Attorneys Use

of Social Media
Ethical Implications
Presented by:

Ed Lanza
The Lanza Firm, LLC
August 2016

The Tangled Web We Weave

Use of Social Media Exploding

76% of adult internet users now say they use a social
networking site.
62% of all adults use social networking sites.
85% of law firms maintain an online presence.
Lawyers use their online profiles for a number of
reasons:

Career development and networking (71%)

Client development (41%)
Education and current awareness (45%)
Case investigation (24%)

LinkedIn is the most popular platform for lawyers (57%)

The Promise of Social Media

Lawyers can benefit significantly:
Networking / making connections
Business Development & Marketing
Showcase expertise / Enhance reputation
Share information with colleagues
Learn about new developments in the law
Public education
Potential litigation tool
Recruitment tool (screening)

The Perils of Social Media

A trap for the uninitiated:
Diminish reputation
Exposure to scams
Rely on bad information
Little privacy / less confidentiality
Unintended consequences
What you dont know can hurt you
Ethical pitfalls

Are Luddites Incompetent?

Rule 1.1 Competence
Rules require legal knowledge, skill,
thoroughness and preparation
Can a 21st century lawyer claim competence
if shes not online?
Does over-reliance on the Internet
compromise our competence?
Modern lawyers need to be good at many
things.

Lawyering at the Speed of Light

Rules 1.3 & 1.4 - Diligence &
Communication
E-tools allow lawyers to do more in less time
(the curse of the smartphone)
Clients have come to expect more
communication at all times
Social media is tailor-made for interaction in
real time (twitter, chat, texting, skype)
Avoid snap judgments!

Its Just Between Us Friends ;-)

Rule 1.6 Confidentiality
Lawyers have a duty of confidentiality that
may conflict with social media activities
Dont discuss a case without the clients
consent
Electronic communications may be subject to
discovery and disclosure
The lawyers duty to safeguard client
confidential data should trump social
networking
A lawyer may reveal confidential information
to defend herself, but not to respond to a

Confidentiality (continued)
Clients can waive confidentiality by using
social media (blog, chat, Facebook, etc.)
The lawyer must advise the client of the
dangers of social media
Keeping client secrets in the age of WikiLeaks
is a challenge
Lawyers must discuss with clients the
potential of security breaches (hacking,
cyber-spying, etc.)

You Had Me at Hello! (match.com)

Rules 1.8, 1.13, 1.16, 1.18 The
Attorney-Client Relationship
An online consultation may create a
relationship (simple Q&A)
The creation of an attorney-client
relationship comes with a host of legal duties
and responsibilities
On a blog use a disclaimer this is not legal
advice; seek counsel
For government lawyers views are my
own

Friending the Enemy

Rule 4 Dealings with Third Persons
No lying or deceit
You must not communicate with a 3rd person
who is represented by counsel (no
friending)
You cant use Facebook to contact an
opposing party or violate a 3rd persons right
in order to get evidence
It is OK to access information that a 3rd party
posts as public, even to use as evidence or
for impeachment
Lawyer may communicate with

Handbook on Website Research

Social Media Posts as Evidence

A lawyer may use information ethically obtained from a
social media site, provided that:
Information is material and relevant
The public portion of the site indicate that there may be
relevant evidence in the private section
The request to access the information is not too broad
Accessing private information is not needlessly intrusive

The case of the belly dancing wife

The Simpson Trial Syndrome

Rule 3.6 Trial Publicity
No extrajudicial statements that are
prejudicial to a proceeding
A lawyer can mitigate the effects of adverse
trial publicity
Stick to neutral facts that are of record
This rule may interfere with a lawyers
marketing efforts
Government lawyers handle matters of public
interest

Multi-Jurisdictional Practice Online

Rule 5.5 Unauthorized Practice of
Law
You cannot practice in a state unless you
are admitted
The web knows no jurisdictional boundaries
Temporary services (with admitted lawyer)
and Pro Hac Vice admissions
The Virtual Office

Advertising
Rule 7.2 Ad restrictions
Television-era rules for the Internet age
Blogging as a marketing tool
Rule 7.3 Direct contact with client
Solicitation by real-time electronic communication
Jurisdictions are split on whether chat or IM are
objectionable

Free Speech Is Not Free

Rule 8.2 Statements on Judges
Officers of the Court cannot criticize the
Court freely
Sean Conway, Esq.: Evil, Unfair Witch
No First Amendment protection

Truth, the Whole Truth and Nothing

But
Rule 3.3 Candor Toward the Tribunal
No false statements and no false evidence to the tribunal
Disclose criminal or fraudulent conduct by client
Rule 4.1 Truthfulness of Statements to Others
No false statements of material fact or law to third parties
Disclose material facts to third party to avoid crime or fraud
(see 1.6)
Rule 8.4 Misconduct
It is professional misconduct for a lawyer to engage in conduct
involving dishonesty, fraud, deceit or misrepresentation.

Miranda Warnings
You have the right to remain silent.
Anything you say can and will be used
against you.
You have the right to talk to a lawyer.
You can stop talking at any time.
Do you understand these rights?
Do you still want to make a statement?

Heads in the Cloud

Privilege & Confidentiality in the paperless
office
Where are the clients records and whos the
custodian?
The Cloud is cost-effective, but proper
security is costly
Proper security includes encryption, firewalls,
redundancies, etc.

Questions?

Ed Lanza
(717) 576-2696 | ed@lanzafirm.com

August 2016