James R. Moss Payne & Fears LLP - PowerPoint Presentation

James R. MossPayne & Fears LLPJuly 26, 2018Utah State Bar Convention Improving and Managing Your Online Presence: Social Media Developments in the Law and Ethics for Clients and Attorneys

AgendaLegal Landscape / Recent Developments in Social Media Law for Employers Recent Developments in Social Media Attorney Ethics Guidelines Safely Enhancing Your Social Media Presence LinkedIn and Attorney Bios Facebook and Twitter Forums / Blogs

Social media law for employers / business managers

Social Media and Labor Law Collide: NLRB Enters the Social Media Era “M,” an employee at a domestic violence clinic in Buffalo, posted to Facebook from her home computer that employee “L” had threatened to tell management that “M” and her co-workers gave poor client service, and asked, “My fellow coworkers how do u feel?” Likely did not consider herself an heir to the mineworkers and steelworkers who prompted the passage of the Wagner Act in 1935. Certainly wasn’t seeking to organize a union, or even to “stick it to the man,” given that L was merely a co-worker. Administrative Law Judge with the National Labor Relations Board (“NLRB”) held that M’s post constituted “concerted activity,” protected by Section 7 of the National Labor Relations Act; that her co-workers also engaged in “protected activity” when they defended themselves and took after L in Facebook responses posted from their own home computers; and that their employer violated Section 8 of the NLRA when it fired M and the others for harassing L, after L printed the posts and took them to management.

Multi-State Legal Checkerboard U.S. Chamber of Commerce: “[T]he void in federal statutory law is filled by a hodgepodge of social media statutes in many (but not all) states that set inconsistent standards for multi-state and national employers. Worse still, there has been a rapidly developing National Labor Relations Board (NLRB or Board) ‘law’ composed of a series of individual case rulings that limit companies’ rights vis-à-vis their employees with respect to social media in the workplace.”

Developing Issues Recent statutes and decisions have addressed issues arising from: employers’ use of social media in the hiring process employees’ use of social media for actions that may constitute discrimination or harassment the disclosure of trade secrets or violation of non-disclosure agreements through social media employers’ access and use of information posted by employees or applicants on social media The legal ramifications of pervasive social media communication are also coming into focus for attorneys in their roles as advocates and business owners.

Social media ISSUES IN THE HIRING PROCESS

Social Media Issues in the Hiring Process Social media is a potential source of valuable information about candidates for employment. However, reviewing social media accounts can also violate laws governing employee background checks, or reveal applicants’ protected characteristics such as religion, national origin, or lawful off-duty conduct (protected in several states).

Widespread Use (Potential Abuse) CareerBuilder social media recruitment survey: 60 percent of employers used social media to research job candidates in 2016, up from 52 percent in 2015, 22 percent in 2008, and 11 percent in 2006. Of 59% of hiring managers using search engines to research candidates, 49 percent found social media information that caused them not to hire a candidate. Information that had a negative effect included provocative or inappropriate photographs, videos, or information (46%), information about the candidate drinking or using drugs (49%), negative comments about a former employer (34%) and discriminatory comments related to race, religion, and gender (29%). 32% of employers who screened candidates through social media found information that caused them to hire a candidate, including background information that supported job qualifications (44 percent), a candidate’s site conveying a “professional image” (44 percent), a candidate’s personality coming across as a “good fit” with company culture (43 percent), a candidate being well-rounded and showing a wide range of interests (40 percent), and having great communication skills (36 percent).

Discrimination Claims Declining to interview or hire because of an applicant’s “inappropriate” photos, if applied disproportionately to once protected group, may demonstrate bias. On the other hand, a positive judgment regarding one employee’s “professional image,” if applied unevenly, may suggest discrimination based on race or other protected categories. Kentucky case: employer learned of an applicant’s strong conservative religious beliefs through online screening, precluding dismissal of her claim for failure to hire based on religious discrimination. Gaskell v. Univ. of Kentucky, 2010 WL 4867630 (E.D. Ky. Nov. 23, 2010).

Age Discrimination 2018: Communications Workers of America (“CWA”) filed class action against Amazon, T-Mobile, Cox Communications, and Cox Media group alleging age discrimination in their Facebook ads. Complaint alleges employers have adjusted job advertisement settings to target potential employees under 40. Facebook feature allows the advertiser to see why an individual saw the specific ad ( i.e. , did he or she meet the targeting criteria for the ad). Issues Raised: Can advertising on certain social media platforms in itself skew toward younger applicants? If social media is used carefully, can employers engage in targeted advertising to reach best candidates without excluding protected classes ?

Fair Credit Reporting Act (FCRA) Fair Credit Reporting Act (FCRA) requires employers to: obtain written consent of a candidate before obtaining a background screening through a third party disclose to the candidate what the background screening is, what information it includes, and how they intend to use it provide written notice about the effect of any information gathered on the hiring or rejection decision. Social media accounts are increasingly used in third-party background checks; disclosing the use of information that reveals a protected trait can create a high risk of liability. EXAMPLE CASE

Ban the Box Reviewing an applicant’s social media accounts may reveal a past criminal conviction, circumventing recent “ban the box” laws which prohibit inquiring about convictions before an applicant is interviewed. In Utah, asking about criminal conviction prior to interviewing the candidate is prohibited for government entities; using in private hiring currently permitted but risky.

Tips for Safe Use of Social Media in Hiring Obtain consent from job applicant before performing the search and screening only after a job offer is made, contingent upon completion of the check. Establish standard screening practices to show decisions are made objectively based on job description, document why a person who meets the objective criteria was not hired. Perform social media checks through a third party behind an "ethics wall." Don’t make the hiring decision, only provide job-related data after offer is made, without protected characteristics. Background screening firms can conduct social media checks, assemble a report on the applicant's online identity. However, screening firms must follow the same federal Fair Credit Reporting Act (FCRA) rules. As screening firms operate with limited knowledge, use only with caution.

Social media issues FOR CURRENT EMPLOYEES

Social Media for Current Employees: Discrimination / Harassment Issues Employee conduct on social media sites can give rise to claims of discriminatory and hostile work environment by other employees. Many cases involve allegations of social media being used as a vehicle for harassing a coworker or other individual. Facebook and other posts may also be evidence of unlawful intent:

Sexual Harassment Federal court in Illinois found that a food service director, who complained that graphic sexual images of her drawn on a bathroom wall had been a topic of social network sharing for a month, and lost her job soon after complaining, had alleged harassment severe enough to create a hostile environment. Court found it significant that the supervisor knew workers were passing around cell phones to view Facebook posts. Meng v. Aramark Corp. , 2015 WL 1396253 (N.D. Ill. Mar. 24, 2015) Fennell v. Marion Indep. Sch. Dist. , 963 F. Supp. 2d 623, 628 (W.D. Tex. 2013) (ruling in favor of students who asserted racial harassment claims based on “comments, taunts and electronic images sent via cell phone texts and on social media websites, such as Facebook”).

Racial Harassment / Retaliation A federal court in Oklahoma found comments lamenting that a “___ing Indian” was made department chair, and other racist Facebook posts by two professors who were allowed to vote on an employee’s tenure (which was denied), demonstrated prevalent racial hostility in the department. Court also allowed a retaliation claim to advance, because the Facebook posts provided a causal link between the denial of tenure and prior complaints of race discrimination. Hannah v. Northeastern State Univ. , 2015 WL 501933, (E.D.Okla., Feb. 05, 2015), rev’d Hannah v. Cowlishaw , 628 Fed.Appx. 629 (10 th Cir. 2016).

Disability Discrimination A California court found an employer liable to an employee for disability harassment where his coworkers had posted offensive social media blogs about his “claw” hand (a birth defect from which he had only two fingers). On appeal, the employer argued that it did not maintain the blog site at issue and that it could not determine that the postings (which were made anonymously) actually came from its employees during the investigation into plaintiff’s internal complaint. Court found sufficient evidence for the jury to impute responsibility to the employer for the offensive posts because the harassing employees had accessed the blog site using the employer’s computers, and their blogs discussed workplace issues. Espinoza v. Cnty. of Orange , 2012 WL 420149 (2012).

FMLA Retaliation 11 th Circuit Family and Medical Leave Act (FMLA) retaliation claim survived despite photos of a plaintiff at an amusement park and a beach, when the employee claimed to be recovering on FMLA leave. Employer claimed employee was terminated for posting Facebook photos that violated the company’s social-media policy prohibiting postings that would harm morale. But employer was not able to show that the policy was the reason for the firing, as it was not mentioned during his discharge and there were contradictory reasons for his firing. Jones v. Gulf Coast Health Care of Delaware LLC , 854 F.3d 1261 (11 th Cir. 2017)

Trade Secrets in Social Media Social media contacts, and control of groups linking professionals together based on a common interest, can be considered trade secrets. Illinois Court: former employee’s refusal to allow control of a professional LinkedIn group with membership restricted to 679 of the employer’s current and potential customers supported a former employer’s breach of non-compete, Trade Secrets Act, and common law misappropriation claims, finding that the names of group members would be “extremely valuable” information to competitors. CDM Media USA, Inc. v. Simms , 2015 WL 3484277 (N.D. Ill. June 01, 2015).

Trade Secrets in Social Media Cont. California Court held that disputes about whether an employee misappropriated trade secrets by maintaining LinkedIn contacts with a company’s clients after his termination precluded summary judgment, despite the employee’s argument that LinkedIn contacts do not constitute a trade secret because the employer encouraged employees to use LinkedIn, and the contacts were viewable by any other contact. Cellular Accessories For Less, Inc. v. Trinitas LLC , 65 F.Supp.3d 909 (C.D. Cal., Nov. 5, 2014). Nightclub sued former employee alleging theft of trade secrets by accessing club’s MySpace account and profiles using company’s login and password obtained in connection with his employment, in order to facilitate post-employment competition. Court held that social media data qualified as trade secret because (1) it was akin to traditional customer database, (2) the data could not be obtained through publicly available sources such as directories, and (3) even though competitor could duplicate the employee’s effort, it would take thousands of “friend’ requests. Christou v. Beatport, LLC 849 F.Supp. 2d 1055 (D. Col. 2012). See also PhoneDog v. Kravitz, 2011 WL 5415612 (N.D. Cal. 2011)

Defamation or Retaliation? Alabama federal court found sufficient evidence that an employer suspended, fired, and then sued an employee for defamation because she spoke to the media, was featured on Facebook by the media, and complained to OSHA about workplace exposure to chemicals linked to breathing problems, held that the employee was likely to succeed on a retaliation claim. Employer was enjoined from taking adverse actions against employees who exercised their rights under OSHA. Perez v. Lear Corp. Eeds and Interiors and Renosol Seating, LLC , 2015 WL 2131282 (S.D.Ala., May 07, 2015).

Regulation Of Social Media Access Under Utah Law 2013 Utah Internet Employment Privacy Act: Utah employers may not request employees or applicants to disclose information related to their personal Internet accounts. A majority of states have now passed similar laws. When an employer believes its employee has emailed proprietary documents to a personal email account, or that an employee has sent sexually harassing messages to a co-worker, and wants to demand that the employee disclose his account password to its IT department for review, the employer must proceed with caution.   Employers may not penalize or discriminate against an employee or applicant for failing to disclose a username or password. A similar restriction applies to higher educational institutions through passage of the Internet Postsecondary Institution Privacy Act. Utah Code 34-48-201.

Regulation Of Social Media Access Under Utah Law Cont. IEPA only restricts employer access to personal online accounts that are used by an employee or applicant exclusively for personal communications unrelated to any business purpose of the employer. The Act does not restrict access to accounts created, maintained, used or accessed by an employee or applicant for business related communications or for a business purpose of the employer. When an employee uses a personal account for work-related communication, including improper communication, the Act may not apply. IEPA allows disciplining or discharging an employee for transferring the employer's confidential information to an employee’s personal Internet account without the employer's authorization. §34048-202(1)(b).

Regulation Of Social Media Access Under Utah Law Cont. IEPA allows an employer to require cooperation in an investigation based on specific information about activity on the employee’s personal account that involves workplace misconduct such as theft of trade secrets or harassment.   However, the statute does not allow the employer to demand the employee’s password, only to require the disclosure of the content that is at issue. §34-48-202(1)(c), (2). If the employee refuses, the employer may need to take action against the employee and seek Court intervention to obtain the necessary information.

Ownership of “Digital Assets” Utah House Bill 13, passed in 2017, allows a social medial owner to decide who inherits “digital assets” such as Facebook, Twitter, YouTube, email or other accounts. Digital assets will be treated like physical property in the eyes of the courts. The bill allows heirs to an estate to take control of the accounts, raising concerns for employers if the heirs post information regarding the employer of the deceased employee. Similar legislation has been passed in other states.

Tips on Social Media Compliance for Employers 1.  Process counts: Don’t assume that allegedly unlawful conduct justifies using improper means to obtain evidence (invasion of privacy, demanding passwords, surreptitious “friending.”) Be proactive through appropriate means. 2.  Write policies and rules carefully, avoid overbreadth.  Consider whether policy unduly restricts off-duty, personal-account activity. Give proper notice, ask for written acknowledgment. 3.  Protect employees from harassment affecting employment . Consider supervisors’ awareness of comments, beware of spillover comments and effect at work. 4. Pay attention to context in termination and discipline decisions.   Before disciplining an employee for a social media post, understand the context; when post is off-duty, review effects at workplace.

Social media AND THE NLRA (UNIONIZED OR NOT)

NLRA – Not Just for Teamsters Section 7 of the NLRA protects private-sector employees’ right to “self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C.A. § 157 (emphasis added). Section 8 of the NLRA makes it an “unfair labor practice” for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 of this Act.” An employer violates Section 8(a)(1) not only by disciplining or firing employees for engaging in “concerted activity,” but also through the maintenance of a work rule if that rule “would reasonably tend to chill employees in the exercise of their Section 7 rights.” Lafayette Park Hotel , 326 NLRB 824, 825 (1998), enfd. 203 F. 3d 52 (D.C. Cir. 1999) (emph. added).

NLRB: Employer Policies Reviewed Beginning in 2011, employers’ social-media policies have been the most frequent subject of the NRLB’s intervention in the non-union workplace. Many employers have policies restricting what employees can say about the company and coworkers to avoid workplace disruption or damage to customer relations. NLRB has held some policies impermissibly restrict, or unreasonably “chill,” employees’ Section 7 rights. After handling a number of social media complaints, the NLRB’s Acting General Counsel issued three reports during 2011 and 2012 outlining the NLRA’s application to employee social media postings and employers’ policies. Taken together, the Reports established these general principles: Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees. However, an employee’s comments on social media are generally not protected if they are merely personal gripes not made in relation to group activity among employees, such that employer discipline or termination may be permissible.

Policies Stricken by NLRB As with traditional “concerted activity,” the Reports suggest that an employer’s rule will be found to unlawfully chill protected activity if (1) employees reasonably would construe the rule to prohibit such activity; (2) the rule was issued in response to union or concerted activity; or (3) the rule has been applied to restrict protected activity. Generally, the more expansive a social media policy’s prohibitions, the more likely it will be considered unlawfully overbroad. However, the Reports also provided good news for businesses by recognizing that employee postings that are not focused toward group action, but rather present only an individual “gripe,” are unprotected and may be subject to discipline.

Policies Stricken by NLRB Cont. One report examined seven cases, finding only one to be entirely compliant with the Act. The Report approved Wal-Mart’s social media policy prohibiting “inappropriate postings that may include discriminatory remarks, harassment and threats of violence or similar inappropriate or unlawful conduct,” which Wal-Mart had revised after discussing the policy with the NLRB.   But the Report disapproved General Motors’ policy: “We found unlawful the instruction that ‘offensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline.’ ” It also found, “This provision proscribes a broad spectrum of communications that would include protected criticisms of the employer’s labor policies or treatment of employees.”

Social Media Codes of Conduct In August of 2016, NLRB struck down Chipotle’s “Social Media Code of Conduct,” which prohibited employees from spreading “confidential” information and making “disparaging” statements about the company. NLRB held the “confidential” language was too vague, and could prohibit statements protected by Section 7. NLRB concluded that prohibitions against making “false or misleading” statements were also too broad; under the NLRA, such statements are protected unless made with a malicious motive. The NLRB also found a provision restricting the use of the company’s name and logo went too far because employees may need to identify their employer when discussing protected, concerted activity.   

NLRB 2017: A Tale of Two Terminations Butler Med. Transport, LLC and Michael Rice and William Lewis Norvell , 365 NLRB No. 112 (N.L.R.B. July 27, 2017). Two terminated employees filed charges of unfair labor practices, NRLB reached different conclusions regarding the company’s termination in response to Facebook posts critical of the Company. First employee “Norvell” commented in response to another employee’s termination, “Sorry to hear that but if you want you may think about getting a lawyer and taking them to court.” He also suggested, “[Y]ou could contact the labor board too.” Ambulance company discharged the employee under its policy on employee social media usage: “I will refrain from using social networking sights [ sic ] which could discredit Butler Medical Transport or damages [ sic ] its image.” NLRB found termination improper under Section 8(a)(1), as Norvell was engaging in protected, concerted activity by discussing a former employee’s discharge and advising him of a potential remedy. Board also found that the post was for the “mutual aid and protection” of employees because the discharge was of potential concern to all employees, the employee asked for support and Norvell was involved in a “common cause” with fellow employees. Second employee “Rice” posted that one of the ambulances “broke down,” although it not actually broken down. The employee used profanity in his post, and it was liked by two people. NLRB upheld the termination, relying on the company’s investigation to finding that the ambulance assigned to the employee had not actually experienced any maintenance problems, such that the employee’s post was determined to be “maliciously false,” removing any protection from the post. Board found that his post was not for “mutual aid and protection.”

Adverse Employment Action:NLRB Remedies When an employee is terminated for conduct found to be “concerted activity” protected by Section 7, the NLRB has ordered that employees be reinstated to their old jobs with full back pay and interest.

Tips for NLRB Social Media Compliance 1.  Takeaway from Butler: Employees have a right under the NLRA to be critical of their employers on social media when those criticisms pertain to protected, concerted activity, but do not have a right to engage in malicious behavior or spread lies about the employer. 2.  Write policies and rules carefully.   NLRB rejected Butler’s argument that bullet-point list was not a “company” policy; if rule is communicated to employees, NLRB will consider it “policy.” Consult with counsel to make sure the wording doesn’t inadvertently violate the law. 3.  Don’t be overbroad.   NLRB has consistently rejected rules broadly prohibiting employees from posting content on social media that damages the employer’s reputation, or bars them completely from posting about work-related issues.  Avoid categorical bans on employee speech in favor of rules that focus on avoiding specific, narrowly defined conduct. 4.  Pay attention to context in termination and discipline decisions.   Before disciplining an employee for a social media post, understand the context in which the post was made, and examine whether it may be considered “concerted activity.”  Does the post address a work-related issue that other employees have addressed?  Does the employee ask co-workers to take action?  If so, tread very carefully, determine whether post violates legitimate employer rights..

Social media FOR ATTORNEYS

Attorneys: Benefits of Social Media Develop connections and new work Communicate in a new way with clients Stay top of mind Gather intel Control your personal brand Show your personality Source: 2017 State of Digital and Content Marketing Survey, conducted by Greentarget and Zeughauser Group. 114 corporate counsel responses.

Don’t practice law on the InternetMany ethical obligations are invoked… Advertising and Solicitation False or Misleading Statements Duty of Confidentiality Duty of Competence and Diligence Unauthorized Practice of Law Communication with Represented Party Communications with Unrepresented Third Parties Inadvertently Creating Attorney-Client Relationships

Client or Prospective Client Confidentiality: Rule 1.6 Rule 1.6. Confidentiality of Information. (a) A lawyer shall not 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 by paragraph (b). (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: Prevent death or bodily harm, prevent crime / fraud, prevent or mitigate financial interest of another due to client’s commission of crime or fraud, to establish claim or defense in controversy between attorney and client (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.

Duties to a Prospect ClientRule 1.18. Duties to Prospective Client. (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 the Rules would permit with respect to information of a former client. Social networking sites raise concerns due to two-way communication, attorneys cannot thoroughly monitor or control the discussion.

False or Misleading Statements: Rule 7.1 Rule 7.1. Communications Concerning a Lawyer's Services. A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it: (a) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading; (b) is likely to create an unjustified or unreasonable expectation about results the lawyer can achieve or has achieved; or (c) contains a testimonial or endorsement that violates any portion of this Rule. Subsections (b) and (c) in the Utah Rule provide explanation beyond Model Rule .

False or Misleading Statements: Comment to Rule 7.1 [1] This Rule governs all communications about a lawyer's services, including advertising permitted by Rule 7.2. Whatever means are used to make known a lawyer's services, statements about them must be truthful. [2] Truthful statements that are misleading are also prohibited by this Rule. A truthful statement is misleading if it omits a fact necessary to make the lawyer’s communication considered as a whole not materially misleading. A truthful statement is also misleading if there is a substantial likelihood that it will lead a reasonable person to formulate a specific conclusion about the lawyer or the lawyer’s services for which there is no reasonable factual foundation. [3] An advertisement that truthfully reports a lawyer’s achievements on behalf of clients or former clients may be misleading if presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client’s case . Similarly, an unsubstantiated comparison of the lawyer’s services or fees with the services or fees of other lawyers may be misleading if presented with such specificity as would lead a reasonable person to conclude that the comparison can be substantiated. The inclusion of an appropriate disclaimer or qualifying language may preclude a finding that a statement is likely to create unjustified expectations or otherwise mislead the public.

Endorsements Professionals on LinkedIn tend to generously endorse their contacts. For attorneys, this creates an ethical problem. Rule 7.1(d) provides that an advertisement is prohibited if it contains a false or misleading endorsement. Bar Associations that have examined the issue have concluded that attorneys must monitor their LinkedIn profiles to remove any endorsements that are misleading because the profiles constitute an attorney advertisement. See, Social Media Ethics Guidelines of the Commercial and Federal Litigation Section of the New York State Bar Ass’n, Updated June 9, 2015, Guideline No. 2.C. If an attorney is endorsed for litigation, but the attorney is a transactional attorney with no litigation experience, then that endorsement is probably false or misleading, and Rule 7.1(d) may require the attorney to remove the endorsement.  

Attorney Advertising: Rule 7.2 Rule 7.2. Advertising. (a) Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through written recorded or electronic communication, including public media (c) All advertisements disseminated pursuant to these Rules shall include the name and office address of at least one lawyer or law firm responsible for their content. (d) Every advertisement indicating that the charging of a fee is contingent on outcome or that the fee will be a percentage of the recovery shall set forth clearly the client’s responsibility for the payment of costs and other expenses. (e) A lawyer who advertises a specific fee or range of fees shall include all relevant charges and fees, and the duration such fees are in effect.

Website or LinkedIn Profile May Constitute Advertisement Rule 7.2. Advertising. (a) Subject to the requirements of Rules 7.1 (misleading statements) and 7.3 (solicitation), a lawyer may advertise services through written recorded or electronic communication, including public media. Many attorneys’ LinkedIn profiles run afoul of prohibitions in Rule 7 of the Utah Rules of Professional Conduct (“RPC”). Personal information on attorney bio or website may be considered advertising if it discusses the attorney’s legal career or experiences.

Authorized Internet Advertising: Rule 7.2 Comment Rule 7.2 Comment: [3] Questions of effectiveness and taste in advertising are matters of speculation and subjective judgment. Some jurisdictions have had extensive prohibitions against television and other forms of advertising, against advertising going beyond specified facts about a lawyer or against "undignified" advertising. Television, the Internet and other forms of electronic communication are now among the most powerful media for getting information to the public, particularly persons of low and moderate income; prohibiting television, Internet, and other forms of electronic advertising, therefore, would impede the flow of information about legal services to many sectors of the public . Limiting the information that may be advertised has a similar effect and assumes that the Bar can accurately forecast the kind of information that the public would regard as relevant. But see Rule 7.3(a) for the prohibition against a solicitation through a real-time electronic exchange initiated by the lawyer .

Solicitation: Rule 7.3 Rule 7.3. Solicitation of Clients. (a) A lawyer shall not 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, unless the person contacted: (a)(1) is a lawyer; (a)(2) has a family, close personal, or prior professional relationship with the lawyer, or (a)(3) is unable to make personal contact with a lawyer and the lawyer’s contact with the prospective client has been initiated by a third party on behalf of the prospective client. (b) A lawyer shall not solicit professional employment by written, recorded or electronic communication or by in-person, live telephone or real-time electronic contact even when not otherwise prohibited by paragraph (a), if: (b)(1) the target of the solicitation has made known to the lawyer a desire not to be solicited by the lawyer; or (b)(2) the solicitation involves coercion, duress or harassment. (c) Every written, recorded or electronic communication from a lawyer soliciting professional employment from anyone known to be in need of legal services in a particular matter shall include the words "Advertising Material" on the outside envelope, if any, and at the beginning of any recorded or electronic communication, unless the recipient of the communication is a person specified in paragraphs (a)(1) or (a)(2). For the purposes of this subsection, "written communication" does not include advertisement through public media, including but not limited to a telephone directory, legal directory, newspaper or other periodical, outdoor advertising, radio, television or webpage.

Solicitation: Rule 7.3 Comment 1] A solicitation is a targeted communication initiated by the lawyer that is directed to a specific person and that offers to provide, or can reasonably be understood as offering to provide, legal services. In contrast, 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. [3] This potential for abuse inherent in direct in-person, live telephone or real-time electronic solicitation justifies its prohibition, particularly since lawyers have alternative means of conveying necessary information to those who may be in need of legal services. In particular, communications can be mailed or transmitted by email or other electronic means that do not involve real-time contact and do not violate other laws governing solicitations. These forms of communications and solicitations make it possible for the public to be informed about the need for legal services, and about the qualifications of available lawyers and law firms, without subjecting the public to direct in-person, live telephone or real-time electronic persuasion that may overwhelm a person’s judgment. [4] The use of general advertising and written, recorded or electronic communications to transmit information from lawyer to the public, rather than direct in-person or other real-time communications, will help to ensure that the information flows cleanly as well as freely . The contents of advertisements and communications permitted under Rule 7.2 can be permanently recorded so that they cannot be disputed and may be shared with others who know the lawyer. This potential for informal review is itself likely to help guard against statements and claims that might constitute false and misleading communications in violation of Rule 7.1. The contents of direct in-person, live telephone or real-time electronic contact can be disputed and may not be subject to third-party scrutiny. Consequently, they are much more likely to approach (and occasionally cross) the dividing line between accurate representations and those that are false and misleading.

Presenting Attorney asSpecialist or Expert: Rule 7.4 LinkedIn profiles typically contain a written bio, and attorneys often emphasize their experience in their profiles. RPC Rule 7.4 prohibits an attorney from advertising that they are a specialist or an expert unless the attorney is certified as a specialist or expert by an approved organization and meets other requirements set forth in Rule 7.4.

DisclaimerIf you have recommendations, testimonials, or endorsements from clients on your LinkedIn profile, consider placing the following disclaimer in your “Summary” section: Attorney Advertising Disclaimer: Any recommendations, testimonials or endorsements on this profile do not constitute guarantees, warranties or predictions regarding the outcome of your legal matter.

Attorney Websites: ABA Opinions False or misleading information? ABA Formal Opinion 10-457 – Websites must comply with MR 7.1 prohibiting false or misleading statements. Assumes website is used for advertising – not always clear. PRO TIP Monitor your website and LinkedIn for outdated information every 6 months.

Attorney Websites: ABA Opinions and Tips Inadvertent Attorney-Client Relationship ABA Formal Opinion 10-457 also says website can establish a relationship by facilitating communication. PRO TIP Ensure your website has a “terms and conditions” section, especially if you have a “Contact Us” form. Refrain from providing advice through LinkedIn or Facebook messages

Attorney Websites: ABA Opinions Giving legal advice Must not mislead public about meaning of the law, or give impression that information can substitute for legal advice. PRO TIP Blog, via website or stand-alone, should also have appropriate disclaimers. When giving presentations to non-lawyers, ensure they are aware information is only for educational purposes and should not be construed as legal advice.

Attorney Websites: ABA Opinions Confidential client information ABA Formal Opinion 10-457 – attorneys must obtain client consent before posting information on current or past legal matters or identity of current or past clients. (Not all states have adopted). The Ethics 20/20 Commission developed a number of revisions to reinforce a lawyer's ethical duty to protect the confidentiality of client information, including material stored electronically. Key language is 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.“ PRO TIP Ask permission from your clients before using their name on your website, marketing materials, LinkedIn, pitches/RFPs, etc.

How can I improve my LinkedIn profile?

optimize your profiles Upload a professional headshot Create a unique headline Add a summary Add accurate and relevant skills

Kelby Van PattenDO’S - Professional Photo DON’T’S - Generic headline - Not accepting invitations - No summary - Linking experience to official company page

Updating Your Headline Key real estate to showcase: WHAT YOU ARE + (e.g. business litigation partner, employment and labor law attorney) WHO YOU HELP + (e.g. non-profits, Fortune 500 companies) HOW YOU HELP (“innovative solutions”, “protecting employers”) 120 characters You can change your headline often. Experiment and see what works!

Summary Section Summary of your work experience and skills 2-3 paragraphs; bulleted lists are acceptable Write summary in the first person Aim for a mix of professional and personal content

Skills and EndorsementsCan list up to 50 skills and prioritize them

When adding connections, customize your invitation with a personal note

Share relevant content to your audience Log in to LinkedIn and your home page will have a box at the top with “Share an article, photo or update” Click the box to activate the text field. Copy/paste URL Delete the URL that you just pasted Use the text box to write in a comment.   Click “Post”

Dan LivingstonDO’S - Professional photo - Customized headline - Summary DON’T’S - Summary is in 3 rd person - Can move parts of narrative to other sections

Amy PattonDO’S- Professional photo - Summary is in 1 st person and is focused - Active on LinkedIn - Specific practice information within “Experience” section DON’T’S - Generic Headline - Out-of-date information

ATTORNEY BIOS: practical tips

Hook readers up front Leila Sokkar Narvid is the managing partner of the San Francisco Office and a partner in the Employment… Clients come to Leila for her courtroom experience and her practical, creative and efficient resolution of all types of business disputes.

Ditch Overused and Uninspiring Phrases “Erik’s practice focuses on…” “He represents policyholders in a broad variety of…”

List Specific Experience (with or without client names)

Facebook and twitter

What Constitutes Advertising? Is Facebook post an advertisement? California Ethics Opinion 2012-186 , California Bar concluded that a Facebook post must comply with advertising rules if it concerns the attorney’s availability for professional employment. The Bar discussed five Facebook posts to shed light on when an attorney crosses the line: “Case finally over. Unanimous verdict! Celebrating tonight.” Conclusion: Announcing victory was not an advertisement because it did not concern availability for professional employment. “Another great victory in court today! My client is delighted. Who wants to be next?” Conclusion: Asking “who wants to be next” made the post an advertisement, and the post violated the prohibition against testimonials without appropriate disclaimers. “Won a million dollar verdict. Tell your friends to check out my website.” Conclusion: Inviting friends to check out the attorney’s website is an advertisement because it concerns availability for professional employment. The post violated the rules because it did not contain the word “Advertisement” as the rules required. “Won another personal injury case. Call me for a free consultation.” Conclusion: This concerned availability for professional employment, and so was an advertisement subject to the rules. “Just published an article on wage and hour breaks. Let me know if you would like a copy.” Conclusion: Offering copies of an article did not concern availability for professional employment and was therefore not subject to the rules governing advertisements.

Your Ethical Obligations:Advertising and Solicitation No false or misleading statements (Rule 7.1) Shall not contain any untrue statement Shall not contain any matter which is false, deceptive, or omit information in a manner which tends to confuse, deceive, or mislead Broad definition of “communication” (Rule 7.1) “’[C]ommunication" includes “Whatever means are used to make known a lawyer's services”

Ethical Obligations:Duty of Confidentiality “Maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.” The duty to protect privileged and confidential information extends to current clients (RPC 1.6), former clients (RPC 1.9), and prospective clients (RPC 1.18) Obtain client consent before posting information about clients on websites and social media

Your Ethical Obligations:Judicial Code May a judge “recommend” someone on LinkedIn either at the judge’s initiation or at the individual’s request? Answer: Maybe. A judge is not automatically prohibited from recommending someone on LinkedIn. Judges are permitted to write letters of recommendation, for example, and this would be somewhat similar. There are, however, restrictions placed on judges when writing letters of recommendation. A judge may be prohibited from writing a letter if the recommendation will be directly received by an individual or entity that regularly appears in the judge’s court. There may be a perceived coercive effect on someone who regularly appears before the judge. However, recommendations on LinkedIn are usually not specifically directed toward individuals and therefore this aspect typically won’t be an issue. A judge may not, however, “recommend” someone who regularly appears before the judge. A recommendation on LinkedIn is different from being a “friend” on Facebook, or “liking” the attorney, because the recommendation may be perceived as an endorsement of the person’s skills and credibility. LinkedIn is a professional networking site and the purpose of recommendations is to promote the professional careers of members. A judge may “recommend” attorneys who don’t appear before the judge or individuals in other professions. A judge may also recommend someone who has worked for the judge, such as a law clerk. https://www.utcourts.gov/resources/ethadv/ethics_opinions/2012/12-1.pdf

Using Social Media During LitigationAttorneys must be careful about sending friend requests to opposing parties and witnesses through Facebook or other social media. Legal Ethics Opinion 2011-2 by the San Diego County Bar Legal Ethics Committee concluded that it is unethical for an attorney to send a friend request to a represented opposing party, and that it is unethical to send a friend request to an unrepresented witness without disclosing the true purpose of the friend request. Attorneys should resist the temptation to use friend requests to gather intelligence for litigation.

Facebook Best PracticesIf a client adds me, now what? You should likely accept, but make sure to remove any controversial or inappropriate posts. You can adjust your privacy settings so only “friends of friends” can add you to as a friend. Restricted List HOW-TO Drop-down arrow in top-right hand corner Select “Settings” Select “Privacy” for “Who can send you friend requests” Select “Blocking” to edit your “Restricted List”

Why Twitter? (Besides Reading Pres. Trump’s Tweets) Learn about your client’s or prospect’s business. Connect with reporters and establish a relationship. This can lead to future interviews. Involved in the community? Many bar associations, charitable organizations and other nonprofits are active on Twitter

Chat rooms, forums and blogging

Blogs If a blog is part of firm’s website, it will trigger Article 7 advertising rules. Question: are personal legal opinions covered? If attorneys are participating in forum where public can discuss legal questions, attorney responds – must you disclose that attorney offers services? Does participation constitute holding yourself out as an expert? JD Supra – uploading documents may suggest expertise Rules 1.18, 7.2 – see above.

Ethical RisksCalifornia Ethics Opinion 2016-196 Under what circumstances is “blogging” by an attorney a “communication”? South Carolina Ethics Opinion 12-03 Can't participate in website designed to allow non-lawyers to post legal questions and describing answering attorneys as experts Unauthorized practice of law in jurisdictions where you are not licensed Malpractice General answers about the law as opposed to specific legal advice

Ethical RisksInadvertently creating attorney-client relationshipsIf advice should be confidential, posting it in a forum may violate duty of confidence Revealing client confidences In re Peshek, MR 23794 (Ill May 18 2010), Illinois Supreme Ct suspends lawyer for blogging and implying that client may have committed perjury. But see Hunter v. Virginia State Bar, 744 SE 2nd 611, VA 2013 -- confidentiality obligations must be balanced against 1st amendment

Forums and Blog Examples

Pitch/Solicitation - Ethical Requirements California Requires that emails bear the word “Advertisement,” “Newsletter” or words of similar important in 12 point font. Nevada A lawyer shall not solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship, by mail, in person or otherwise, when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain.  Utah and Arizona A lawyer shall not 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. EXCEPTION: Can contact if lawyer.

Questions?