Cynthia Sharp presented on the ethical issues related to attorneys' use of social media. She discussed how social media use by attorneys has grown significantly in recent years. She covered how attorneys can use social media for marketing, as a research tool, and in litigation. However, she noted attorneys must still comply with ethics rules regarding confidentiality, communication, and advertising. Attorneys need competence in technology, clear social media policies for their firms, and must ensure outsourced work complies with ethics rules. The presentation provided practical guidance and examples for attorneys navigating the intersection of technology, ethics and the practice of law.

1. Presented by Cynthia Sharp
• Professional CLE Speaker
• Attorney Business Coach

2. Event Sponsor:
Featuring
Cynthia Sharp
The Sharper Lawyer
TECHNICAL REVOLUTION/
ETHICAL EVOLUTION
ETHICAL EVOLUTION
2
March 17, 2014
@thesharperlawyer

3. Preliminary Thoughts
•I would be really happy if we could cover the following:
•I decided to attend “Social Media” because:
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4. Wake Up To Social Media!
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5. 5 @thesharperlawyer

6. Attorneys Using Social Media
15%
43%
56%
Quadrupled in
2 years!
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7. Attorneys Using Social Media
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Legal Tech Survey Report

8. Attorneys Obtaining Clients
Through Social Media
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Legal Tech Survey Report

9. The Cultureist
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• 2,405,518,376 Worldwide Internet Users
• 78.6% North Americans on Internet
• Over 1 billion Social Network Users
@thesharperlawyer

10. 10
Facebook Friends
Cynthia Sharp
Bruce Steiner Ron Fatoullah
@thesharperlawyer

11. 11
Facebook Friends
Cynthia Sharp
Bruce Steiner Ron Fatoullah
@thesharperlawyer

12. Facts About
•100% of Fortune 500 Companies Have Executives on
Linkedin
•238 Million Members
•Every Second - 2 New Member Joins
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13. 13
1.6 billion
search queries
500 million
tweets
@thesharperlawyer

14. Social Media
Practical Applications
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• Marketing
• Practice Area
• Develop Internal Social Media Policy
• Compliance Procedures
• Criminal Defense
• Civil Litigation
• Litigation/Research Tool
@thesharperlawyer

15. Social Media
•New Case Law
•Interesting Ethical Issues
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16. Digital Immigrant or
Digital Native?
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17. Social Media as a
Marketing Tool
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STRATEGY
BRAND
PROFILE
EXECUTION
@thesharperlawyer

18. Information About Legal Services
•Protected Form of Commercial Speech
•Subject to Rules 7.1 - 7.5
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19. Information About
Legal Services
• Rule 7.1 - Communication Concerning a Lawyer's
ServicesRule 7.2 - AdvertisingRule 7.3 - Direct
Contact with Prospective ClientsRule 7.4 - Com
munication of Fields of Practice and
SpecializationRule 7.5 - Firm Names and
Letterheads
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20. 20 @thesharperlawyer

21. American Bar Association
Formal Opinion 10-457
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22. Free Commercial Speech or
Regulated Attorney Advertising
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23. 23 @thesharperlawyer

24. blawgsearch.justia.com
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25. 25 @thesharperlawyer

26. 26 @thesharperlawyer

27. •Endorsement Feature
•“Specialties” Field
•“Answers” Section
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29. Use Common Sense!
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32. 32 @thesharperlawyer

33. 33 @thesharperlawyer
Jennifer Ellis @JLE_JD Mar 4
My answer to What are the legal restrictions in
compiling a database mined of public social
network profiles? http://qr.ae/t3OpR

34. www.lextweet.com
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35. Research Tool
Write down 3 ways that you
use the internet to research
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36. www.jdsupra.com
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37. Citation Forms Developed
Rittman, S. (Spring 2008). Don’t Use the “R” Word. Retrieved
on January 25, 2011 from www.mo-legal-ethics.org
www.mo-legal-ethics.org
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38. legalonramp.com
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39. Litigation Tool
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40. Mining Information
•Vetting Jurors
•Pretexting (“Friending”)
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42. Internet Research by
Jurors
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43. Discovery
•Warn clients not to discuss their case online
•Standard Applied: Reasonably calculated to lead to
discovery of admissible evidence
•Notice to produce
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44. Technical Revolution -
Ethical Evolution
Ethical Evolution
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45. Confidentiality Notice
This electronic transmission and any attached documents or
other writings are confidential and are for the sole use of the
intended recipient(s) identified above. This message may
contain information that is privileged, confidential or
otherwise protected from disclosure under applicable law. If
the receiver of this information is not the intended recipient,
or the employee, or agent responsible for delivering the
information to the intended recipient, you are hereby notified
that any use, reading, dissemination, distribution, copying or
storage of this information is strictly prohibited. If you have
received this information in error, please notify the sender by
return email and delete the electronic transmission, including
all attachments from your system.
This electronic transmission and any attached documents or
other writings are confidential and are for the sole use of the
intended recipient(s) identified above. This message may
contain information that is privileged, confidential or
otherwise protected from disclosure under applicable law. If
the receiver of this information is not the intended recipient,
or the employee, or agent responsible for delivering the
information to the intended recipient, you are hereby notified
that any use, reading, dissemination, distribution, copying or45 @thesharperlawyer

46. Ethical Evolution
•Terminology
•Competence
•Confidentiality
•Communication
•Duties to Prospective Clients
•Receipt of Erroneously Sent
Document
•Supervision of NonLawyer
Assistants
•Advertising
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47. Terminology
MRPC 1.0 Terminology
(o) Writing or Written
Comment 9 to MRPC 1.0
{Screening}
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48. “To maintain the requisite knowledge and skill, a
lawyer should keep abreast of changes in the law
and its practice, including the benefits and risks
associated with relevant technology, engage in
continuing study and education and comply with
all continuing legal education requirements to
which the lawyer is subject.”
- Comment 6 to MRPC 1.1 (as amended)
Competence
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49. Redaction Issues
Long gone are the days when the attorney duty of confidentiality imposed by Model Rule 1.6
was satisfied by maintaining a fireproof steel locked filing cabinet behind a secured office door.
The technological revolution has taken us beyond the world of desktop computers with a
dedicated server to the stratosphere of cloud computing and the genius of smartphones and
electronic tablets.The portability of our “second brain” results in additional ethical responsibilities
that must not be ignored. Lawyers’ obligations have radically changed in light of the methods by
which confidential client and personal information is now carried and stored.
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50. Data Disaster
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51. Duty of Confidentiality
MRPC 1.6
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52. Communication
“... A lawyer should promptly respond to or
acknowledge client communications.”
- Comment [4] of MRPC 1.4 (as
amended)
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53. Duties to Prospective Clients
“...[a] person becomes a prospective client by
consulting with a lawyer about a client-lawyer
relationship with respect to a matter”.
- Comment 2 to MRPC 1.18 (as
amended)
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54. Does a Communication
Constitute a Consultation?
•Did the lawyer encourage or solicit inquiries about a
proposed representation?
•Did the person encounter any warnings or cautionary
statements that were intended to limit, condition, waive or
disclaim the lawyer’s obligations? Were those warnings or
cautionary statements clear and reasonably understandable?
Did the lawyer act or communicate in a manner that was
contrary to the warnings or cautionary statements?
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55. Receipt of Erroneously
Sent Documents
Lawyer receiving electronically stored information that
he or she knows or reasonably should know was sent
inadvertently must promptly notify the sender of the
mistake (Model Rule 4.4(b))
Duty to notify extends to metadata.
(Comment 2)
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56. Recommended
Metadata Scrubbers
Metadata Assistant:
http://www.payneconsulting.com/products/metadataretail/
iScrub: http://esqinc.com/section/products/2/iscrub.html
Workshare Protect: http://www.workshare.com/products/wsprotect/
Metadact: http://www.litera.com/Products/Metadact%AE.aspx
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57. Do You Secure PDF Files Before
You Transmit?
Suggested Office Policy:
“When there is no
legitimate reason to
transmit an editable
document, we will always
send SECURE PDFs.”
“When there is no
legitimate reason to
transmit an editable
document, we will always
send SECURE PDFs.”
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58. You Cannot Delegate
Ethical Responsibilities
Model Rule 5.3 requires attorneys who outsource
work to non-attorneys to “make reasonable efforts
to ensure that the non-lawyers’ services are provided
in a manner that is compatible with the lawyer’s
professional obligations”.
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59. Attorney Advertising Rules
Lawyers may pay Internet-based lead generators for
generating client leads, as long as the lead generator does
not “recommend” the lawyer. (MRPC 7.2, Comment 5)
Only a “target communication initiated by the lawyer”
directed to a “specific person” that “offers to provide”
legal services is a solicitation. Communications to the
general public, including Internet banners, are not
solicitations. (MRPC 7.3)
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60. “A lawyer shall act with reasonable diligence and
promptness in representing a client.”
Comment 2 - “A lawyer's work load must be
controlled so that each matter can be handled
competently.”
Rule 1.3
60
Diligence
@thesharperlawyer

61. www.evernote.com
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62. www.pomodorotechnique.com
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63. Law Firm Social Media
Policy
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64. Online or In Line
•Keep client confidences
•Avoid appearance of establishing client-
attorney relationship
•Be polite
•Don’t fight
•Don’t bad mouth law firm, colleagues or
judges.
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65. Moving Forward
•Did you learn anything new today?
•Did you gain any insight into yourself or someone else?
•Do you plan to change any of your behaviors as a result
of today’s session?
@thesharperlawyer

66. Evaluations
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67. @thesharperlawyer

68. Connect with Cindy
like us follow us follow us share with us
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connect with us
@thesharperlawyer

69. The Sharper Lawyer
now offers
a complimentary
half hour coaching session.
Email Cindy for more details!
cindy@thesharperlawyer.com
@thesharperlawyer

70. Thank You
The Sharper Lawyer
www.thesharperlawyer.com