) released its Initial Draft Proposal—Technology and Advertising (the Proposal). The Proposal outlines changes to Rules 1.18 (Duties to Prospective Client), 7.2 (Advertising), and 7.3 (Direct Contact with Prospective Clients) to clarify how the rules apply to lawyers’ use of client development tools such as interactive websites, lead generators, and social media. WSBA Advisory Opinion 2080 states: “The ABA Model Rules are instructive to Washington lawyers when Washington law does not squarely deal with a similar issue.” The Proposal appears at the end of these materials as Appendix “B”. II. Social Networking Attorneys must take more care than most individuals as to what they post online. There is a veritable Pandora’s box of ethical violations awaiting the unsuspecting blogger,

LinkedIn-er, Tweeter, that impact attorneys, their firms and their clients, such as breaches of confidentiality, conflicts of interest, the creation of unintended relationships, and improper advertising. And those are only the obvious possibilities. Some of the ethical rules that are impacted by an attorney’s use of social media include:

A. Breaches of Confidentiality “A fundamental principle in the client-lawyer relationship is that, in the absence of the client's informed consent, the lawyer must not reveal information relating to the representation.” Comment 2 to RPC 1.6. RPC 1.6(a) provides that lawyers cannot reveal information "relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted" under several narrow exceptions. Lawyers must competently safeguard their client's information against unauthorized or inadvertent disclosure by the lawyer. Even innocuous status updates in Twitter or LinkedIn like, "I'm working on a motion to dismiss in ABC case, arguing XYZ" are risky, since someone might be able to tell from context what case it is. If an attorney posts a status update or tweet from a smartphone, i.e., “just met a brand new client with a lucrative lawsuit”, geo-tagging can show where he was and allows one to guess the client's identity from the location. An attorney may inadvertently reveal confidential information, such as a confidential relationship, by allowing a site like LinkedIn to import Outlook contacts, or allowing others to view his "friend" list, which could include clients. Linking to other websites on Facebook (such as a client’s) could disclose a confidential relationship. Some sites require granting the site developer access to all information placed on it, which could destroy claims of privilege/confidentiality regarding social networking communications. B. Breaches of Conflict of Interest “Loyalty and independent judgment are essential elements in the lawyer's relationship to a client. Concurrent conflicts of interest can arise from the lawyer's responsibilities to another client, a former client or a third person or from the lawyer's own interests.” Comment 1 to RPC 1.8. Unlike other methods of communication, social networking often consists of casual interactions that cannot be distinguished from more formal relationships. Simply by helping out a friend or expressing a public opinion on a public issue, an attorney may inadvertently create a conflict of interest implicating RPC 1.7.

1. Providing casual advice via social media can create an attorney-client relationship or even "prospective" relationship that may not rise to the level of a formal attorney-client relationship, but could potentially conflict with an existing client.

Attorneys are constantly faced with friends who post about their legal troubles, so there is a temptation to give quick advice without thinking about it first, and certainly without running conflict checks.

2. Soliciting confidential information on social media can easily create such

a relationship as well. Acquiring confidential information from the prospective client, even via a casual "tell me more and I'll give you a little advice off-the-record", could then lead to a conflict of interest with a current client.

3. Expressing definitive legal opinions on social media may conflict an attorney out of a case with a current client. In fact, the entire firm could be conflicted out due to one attorney's comments. However, a legal blog does not necessarily pose these ethical dilemmas if there are no communications regarding individual advice. II. LinkedIn and Client Contacts RPC 7.4 states that:

A lawyer shall not state or imply that a lawyer is a specialist in a particular field of law, except upon issuance of an identifying certificate, award, or recognition by a group, organization, or association, a lawyer may use the terms "certified", "specialist" "expert", or any other similar term to describe his or her qualifications as a lawyer or his or her qualifications in any subspecialty of the law.

LinkedIn has a profile section “Experience” which specifically asks for professional “Specialties.” It’s surprising how many Washington lawyers fill in this section. My profile says this: “The Washington Rules of Professional Conduct 7.1 prohibit stating or implying that a lawyer is a specialist in a particular field of law.” Resist the LinkedIn temptation. LinkedIn also has a "Recommendations" feature, allowing your clients to recommend you, and vice versa. The "Recommendations" feature allows clients to say whatever they want. RPC 7.2(b) states that an attorney cannot give something in value in exchange for a recommendation from a client. Clients and attorneys should not quid pro quo recommend each other on LinkedIn, to avoid potentially violating RPC 7.2(b). Pre-screen the recommendations before they are posted. The "Answers" feature of LinkedIn allows attorneys to respond to questions that are posted generally. If voters constantly give the attorney's response a "best response" vote, LinkedIn designates the attorney as an "Expert," which may violate RPC 7.2(b) as well. III. Advertising and Marketing Legal marketing in a Web 2.0 world is complicated for bar associations for many reasons, but one of the most significant is that legal marketing on the web, even when it’s done in

a traditional format, is completely different from the legal advertising that bar associations are used to regulating. Google’s point-and-click ads for law firms come the closest to traditional advertising, but unlike radio and TV ads, they can be tailored and tweaked easily and frequently. Non-traditional legal advertising, like that found on blogs, Facebook, LinkedIn, and Twitter is even more complicated.

A. Legal Blogs The consensus in the online literature discussing social media for lawyers is that your professional/legal blog can be viewed as an extension of your website unless the information posted there is strictly for educational or informational purposes. And it’s generally accepted that a lawyer’s website is a form of advertising. WSBA Advisory Opinion 1903 says: “[t]he contents of a Website posted by a lawyer or law firm must comply with RPC 7.1. The lawyer must maintain a copy of the Web site and changes made to that site pursuant to RPC 7.2.” In the case of a blog, this seems quite complicated to “copy” a blog and copy all the changes made to a blog. But to be safe, do it. Just print to PDF and you can save everything electronically. Online technology blogs for lawyers also recommend that you learn how to create professional Facebook privacy settings. And while you’re on Facebook, don’t do anything unethical, like having someone else send a Facebook friend request to a party during litigation, or change your regional network to spy on a party or witness. Just subpoena the party’s social networking pages instead.

B. Twitter Only two of the participants on the call—myself and one other woman—tweeted the hashtag during the CLE, so my guess is that the legal ethics of Twitter is not yet that relevant for most of the lawyers on the call. That said, I was able to ask a question that has been bugging me for a while and got a good answer. Through Twitter advanced search, one can subscribe to the RSS feeds for searches like: people who tweet about ‘attorney’ within 100 miles of Minneapolis. So I asked, what happens if someone in Minneapolis (a total stranger) tweets “Anyone know a good entertainment lawyer?” and I get notified of this random tweet because I have the above RSS feed. Can I respond if I am an entertainment lawyer? Can I recommend a colleague who is a great entertainment lawyer? The CLE speakers’ response was (1) if you can email the person and thus take the conversation out of real-time contact, do so; and (2) if you can’t email the person, then tweet them with a link to your website, or the website of your colleague. That puts the ball in their court to make the contact and follow up on the recommendation, and is less invasive than engaging them on Twitter itself.

The Washington Rules of Professional Conduct that govern a lawyer advertising are:

Rule 7.1 Rule 7.2 Rule 7.3 Rule 7.4 Rule 7.5 Rule 7.6

None of the Washington RPCs directly reference the Internet, blogs or social media. Yet. The ABA’s Commission on Ethics 20/20 has proposed several changes to the ABA Model Rules which reference the Internet, how lawyers communicate with potential clients and the use of the Internet for advertising. C. Google Buzz Google launched the new social media platform Google Buzz on February 9, 2010. Initially Buzz included an auto-follow feature that created Buzz connections from the most frequent email and chat contacts of Gmail users, displaying such contacts to other connections and on their Google profile. That public exposure would breach client confidentiality for lawyers that use Gmail. Google then made some changes due to public outcry about privacy concerns. Lawyers who use Gmail or Google Buzz should monitor their settings, as well as developments with Buzz, to make certain that they do not inadvertently compromise client confidentiality. Buzz also has a “geo-tagging” feature for posts made from a smart phone. It pinpoints the location on Google Maps of a poster at the time of the post. Buzz contains a “nearby” feature that searches for posts previously made in the area. Geo-tagging a lawyer’s whereabouts might inadvertently reveal a client confidence. For example, publication of a corporate lawyer’s location at a restaurant across the street from a public company out of town might prematurely tip off confidential merger negotiations. Web 2.0 has leveled the playing field for solo and small firm lawyers. Re-read the RPCs and especially the proposed changes to the ABA Model Rules by the Commission on Ethics 20/20.

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Law Office 2.0 Ethics

Jennifer Willner

HALVORSON SAUNDERS & WILLNER PLLC

Seattle  ● Bellingham

jwillner@hsw‐law.com

Halvorson Saunders & Willner PLLC

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Law Office 2.0:  Mobile, Connected & Paperless

The second generation of the World Wide Web

Web 2.0 

Wide Web

Sharing information online

Users interact and collaborate in a social media dialogueg

User‐generated content in a virtual community

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Web 2.0 = The Social Web

Web 2.0

Examples of Web 2.0 include:

• Social networking sites

• Blogs

• Wikis

• Video sharing sites• Video sharing sites

• Web applications

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I liked this image too…

Confidentiality  RPC 1.6

A fundamental principle in the client‐lawyer relationship is that, in the absence of the client's informed consent, the lawyer must not reveal information relating to theinformation relating to the representation.

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Social Networking

• Twitter / LinkedIn Status updates/ p

• Importing contacts in Facebook

• Websites requiring access to informationinformation

Smartphones

• Storage of information

Potential Breaches of Confidentiality

Storage of information

• Contacts

• Emails

Portable storage media

• Password protect

Tablets / Netbooks

• Password protect

My horrible experience

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Conflicts of Interest  RPC 1.7

Loyalty and independent judgment y y p j gare essential elements in the lawyer's relationship to a client.  Concurrent conflicts of interest can arise from the lawyer's responsibilities to another client aresponsibilities to another client, a former client or a third person or from the lawyer's own interests.

Conflicts of Interest

• Casual advice can create potential client 

• Soliciting information can create potential client

• Expressing opinion on• Expressing opinion on public issue conflict with current client

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A lawyer shall not make a false or misleading i ti b t th l th

Information About Legal Services

communication about the lawyer or the lawyer's services.   RPC 7.1

This Rule governs all communications about a lawyer's services, including advertising permitted by Rule 7.2.  Whatever means are p yused to make known a lawyer's services, statements about them must be truthful.

Comment 1 to RPC 7.1

Subject to the requirements of Rules 7.1 and 7 3 l d ti i th h

Advertising RPC 7.2

7.3, a lawyer may advertise services through written, recorded or electronic communication, including public media.

A lawyer shall not give anything of value to aA lawyer shall not give anything of value to a person for recommending the lawyer's services…

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AdvertisingABA Ethics

A lawyer may pay others for generating client leads, such as Internet‐based client leads, as long as the person does not recommend the lawyer and any payment is consistent withlawyer and any payment is consistent with Rule 1.5(e) (division of fees) and Rule 5.4 (professional independence of the lawyer). 

A lawyer shall not directly or through a third

Direct Contact with ProspectiveClients RPC 7.3

A lawyer shall not directly or through a third person, by in‐person, live telephone, or real‐time electronic contact solicit professional employment from a prospective client when a significant motive for the lawyer's doing so is 

'the lawyer's pecuniary gain. . . 

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Direct Contact with Prospective ClientsABA Ethics

A lawyer’s communication typically does not constitute a solicitation if it is directed to the general public, such as through a billboard, an Internet banner advertisement, a website or a television commercial, or if it is in response to a request for information or is automatically generated in response to Internet searches.

Fields of Practice  RPC 7.4

“A lawyer shall not state or imply that a lawyer is a specialist in a particular field of law…”

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LinkedIn

• Professional Experience sectionp

• Recommendations feature

• Answers feature may inadvertently result in “expert” designationresult in  expert  designation

• Communication about services

Websites

• Communication with potential clients

• Confidentiality issues

• Conflict of interest issues

• Adding a blog

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Blogging

• Extension of website

Blogging

• Follow advertising rules

• Don’t talk about cases

• Avoid direct solicitation

• Be truthful

• One‐way vs. allowing comments 

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The Cloud

Storage issues

• Where’s your data?

• Security

• Subpoena

Backup data in cloud

Questions?