Jonathan I. Ezor presentation on social media and legal ethics for a CLE of the Association of the Bar of the City of New York on March 14, 2014

1. Social Media Ethics for
Attorneys
Prof. Jonathan I. Ezor
Touro Law Center for Innovation in Business, Law
and Technology
Counsel, Olshan Frome Wolosky
jezor@tourolaw.edu
@ProfJonathan on Twitter
NYC Bar Social Media CLE
March 14, 2014

2. Electronic
Communications
Crucial for All
Businesspeople
• Multiple channels of electronic business
communication
– E-mail
– Text messages
– Web sites
– Videoconferencing
– Social media
– Others
• Can be one-way, two-way or multipoint
jezor@tourolaw.edu

3. Common Challenges of
Electronic Business Communication
• Addressing and attachment errors
• Lack of nuance & tone
• Heightened expectations of responsiveness
• Informality
• Compliance
• Management
jezor@tourolaw.edu

4. Attorneys’ Ethical
Obligations Add to
Challenges
• Rules of Professional Conduct impact on
attorney communication
• Lawyers must ensure compliance with
those as well as with good business
practices
• Confidentiality biggest potential breach
jezor@tourolaw.edu

6. Newly Added
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.
jezor@tourolaw.edu

7. Concluding Paragraph from ABA
Technology Proposal
• Technology can increase the quality of legal services,
reduce the cost of legal services to existing clients, and
enable lawyers to represent clients who might not
otherwise have been able to afford those services. Lawyers,
however, need to understand that technology can pose
certain risks to clients’ confidential information and that
reasonable safeguards are ethically required. The
Commission’s proposals are designed to help lawyers
understand these risks so that they can take appropriate
and reasonable measures when taking advantage of
technology’s many benefits….
jezor@tourolaw.edu

8. Investigative Issues
• How are social media being used?
– Information about case?
– Information about opposing counsel? Judge?
– Information about parties? Witnesses? Jurors?
• Front page article in Washington Post (May 29,
2010) about increasing use of subpoenas to
obtain information from social networks:
http://ezor.org/jpsvx
jezor@tourolaw.edu

9. http://ezor.org/czax6

11. http://ezor.org/8k498

12. http://ezor.org/am9oh

13. http://ezor.org/r5k76

15. http://ezor.org/ry07c

18. http://ezor.org/fqbq1

20. http://ezor.org/1eb3w

21. Evidence Collected in Violation of
Ethics Rules Probably Admissible,
But…

22. Lying To A Tribunal
• Model Rule 3.3 prohibits attorneys from
making a false statement of fact to a
tribunal
• New connections via social media provide
“channels” for discovery of such
statements

23. http://ezor.org/5d3h9

24. Advising Clients on
Social Media Posts
• Ethical issues regarding clients’ social media
posts
• Questions of spoliation, disclosure
• Rules different for civil, criminal matters
jezor@tourolaw.edu

25. http://ezor.org/x8as9

28. Revised Model Rules
1.18(a) and (b)
(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 Rule 1.9 would permit with respect to information of
a former client.
jezor@tourolaw.edu

29. NYSBA Ethics Opinion 899
http://ezor.org/hsg1y

32. “Specialties”
jezor@tourolaw.edu

33. NYSBA Ethics Opinion 972
http://ezor.org/mwj05
CONCLUSION
6. A law firm may not list its services under the heading
“Specialties” on a social media site. A lawyer may not list
services under that heading unless the lawyer is certified in
conformity with the provisions of Rule 7.4(c).

35. Recommendations
• LinkedIn allows parties to “recommend” the work of
a another participant. Issues?
• What about asking a client to recommend your
work?
• Any other risks in posting information about your
matters?
jezor@tourolaw.edu

36. Recommendations
• Be mindful of rules that place limitations on the
use and content of testimonials
• Model Rule 4.1 (duty of candor) prohibits the
making of a false statement of material fact to a
third person
– Beware of possible exaggerations regarding your
biography, experience, etc.
• What about asking a judge to recommend you?
• What about announcing on Twitter, Facebook or
LinkedIn that you just won a big jury trial or
negotiated a big deal?
jezor@tourolaw.edu

39. Recommendations
• Depending on the rules in your
jurisdiction, this could require you to add
a disclaimer along the lines of “results will
vary in each case” or similar language
• A related issue, depending on the content
of your blogs or tweets
– Could they be governed by your state’s
restrictions on lawyer advertising?
– If so, what are your obligations?
jezor@tourolaw.edu

40. http://ezor.org/qnt43