I’ll be speaking on December 18 at a half-day seminar on “Ethics and Social Media: What Attorneys Need to Know.”  The seminar is good for 3.0 hours of Hawaii MCPE credit and 3.0 hours of California CLE credit.  You might be interested in attending if you have questions like:

– What are the rules on legal advertising on social media?
– Should lawyers even set up a social media account?
– Who should I friend on Facebook?
– What are the do’s and don’ts of tweeting?

For more information or to register, click here.

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FC 250 Grand Marshal, Paula Deen

FC 250 Grand Marshal, Paula Deen (Photo credit: Bristol Motor Speedway & Dragway)

Lisa Jackson’s discrimination and sexual harassment lawsuit against Paula Deen settled last Friday, but not before Deen tried to remove Jackson’s attorney, for publicly disparaging her on social media.  A court order filed hours before the settlement reveals that in March, Deen’s lawyers filed a motion for sanctions against Matthew C. Billips, the lawyer who represented Jackson (read the motion here).  The motion alleges that Billips made offensive remarks about Deen on Twitter.  Some of the more eyebrow-raising tweets included:

“I’ve been doing Paula Deen, in a strongly metaphorical sense”

“I plan on undressing [Deen]” (in reference to an upcoming deposition of Deen)

“Now talk about fun, suing Paula Deen is a hoot!”

In another Twitter conversation about Deen’s diabetes, Billips allegedly referred to Deen’s food with the hashtag #buttercoatedbuttercookies.

Based on Billips’ tweets and his discovery practices, Deen’s lawyers asked the court to disqualify him from continuing to represent Jackson.  As the August 23 court order shows, the judge declined to disqualify Billips, but it was open to imposing some form of sanctions against him.  The judge has indicated that the settlement will not stop the court from sanctioning Billips despite Deen’s lawyers attempt to withdraw their sanctions motion in light of the settlement.  Billips has 20 days as of Friday to show why he should not be sanctioned.

This cautionary tale that teaches litigants (and their attorneys) not to discuss pending cases on social media.  Posts on social networks like Facebook and Twitter can be publicly accessible, are potentially discoverable, and can be the basis for a defamation lawsuit.  There’s little to be gained and much to lose by talking about a lawsuit online.  For that reason, lawyers now commonly instruct their clients in their retainer agreements not to discuss the case with anyone on social media, even family and friends.  Lawyers would do well to follow their own advice.

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Recent amendments to the Hawaii Rules of Professional Conduct include language allowing lawyers to advertise on social media.  The amendments conform the language of Rules 7.2 and 7.3 to their counterparts in the current version of the ABA Model Rules of Professional Conduct.  Amended Rule 7.2(a) explicitly includes “electronic communication” as a permissible way to advertise legal services.  The comments to the amended Rule are more direct, noting that “electronic media, such as the Internet, can be an important source of information about legal services, and lawful communication by electronic mail is permitted by this Rule.”  Although the amended Rules don’t define “electronic communication,” the term appears broad enough to include social media.

The amendments place limits on soliciting clients on social media, however.  Rule 7.3 currently prohibits a lawyer from contacting potential clients in person or by telephone to solicit business for personal monetary gain unless the potential client has a family, close personal, or prior professional relationship with the lawyer.  Amended Rule 7.3 adds “real-time electronic contact” to the list of forbidden solicitation methods.  What “real-time electronic contact” means has yet to be examined in a reported case, but the term could conceivably apply to text messages, instant messages, Skype, and posts on social networks like Facebook, Twitter, or LinkedIn.

Tech-savvy lawyers will also appreciate the deletion of the requirement in current Rule 7.2(b) that a lawyer keep records of every advertisement for two years.  Lawyers who promote their services by posting online content frequently could find compliance with the requirement impractical.  The amended Rules omit the retention requirement for all forms of legal advertising.

The amended Rules take effect on January 1, 2014.

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Disclosure of confidential client information on the Internet by attorney violates Rule 1.6 of the Rules of Professional ConductIn re Skinner, 740 S.E.2d 171 (Ga. Mar. 18, 2013)

A Georgia attorney recently learned the hard way that the Internet is no place to vent about a client.  The attorney (Skinner) received negative comments from a client on consumer review websites.  In response, Skinner posted personal and confidential information about the client on the Internet.  After a formal complaint was filed against Skinner by the State Bar of Georgia, Skinner filed a petition for voluntary discipline admitting that she violated Rule 1.6 of the Georgia Rules of Professional Conduct.  Rule 1.6 requires a lawyer to maintain the confidentiality of all information gained in the professional relationship with a client unless the client consents to disclosure after consultation.  The client obviously did not consent to Skinner sharing her private information on cyberspace.

Skinner filed a motion for voluntary discipline in the form of a reprimand, which is the mildest form of discipline authorized for Rule 1.6 violations.  The Georgia Supreme Court rejected Skinner’s petition despite recommendations by the Office of General Counsel of the State Bar and a special master to accept it.  As a result, Skinner could face stricter disciplinary measures for her violations.

LegalTXT Lesson: Posting confidential information on the Internet is generally a bad idea.  Especially if the information concerns somebody else.  And you’re a lawyer.  If you’re a professional who has an ethical duty to preserve confidences, like a lawyer, sharing confidential information about a client online is an invitation for trouble.

On a related note, responding to negative online comments with more criticism or hurtful actions (like revealing personal information about the commenter) is rarely an effective means of repairing reputation.  The meltdown on the Facebook page of Amy’s Baking Company is an extreme example (although the owners claim the page was hacked).   As the adage goes, don’t fight fire with fire.

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