Social Media, Lawyer Liability and Ethics By Jett Hanna It should now be a matter of professional competence for attorneys

to take the time to investigate social networking sites. Griffin v. Maryland, Case No. 1132, Court of Special Appeals Maryland, May 27, 2010, slip op. at 14 quoting Sharon Nelson et al., The Legal Implications of Social Networking, 22 REGENT U. L .REV. 1, at 13 (2009/2010), online at http://mdcourts.gov/opinions/cosa/2010/1132s08.pdf. An opinion reversing this case is discussed in the text of the article below. The import of the statement above is actually enhanced by the reversing decision. (T)he 2011 American Bar Association (ABA) Technology Survey Reportrecorded that 62%...of individual attorneys say they have LinkedIn profiles. Large legal firms need to get smarter about social media to compete, TechJournal, December 23, 2011, http://www.techjournalsouth.com/tag/legal-services-use-of-social-media/. Social media affects the legal profession in two broad ways. Lawyers are using social media to communication with others, both personally and professionally. The rest of society is as well, which makes social media an important source of evidence in more and more cases. This article outlines selected ethical and malpractice issues that may arise from how lawyers utilize social media in both the business of law and in representation of clients. The paper will look first at social media as evidence generated by clients and adversaries, and then as generated by lawyers. Suggestions will be provided on how best to confront the ethical and malpractice issues. As a lawyer for a legal malpractice insurance carrier, I wish to avoid implications that any of my suggestions constitute the standard of care. Even weak disciplinary suits and malpractice claims can cost lawyers money and time, and some of my suggestions may help to avoid weak allegations. Definition and Characteristics of Social Media Focusing too much on social media as a unique form of communication is perhaps unwarranted. Merriam Webster defines "social media" as "forms of electronic communication (as Web sites for social networking and microblogging) through which users create online communities to share information, http://www.merriamideas, personal messages, and other content" webster.com/dictionary/social%20media. Key elements of the definition are: 1. Electronic communication 2. Formation of online communities 3. Sharing of content Exactly where social media begins and other types of communication end is not clear. For example, an email subscription list could be thought of as social media, since multiple parties see all communication to the list. Facebook has a private messaging feature that is much more like private

email than are posts on a person's wall. Blogs may or may not invite social interaction that creates a community. The aspects of social media that may be of concern may not depend on whether the communication is only a one way broadcast or directed at only to one person. Social media storage and availability can share technical characteristics that are very similar to other types of electronic documents. In short, a broad knowledge of electronic documents and communication is important in understanding social media issues. Social media shares the characteristics of "cocktail party conversation" that has been analyzed repeatedly by legal ethics experts over the years. See Hayes Hunt, 10 Things a Lawyer Should Never Say in a Social Setting - Cocktail Party Chatter, From the Sidebar (June 6, 2011), http://www.fromthesidebar.com/attorney-client-privilege/cocktail-party-chatter/. Unlike cocktail party conversation, however, the content of social media conversation can be proven by methods unavailable for spoken conversations. The potential content of social media communications is limitless, and could conceivably affect any type of case. A recent study by the American Academy of Matrimonial Lawyers indicated that 1 in 5 divorces are caused by Facebook. Cid Carver, Facebook Divorce: 20% of Divorces Fueled By Facebook, Socialnomics (March 3, 2011) http://www.socialnomics.net/2011/03/03/1-in-5-divorces-fueled-byfacebook/. Social media evidence has been used in a number of employment practices cases. Carrie Pixler, Social Media Series: Using Social Media As Evidence In Lawsuits, AzBusinessMagazine (May 3, 2011) http://aznow.biz/workforce/social-media-evidence-lawsuits. Social media is also being used by the defense in bodily injury cases to demonstrate that plaintiff's claims are false or exaggerated. Brian Gow, Courts Allowing Private Facebook Posts As Evidence in Lawsuits, Insurance Journal (January 27, 2011), http://www.insurancejournal.com/news/national/2011/01/27/182240.htm. Because access to social media involves use of passwords, many people have a false sense of privacy with respect to social media conversations. This sense of security has been amplified by the apparent protection of the Stored Communications Act (SCA), 18 U.S.C. 2701 to 2712. In Crispin v. Audigier, 717 F. Supp.2d 965 (C.D. CA 2010), a federal district court held that Facebook and My Space were prohibited from revealing, in response to a civil subpoena, content of communications unavailable to the general public. 18 USC 2702(a). It should be noted that exceptions exist for certain law enforcement and public emergency purposes, so considerations in criminal matters will be different. 18 USC 2702(b). In the Crispin case, the court remanded the case to the magistrate to determine if the content sought was indeed unavailable to the general public. Many types of social media permit a user to leave certain information open for the public to see. While electronic communication service providers can only reveal the content of social media generally available to the public, they can reveal non-content information in response to civil subpoenas. Non-content information may assist the discovery of hidden or deleted evidence. The SCA does not prohibit the persons involved in communications from revealing the content of communications, either. As a result, the content of the communications can be discovered if the information sought meets general standards for discovery of relevant evidence in civil matters. Indeed, some courts have even required litigants to reveal their passwords to the opposition to facilitate discovery. See Largent v. Reed, No. 2009-1823 (Pa Ct. of Common Pleas Nov. 8, 2011), http://www.theemployerhandbook.com/Largent.pdf. Judge Walsh argues that (only) the uninitiated or the foolish could believe that Facebook is an online lockbox of secrets. One judge required a party friend the judge in order to facilitate discover. Eric Goldman, Judge Offers to Facebook 'Friend'

Witnesses in Order to Resolve Discovery Dispute -- Barnes v. CUS Nashville, Technology & Marketing Law Blog, http://blog.ericgoldman.org/archives/2010/06/judge_offers_to.htm. Hiding and Destroying Social Media Evidence: Lester v. Allied Concrete Beginning with the Zubulake case, one of the major issues in electronic discovery has been failure to produce responsive files and destruction of potentially responsive files. See generally Dan Willoughby, et al, Sanctions for E-Discovery Violations: By the Numbers, 60 Duke Law Journal 789 (2010), http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1487&context=dlj. This past year, sanctions were entered against a lawyer and a client for hiding and destroying social media evidence in one highly publicized case, Lester v. Allied Concrete Company, http://www.ediscoverylaw.com/uploads/file/Lester%20v%20Allied%20Concrete%20090111.pdf (Lester I) and http://www.ediscoverylaw.com/uploads/file/Lester%20v%20Allied%20Concrete%20Final%20Order.p df (Lester II). An extended discussion of the case follows, both because of the lessons it can teach about social media evidence and as an example of the potential liability faced by lawyers who deal with social media evidence. In 2007, Jessica Lester and her husband, Isaiah Lester, were involved in a car accident with William Sprouse, a driver for Allied Concrete. Jessica was killed, and Isaiah suffered injuries. Mr. Lester and Jessicas parents, the Scotts, filed suit against Sprouse and Allied Concrete. Matthew Murray represented Mr. Lester, and David Tafuri of Patton Boggs represented Allied and Sprouse. During the course of discovery, Tafuri gained access to Lesters Facebook page via Facebook message. Lester I, slip op. at 10. Tafuri got a picture of Mr. Lester in the company of other young adults with a beer in hand, wearing a t-shirt saying I (heart) Hot Moms. Tafuri then requested discovery from Mr. Lesters Facebook account. How did Tafuri get the picture? The courts opinion isnt quite clear. Obtaining access to the Facebook page by sending or receiving a message is not possible. One interpretation is that Mr. Lester made Tafuri a friend, which doesnt seem to fit later facts. Someone may have either sent the picture to Tafuri or alerted Tafuri to a picture relating to Mr. Lester that wasnt protected from Tafuri by security settings. In any event, Murray stated in court that Tafuri had hacked his clients website. The judge sanctioned Murray for making this apparently unfounded accusation. This initial sanction points out a key aspect of social media: that private, restricted content is protected by federal law. Hacking, in this case unauthorized viewing of private information without authority, would have been a federal crime. The judge most likely sanctioned Murray for alleging Tafuri committed a crime without having evidence of such. When investigating social media, it is important for lawyers not to obtain access to social media by surreptitious means, and not to accuse other lawyers of having done so without good cause. Tafuris request for production dated March 25, 2009, asked for screen print copies on the day this request is signed of all of Mr. Lesters Facebook pages, and asked for information about the people in the picture. Murrays paralegal realized that the picture must have come from Lesters Facebook page.

Murrays paralegal, at his direction, told Lester that some other pictures should be deleted and that Lester should clean up his Facebook and My Space pages. Upon instruction from Murray, Lester deactivated his Facebook page on April 14th. The response to the request for production stated that I do not have a Facebook page on the day this is signed, April 15, 2009. Tafuri understandably objected, and filed a motion to compel. Murray decided that screen print should be made and produced after Lester reactivated his Facebook. Lester reactivated his Facebook account, but deleted 16 pictures from his Facebook page. Murray claims that he did not know that any photos had been deleted, but the court found that deletion was consistent with the earlier instructions from the paralegal to Lester to clean up his accounts. Murray produced the screen prints from Lesters altered Facebook account. In December 2009, Lester testified in deposition that he never deactivated or took down his Facebook page. Tafuri requested additional discovery from Lester, his ip log from Facebook. In August 2010, Tafuri hired Joshua Scotson to analyze the ip logs. Scotson and an expert hired by Murray came to the same conclusion: Lester had deleted 16 pictures from his Facebook account that were not in the discovery. The expert was able to recover 15 of the 16 pictures, but one was no longer available. How did the experts come to this conclusion? The ip log kept by Facebook includes information on which internet address connected to Facebook (the ip address), the user name of the account that took action, the action taken, and the time of execution. Facebook Law Enforcement Guidelines, as published by the Electronic Frontier Foundation. https://www.eff.org/files/filenode/social_network/Facebook2010_SN_LEG-DOJ.PDF. See also Peter Coons, eDiscovery in Social Media Controversial Facebook Photo Sparks Debate, http://www.d4discovery.com/2011/12/ediscovery-in-social-media-controversial-facebook-photosparks-debate/. This information can be provided under the SCA because it is not content related. Following revelation of this turn of events to the court, the judge requested attorney client correspondence and emails between Murrays office and Lester and took the issue of possible sanctions against Murray and Lester under advisement. Prior to trial, Tafuri requested an instruction to the jury that Lester had destroyed evidence, and that an adverse conclusion could be drawn. The adverse inference instruction was granted. Despite the instruction, the jury returned a verdict awarding $2,350,000 for Mr. Lesters injuries, $6,227,000 to Mr. Lester as a beneficiary of Jessica Lesters estate, and $1,000,000 to each of Jessicas parents as beneficiaries of her estate. After trial, email detailing the paralegals instruction to Lester to clean up was produced late by Murrays office. Allied and Sprouse sought a new trial. Ultimately, the judge reduced the award to Mr. Lester as beneficiary of Jessica Lesters estate to $2,100,000, but not because of sanctionable conduct by either Mr. Lester or Murray. A new trial was not granted, but the judge assessed sanctions in the amount of $522,000 against Murray and $180,000 against Lester. Murray has resigned from the bar rather than face bar discipline. Lester II. Appeals from both sides are pending. What are the lessons from Lester v. Allied Concrete? 1. Lawyers should advise clients on how to avoid spoliation of social media evidence early in the representation. Avoid general instructions to clean up social media sites unless evidence can be properly preserved.

2. Retaining a copy of the content may not be sufficient to preserve evidence if the social media service keeps logs of activity. See How Useful is Facebooks Download Your Information Feature in EDiscovery, E-Discovery Law Alert, http://www.ediscoverylawalert.com/2011/05/articles/technologydevelopments-issues/how-useful-is-facebooks-download-your-information-feature-in-ediscovery/. Ironically, the best strategy in some cases may be to disable the service if the service has the ability to restore it just as it was previously. This has the simultaneous effect of thwarting the simplest attempts by opponents to investigate the content of a clients social media. 3. Sanction issues create significant conflict of interest issues. In Lester, the lawyer was in the position of arguing that his clients conduct in destroying evidence was not based on the lawyers actions. It appears on the face of the record that Mr. Lester did not have independent counsel to argue that he merely followed Murrays directions, though perhaps he consented to the conflict created by sanctions issues and chose not to hire other counsel. Even so, a strong argument could be made that the conflict here was not consentable, especially because of the size of the sanction award at stake. 4. Most legal malpractice insurance policies exclude coverage for sanctions against the attorney. It should be noted, however, that those policies do not explicitly exclude a claim by a client that they were injured by a lawyers sanctionable conduct. 5. Perhaps the most compelling lesson of Lester may be that the impact of social media evidence is not necessarily compelling. Despite the adverse inference instruction in Lester and the availability of the hot moms t-shirt picture, the jury did not seem to be particularly put off by that evidence. Had the lawyer and client not tried to mislead the defense, it does not appear that the case would have been jeopardized in any serious way. Improper Use of Social Media Evidence Since social media evidence is often discoverable and could help a client's case, failure of a lawyer to look for social media evidence in a reasonable manner could be the basis of a legal malpractice claim. The client would have to show that discovery and presentation of the evidence would have made a difference in the outcome of the case. See Frullo v. Landenburger, 61 Mass. App. Ct. 814 (2004)(lawyer failed to conduct discovery, but plaintiff did not show that failure damaged the client.) While no reported cases have imposed liability on a lawyer for failure to investigate social media, several cases demonstrate that such a duty may exist. In Johnson v. McCullough, 306 S.W.3d 551 (Mo. 2010), the trial court granted a mistrial after a defense verdict in a medical malpractice case. The mistrial was granted because a juror had failed to reveal that he had been a litigant in three other cases in response to questions posed during voir dire. The Supreme Court reversed and reinstated the defense verdict, finding that information about the juror's prior cases was available through an online database (Case.net, https://www.courts.mo.gov/casenet/base/welcome.do) and that the plaintiff's lawyers should have searched for that information before trial. In several cases, courts have chastised lawyers for failing to use an Internet search to obtain information about parties who cannot be located. See Munster v. Groce, 829 N.E.2d 52 (Ind. App. 2005)(court noted the lack of an Internet search in attempts to serve a party); DuBois v. Butler ex. rel. Butler, 901 So.2d 1029 (Fla. App. 2005)(criticizing attempts to find defendant, court said "advances in modern technology and the widespread use of the Internet have sent the investigative technique of a call to directory assistance the way of the horse and buggy and

the eight track stereo"); Weatherly v. Optimum Asset Management, 928 So.2d 118 (La. App. 2005)(judge's opinion that due process rights were violated in a tax sale after judge found party through an Internet search). The distance to a finding that a lawyer negligently failed to search social media for evidence is a short one. Failure to authenticate social media evidence could also be the basis of a claim. In Griffin v. State, 419 Md. 343 (2011), a law enforcement official testified for the prosecution that a print out from a My Space page was authentic. The content of the page did not purport to be that of the defendant, but rather that of another party who supposedly intimidated witnesses at the behest of the defendant. The party had testified in the trial, but was not questioned about the authenticity of her supposed statements on the My Space page. On appeal, the appellate court overturned the conviction of the defendant because the law enforcement official testifying about the My Space prints had no personal knowledge and gave no credible testimony as to who wrote the critical statement or when it was written. The mere fact that the My Space account was registered to the third party's email address did not prove that the third party composed and posted the statement. Additional Considerations for Lawyers: Ethics and Malpractice Attention is now turned to ethics and the associated malpractice claims that may arise from lawyer use of social media. Lawyers must consider how social media participation may result in evidence in legal malpractice cases, and the cases posited to this point show the types of issues that could arise in the course of legal malpractice case. Lawyers have the additional complication not faced by most clients. Ethical rules have a substantial impact on how they should use social media. As a general rule, despite statements in the ethical rules that the rules do not set standards for liability, e.g ABA Model Rules, Preamble, Paragraph 20, ethical rules play two key roles in legal malpractice litigation. First, experts opine on the standard of care, and frequently cite ethical rules as to support their opinions. Second, in legal malpractice cases, unlike disciplinary cases, the entire attorney client relationship is examined. Social media activity may paint an ugly picture, especially if the conduct is also unethical. The social media activity itself may not cause harm to a client, but unethical conduct may lead a jury to decide fact issues adversely to a lawyer. Ethics and Social Media: Forming Attorney Client Relationships To the extent that social media involves two way communication, a possibility exists that a lawyer will form an attorney client relationship through social media. Lawyers should avoid creating an impression that they are providing legal services when they do not intend to do so. Lawyers may give legal information to members of the public, but such information is transformed into legal advice if the lawyer applies analysis of the law to the particular facts of an individuals situation. If an individual reasonably believes that a lawyer has undertaken representation, the lawyer can be liable for negligence in providing the legal services. See Parker v. Carnahan, 772 S.W.2d 151, 157 (Tex. App.Texarkana 1989, writ denied) Ethics and social media: Confidentiality Confidential information as defined by the disciplinary rule can include public information. ABA Model Rule 1.6(a) defines confidential information as "information relating to representation of a client." A lawyer cannot reveal such information unless the 1) the client gives informed consent

2) authorization for disclosure can be implied from the nature of the representation contemplated, or 3) an exception under rule 1.6(b) applies. Rule 1.6(b) establishes exceptions allowing a lawyer to disclose confidential information when disclosure is necessary 1) to prevent personal injury or death, 2) to prevent a crime or fraud, or to mitigate or rectify financial injury if the client has used the lawyer's services in furtherance of the crime or fraud, 3) to consult with another lawyer about the lawyer's ethical duties 4) to respond to allegations from the client, a prosecutor or disciplinary panel, 5) to comply with other law or court orders. Rule 1.9(c) continues the prohibition on revealing matters relating to representation of a client after representation, with a caveat. The lawyer may use the confidential information after representation if "the information has become generally known." Rule 1.9(c)(1). She cannot, however, reveal the information except as permitted by Rule 1.6. Lawyers often fail to appreciate the implications of this broad definition of confidential information and the restrictions on using or revealing the information. A recent case illustrates the potential problems in a social media context. In the case of In Re Hunter, VSB Docket Number 11-032-084097 http://op.bna.com/mopc.nsf/id/kswn-8nfngf/$File/11-084907.pdf, a Virginia (Nov. 8, 2011), disciplinary committee disciplined a lawyer for discussing client matters on his blog. Aside from the advertising compliance issues, which will be discussed below, the court found that Mr. Hunter had posted information what happened to two clients in court, and that the information posted was both embarrassing and detrimental. Mr. Hunter revealed in his blog that one client, identified by name, had a positive test for drug use. Mr. Hunters post states that the prosecution used this evidence in court. Still, Mr. Hunter's post says that he successfully defended his client, arguing that the prosecution failed to have an expert interpret the drug test, did not show when any drug use might have occurred based on the test, and failed to negate the possibility of a false positive. Hunter Lipton, PC, Halifax Woman Not Guilty of Possession of Cocaine, http://hunterlipton.com/index.php/news/details/halifax-woman-not-guilty-of-possession-ofcocaine/. Another report of the disciplinary hearing, however, indicates that the drug test was not discussed in court, and was not mentioned in the judges decision form. Jeff Day, Panel Admonishes Criminal Defense Attorney For Blog Naming Clients, Omitting Disclaimer, ABA/BNA Manual of Professional Responsibility reported on Bloomberg BNA, November 23, 2011, http://www.bna.com/panel-admonishes-criminal-n12884904453/. Mr. Hunter also posted about another client who was acquitted of assault on a fellow teacher. http://hunterlipton.com/index.php/news/details/henrico-teacher-not-guilty-of-assault/ In neither case had the clients consented to discussion of their matters on the blog. The disciplinary board found that the fact that both of these posts relayed what happened at trial did not invoke a "publicly relayed and generally known" exception to confidentiality restrictions under Virginia law that would have permitted Mr. Hunter to discuss the matters on his blog without client consent. In re Hunter, slip op at 3-4. Under Hunter, if revelation of information related to representation of a client might embarrass a client or might be detrimental to them in some way, discipline is appropriate. What is less clear from the opinion is exactly when confidential information is publicly relayed and generally known. Hunter

reportedly told Bloomberg BNA that all of the information he revealed in the blog was publicly stated in open court. Bloomberg BNA reports that the Virginia State Bar Legal Ethics Counsel James McCauley said that even if the matters in Mr. Hunters blogs had been stated in open court, a breach of confidentiality occurred in the blog. Interestingly, another matter on appeal in Virginia seems to have come to a different conclusion about matters revealed in court. In Turner v. Commonwealth, No. 1809101 (Va. App. July 26, 2011), http://www.courts.state.va.us/opinions/opncavwp/1809101.pdf, the court held that a lawyer could testified against a former client as to what a witness said adverse to the client in a previous proceeding. A key witness in a criminal trial failed to recall his statement to police officers, even after being provided with a uncertified transcript of the previous hearing. The witness had previously testified that the defendant had seen a shooting and identified the shooter. The former lawyer for the defendant appeared voluntarily to testify that that the transcript was accurate. Finding that the lawyer testified about information that was generally known and had been publicly relayed, the appellate court affirmed the conviction of the defendant former client. Both the case law and exact wording of disciplinary rules will vary from state to state, but universally confidential information is more than just information that might fall within the attorney client privilege. There is a continuum of confidential information, with edges that can be ill defined and vary with state law: 1. Attorney client privileged information; 2. Other privileged information; 3. Information learned in the course of representation that is not public, but not subject to privilege; 4. Information stated publicly that is not recorded; 5. Information stated publicly and recorded in private, but not privileged, documents; 6. Information stated publicly and recorded in public records; 7. Information that is not widely known, but is public (can be 4-6 above); 8. Information widely known. Consider the following scenario a lawyer recently conveyed to me. An opposing lawyer came home after a long day at the office, and complained on Facebook that a client was not cooperating in discovery and there would be hearing in the morning. The opposing lawyer was a friend with a paralegal in the lawyers office, and the Facebook entry alerted them to the problems on the other side. Even postings that do not name the client may result in harm to a client in the right circumstances. From a practical standpoint, the best course of actions for attorneys is not to talk about client matters publicly, even if names are omitted, regardless of whether the talk is at a cocktail party, in a blog or on Facebook. This is not simply ethical practice, it is good business. The possibility that a client will be offended by a lawyer talking about their matter is avoided. Ethics and Social Media: Advertising Many articles and seminars have discussed the importance of social media in advertising legal services. Social media as advertising is subject to ethical rules just as other forms of more traditional advertising by law firms.

The ABA Model Rules regarding advertising clearly apply to social media. Lawyers should keep in mind that the ABA Commission on Ethics 20/20 has proposed some modifications to the advertising rules and other rules affected by use of technology in the Initial Draft Proposals on Lawyers Use of Technology and Client Development (June 29, 2011), http://www.americanbar.org/content/dam/aba/administrative/ethics_2020/20110629ethics202techn ologyclientdevelopmentinitialresolutionsandreport.authcheckdam.pdf. Rule 7.1 prohibits false and misleading communications about lawyer services, something that could easily occur in social media. Rule 7.2 allows advertising, but prohibits giving anything of value to a person recommending the lawyers services, with a number of exceptions that permit a broad range of advertising. Rule 7.3 prohibits direct real time solicitation of clients in most cases. The words Advertising Material must appear on an envelope, and at the beginning and end of recorded or electronic solicitations. Rule 7.3 raises a couple of social media issues: what is real time solicitation and what is advertising on other communications? Posting the Advertising Material disclaimer on Twitter feeds could consume valuable space. Rule 7.4 allows an attorney to state that they practice in a particular area of law, but cannot state or imply that they are certified unless they are certified by a particular organization which is disclosed in the communication. While there are certainly issues that can arise in social media under the ABA Rules, the number of state variations on the ABA advertising rules is mind boggling, filling a 125 page document. See Differences Between State Advertising and Solicitation Rules and the ABA Model Rules of Professional Conduct (Nov. 15, 2011), http://www.americanbar.org/content/dam/aba/migrated/cpr/professionalism/state_advertising.auth checkdam.pdf. We will not attempt to analyze all the possibilities, but rather advise lawyers to check with authorities in states where they or their firm practice about rules that may affect social media. One example is worth considering. Texas may have the most voluminous advertising rules and commentary. The basic rules and comments approved by the Supreme Court and a referendum run for 29 pages, Final Changes and Comments To TDRPC Part VII, http://www.texasbar.com/AM/Template.cfm?Section=Rules_Comments_and_Opinions&Template=/C M/ContentDisplay.cfm&ContentID=11920, and a set of interpretive comments issued by the advertising committee is another 9 pages. Interpretive Comments, http://www.texasbar.com/AM/Template.cfm?Section=Rules_Comments_and_Opinions&Template=/C M/ContentDisplay.cfm&ContentID=13435. In Texas, lawyers are required to submit advertising to the Advertising Review Committee in advance of publication. Landing pages on social media websites such as Facebook, LinkedIn and Twitter that are generally available to the public must be submitted for review. Interpretive Comment 17, C. Social Media Sites. Blogs and status updates are exempt if they are educational or informational in nature. However, lawyers are warned to ensure that such postings do not meet the definition of an advertisement subject to the filing requirements. Interpretive Comment 17, D. Blogs and Status Updates. Among the findings in the Hunter case in Virginia was that Hunters report of his trial successes on his blog was advertising, and that a disclaimer was required. Hunter, slip op. at p. 4-5. The practical advice for lawyers with regards to social media as advertising is that they should avoid making direct solicitations of potential clients through social media. They should also carefully consider whether posts may be construed as advertising under applicable state rules.

Ethics and Social Media: Opposition research A recent opinion by the Philadelphia Bar Association addresses investigation of a witness by looking at their Facebook page. The Philadelphia Bar Association Professional Guidance Committee, Opinion 2009-02 (March 2009), http://www.philadelphiabar.org/WebObjects/PBAReadOnly.woa/Contents/WebServerResources/CMS Resources/Opinion_2009-2.pdf. In the scenario addressed in the opinion, a lawyer wants to ask a third party to send a friend request to the subject of an investigation. In Facebook, certain information may be available only to "friends" of a person. The opinion concluded that the lawyer could not participate in the investigation. The ruling was based on Pennsylvania's equivalents of ABA Model Rules 8.4 (deceit), 4.1 (truthfulness in statements to others) and 5.3 (responsibilities with regard to non-lawyer assistants). It should be noted that Facebook has various levels of security settings, and in other scenarios it is conceivable that Facebook research would be perfectly acceptable. For example, if a person is within the investigators "network," such as in the same city, it is possible that significant personal information will be available depending on the privacy settings of the investigation target. Ethics and Social Media: Judicial activity A number of opinions have raise issues about judges friending lawyers before their court on Facebook. In the first situation, a North Carolina judge was reprimanded for friending a lawyer on Facebook and accessing the website of an opposing lawyer. The judge and one of the lawyers in the case exchanged messages about the case, which the judge revealed to the other lawyer the next day. The judge also referenced a poem he found on the second lawyer's clients website during a hearing. The judge recused himself at the request of the second lawyer. The judge was reprimanded for the ex parte communications and for independent fact gathering. N.C. Judicial Standards Comm., Inquiry No. 08-234 (April 1, 2009). Following the North Carolina opinion, the Florida recently indicated that judges and lawyers should not friend each other on Facebook, though judges can have lawyers as "fans" on a campaign page during judicial elections. The committee was not unanimous, with some members of the committee noting that becoming a friend on Facebook is truly only indicative of contact or acquaintance, rather than true friendship. Florida Judicial Ethics Advisory Committee Opinion 2009-20, http://www.jud6.org/LegalCommunity/LegalPractice/opinions/jeacopinions/2009/2009-20.html. Oklahoma has followed Florida, Oklahoma Judicial Ethics Opinion 2011-3, http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=464147, but other states have not gone so far as to require that lawyers should never friend judges, Kentucky Judicial Ethics Opinion http://courts.ky.gov/NR/rdonlyres/FA22C251-1987-4AD9-999BJE-119 (January 20, 2010). A326794CD62E/0/JE119.pdf, N.Y. Judicial Ethics Advisory Opinion 08-176 (2008) , South Carolina Advisory Committee Opinion 17-2009 . At some point, it is conceivable that Facebook evidence of a friendship between a judge and a lawyer will be used in disqualification motions. Lawyers should seriously consider whether to have judicial friendships through social media.

Conclusion: Social Media Policies The approaches a law firm, or any business, should take to social media should include the development of policies and procedures. The very act of formulating a policy helps a firm and its employees learn about social media. Social media policy and other computer use policies and procedures will overlap. Of particular note for law firms is the need to plan for e-discovery in advance, from all sources. Lawyers and firms should plan for a possible litigation hold well in advance of when the law firm has reason to believe that litigation is likely. As a general matter, two basic philosophies could underlie a social media policy. 1. Prohibit use of social media. This approach becomes less feasible as firms become larger. Since social media has become ubiquitous in many social circles, good talent may be excluded by such a policy, and some employees will ignore it. Still, for smaller firms or firms where the culture of the firm is suited to a ban, such a policy may work. 2. Create guidelines on how to use social media, with an emphasis on education about the issues involved. The problem with this approach is that for a policy to be useful, it must be clear and concise, and social media issues can be quite complicated. Policies that run too long are often ignored, while policies not detailed enough will be misinterpreted. Finding a happy medium should be the goal. Of the law firm social media policies I have reviewed, my current favorite is the one for Faegre Baker Daniels (fka Baker Daniels), available online at The http://www.bakerdstreamingvid.com/publications/Baker_Daniels_Social-Media-Policy.pdf/ policy is a mere two pages, consisting of 14 short points. Here are the basic points, with slight rewording to reflect longer comments made in the original. 1. The Internet is not anonymous, nor does it forget. 2. There is no clear line between your work life and your personal life. Always be honest and respectful in both capacities. 3. Avoid hazardous materials (links to defamatory, harassing or indecent material). 4. Don't promote other brands with our brand. 5. Maintain confidentiality. 6. Don't pad your own stats (make up fake identities to boost apparent traffic to your posts). 7. Always trackback (give credit to original sources). 8. Identify yourself. 9. Do not pat yourself on the back. 10. Do not assess the quality of your work. 11. Do not approve recommendations or testimonials. 12. Do not promote successes. 13. Do not return fire. 14. Do not offer or appear to offer legal advice.