Practical and Ethical Use of Social Media in Litigation

PRACTICAL AND ETHICAL USE OF
SOCIAL MEDIA IN LITIGATION
1
Anthony DellaPelle, CRE, Partner,
McKirdy, Riskin, Olson & DellaPelle, P.C.
Nancy Myrland, President
Myrland Marketing & Social Media
The Lawyer’s Marketing Academy

2
Anthony DellaPelle is a shareholder in the New Jersey
law firm of McKirdy, Riskin, Olson & DellaPelle, P.C.
He limits his practice to eminent domain,
condemnation, redevelopment and real estate tax
appeal matters. He is Certified as a Civil Trial Attorney
by the N.J. Supreme Court and is the sole New Jersey
representative for Owners’ Counsel of America, a
national association of leading eminent domain
lawyers across the country. He has also been awarded
the CRE® designation by the Counselors of Real
Estate®, an international group of real estate
professionals recognized as leading advisors in
complex real property matters.
Mr. DellaPelle has an active social media presence,
using LinkedIn, Facebook, and Twitter in connection
with his law practice. He also is the author of the New
Jersey Condemnation Law Blog and New Jersey
Property Tax Law Blog. He lectures frequently on both
a local and national stage regarding property rights
matters.
ANTHONY F. DELLAPELLE, CRE
Partner, McKirdy, Riskin, Olson & DellaPelle, P.C.

4
• Competence in using social media
• Social media for discovery purposes
• Social media as evidence
• Attorney-client privilege and attorney
work product
• Ethical considerations

5
RESOURCES
 ABA Standing Comm. on Ethics and Prof. Responsibility 479 (Dec.
15, 2017) (“The ‘Generally Known’ Exception to Former-Client
Confidentiality”),
https://www.americanbar.org/content/dam/aba/administrative/professi
onal_responsibility/aba_formal_opinion_479.authcheckdam.pdf
 ABA Standing Comm. on Ethics and Prof. Responsibility 480 (Mar. 6,
2018) (“Confidentiality Obligations for Lawyer Blogging and Other
Public Commentary”),
https://www.americanbar.org/content/dam/aba/administrative/professi
onal_responsibility/aba_formal_opinion_480.authcheckdam.pdf
 NYSBA Social Media Ethics Guidelines (May 11, 2017),
http://www.nysba.org/socialmediaguidelines17/
 “The Sedona Conference®Primer on Social Media” 14 Sedona Conf.
J. 191 (2013), https://thesedonaconference.org/download-pub/4816
mckirdyriskin.com @eminentdomainNJ | @NancyMyrland myrlandmarketing.com

6
RESOURCES
 California State Bar Standing Committee on Professional
Responsibility and Conduct Formal Op. No. 2016-196
(undated),
http://www.calbar.ca.gov/Portals/0/documents/ethics/Opinio
ns/CAL%202016-196%20[12-0006]%20Blogging.pdf
 District of Columbia Bar Legal Ethics Committee Op. 370
(Nov. 2016), https://www.dcbar.org/bar-resources/legal-
ethics/opinions/Ethics-Opinion-370.cfm
 District of Columbia Bar Legal Ethics Committee Op. 371
(Nov. 2016), https://www.dcbar.org/bar-resources/legal-
ethics/opinions/Ethics-Opinion-371.cfm

7
RESOURCES
• New York State Bar Association Committee on
Professional Ethics Op. 1131 (Aug. 8, 2017),
http://www.nysba.org/EthicsOpinion1131/
• New York State Bar Association Committee on
Professional Ethics Op. 1132 (Aug, 8, 2017),
http://www.nysba.org/EthicsOpinion1132/

RESOURCES
• Pennsylvania Bar Ass’n Formal Op. 2014-300 (Sept.
2014),
https://www.pabar.org/members/catalogs/Ethics%20Op
inions/formal/F2014-300.pdf (Pennsylvania Opinion)
8

INVESTIGATING PARTIES, WITNESSES
AND JURORS
• ABA Standing Comm. on Prof. Responsibility
Formal Op. 466 (Apr. 24, 2014)
• Pennsylvania Bar Ass’n Formal Op. 2014-300
(Sept. 2014)
• NYCLA Comm. on Prof. Ethics, Formal Op. No.
743 (May 18, 2011)
• Association of the Bar of the City of New York
Comm. on Prof. Ethics Formal Op. 2010-2
(Sept. 2010)
9

@NancyMyrland | #LMA18 |
myrlandmarketing.com |
thelawyersmarketingacademy.com

POSSIBLE BENEFITS
OF SOCIAL MEDIA
 Networking
 Relationship-Building
 Credentialing
 Exhibit Expertise & Knowledge

RAW NUMBERS
 500 million members
 70% outside of USA
 Users in 200 countries, in 24 languages
 1.5M LinkedIn Groups
 LinkedIn adds 2 new users every
second
 Profiles with photos get 21 more times
views

RAW NUMBERS
 Twitter has ~ 325 million accounts
 100 million active users per day
 79% of them outside the U.S.
 37% of users are between ages of 18 and 29
 500 million Tweets are sent every day
 Over 600 million search queries every day

RAW NUMBERS
 More than 2 billion members
 1.4 billion use it per day (1.1 billion of which
are mobile device daily users)
 Highest weekday use is 1-3 pm
 42% of marketers report that Facebook is
critical or important to their business
 4.75 billion pieces of content shared daily

RAW NUMBERS
 More than 1 billion members
 More than 50% of users are on mobile devices
 More than 30 million visitors per day
 You Tube on mobile alone reaches more users
ages 18-49 than any cable TV network
 300 hours of video are uploaded every
MINUTE
YouTube

The Model Rules of
Professional Conduct
The ABA Model Rules of Professional Conduct are
the basis for professional conduct rules for lawyers.
myrlandmarketing.com @eminentdomainNJ | @NancyMyrland myrlandmarketing.com

The ABA Model Rules of Professional Conduct
However…each state has its own version and
the ability to dictate how the ABA Model
Rules are interpreted.

Model Rule 7.4: Communication of Fields of Practice and Specialization

@NancyMyrland | #LMA18 | myrlandmarketing.com | thelawyersmarketingacademy.commckirdyriskin.com @eminentdomainNJ | @NancyMyrland myrlandmarketing.com

.

@NancyMyrland | #LMA18 | myrlandmarketing.com | thelawyersmarketingacademy.com

myrlandmarketing.com @NancyMyrland | #lmamkt thelawyersmarketingacademy.commckirdyriskin.com @eminentdomainNJ | @NancyMyrland myrlandmarketing.com

DISCOVERY OF SOCIAL MEDIA
Forman v. Henkin, 2018 N.Y. Slip Op.
01015 (Ct. App. 2018)
 Kelter v. Flanagan, No. 286 CIVIL 2017 (Ct.
C.P. Feb. 19, 2018)
55

PROTECTION OF ATTORNEY-CLIENT
PRIVILEGE, WORK PRODUCT AND
CONFIDENTIALITY
• Harleysville Ins. Co. v. Holding Funeral
Home, Inc., No. 15-cv-00057, 2017 WL
4368617 (W.D. Va. Oct. 2, 2017)
56mckirdyriskin.com @eminentdomainNJ | @NancyMyrland myrlandmarketing.com

ADMISSIBILITY OF
SOCIAL MEDIA
The “hurdles” to admissibility:
1.Is it relevant?
2.Is it authenticated?
3.Is it hearsay?
4.Is it an original?
5.Is there undue prejudice?

ADMISSIBILITY OF
SOCIAL MEDIA
• Commonwealth v. Mangel, 2018 PA Super
57 (2018)
• State v. Hannah, 448 N.J. Super. ___
(App. Div. ____)
• United States v. Browne, 834 F.3d 403
(3d Cir. 2016)

@NancyMyrland | #LMA18 | myrlandmarketing.com | thelawyersmarketingacademy.com

myrlandmarketing.com @NancyMyrland | #lmamkt thelawyersmarketingacademy.com

SCENARIO 1
ADVERTISING: When Does A Blog Cross the Line?
Stan is a family law practitioner with his own firm. Stan
spends a lot of time writing his blog about topics of
potential interest to other lawyers and persons who may
be interested in family law issues. Stan writes his blog
to demonstrate his knowledge about family law, enhance
his reputation, and increase his business. Each blog
entry includes a hyperlink to his firm web page and a
statement that if the reader has “any questions about
family law, you can contact me” at his office number.
His blog does not describe his practice or qualifications
and contains no overt statements of Stan’s availability
for professional employment. Is Stan’s blog a
communication subject to regulation?

SCENARIO 1
MRPC 7.1 provides that, “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 contains a material misrepresentation of fact or
law, or omits a fact necessary to make the statement considered as a
whole not materially misleading.”
All blogs maintained by an attorney must comply with this rule. The
question then becomes whether the post concerns the availability for
professional employment of the member and his firm.
MRPC 7.2 states that, “(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.”
The Comment on Rule 7.2 explains, “This Rule permits public
dissemination of information concerning a lawyer’s name or firm name,
address, email address, website, and telephone number; the kinds of
services the lawyer will undertake; the basis on which the lawyer’s fees are
determined, including prices for specific services and payment and credit
arrangements; a lawyer’s foreign language ability; names of references
and, with their consent, names of clients regularly represented; and other
information that might invite the attention of those seeking legal
assistance.”

SCENARIO 1
 MRPC 7.3 states:
(a) A lawyer shall not by in-person, live telephone or real-time electronic
contact solicit professional employment when a significant motive for the
lawyer’s doing so is the lawyer’s pecuniary gain, unless the person
contacted (1) is a lawyer; or (2) has a family, close personal, or prior
professional relationship with the lawyer.
 (b) A lawyer shall not solicit professional employment by written, recorded
or electronic communication or by in-person, telephone or real-time
electronic contact even when not otherwise prohibited by paragraph (a),
if: (1) the target of the solicitation has made known to the lawyer a desire
not to be solicited by the lawyer; or (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 and ending
of any recorded or electronic communication, unless the recipient of the
communication is a person specified in paragraphs (a)(1) or (a)(2).

SCENARIO 1
A blog that is a part of an attorneys or law firm’s professional website will
be subject to the rule regulating attorney advertising to the same extent as
the website of which it is a part. Even without words of invitation or offer,
a law firm’s professional website that includes a description of the
attorney’s law firm and its history and practice; the education, professional
experience and activities of the firm’s attorneys and other features relating
to the practice of law indicates the firm’s availability for professional
employment and is a communication.
“Warnings or cautionary statements on a lawyer’s website can be
designed to and may effectively limit, condition, or disclaims a lawyer’s
obligation to a website reader. Such warnings or statements may be
written so as to avoid a misunderstanding by the website visitor that (1) a
client-lawyer relationship has been created; (20) the visitor’s information
will be kept confidential; (3) legal advice has been given; or (4) the lawyer
will be prevented from representing an adverse party.” Formal Opinion
10-457

SCENARIO 2
Posting Results on Social Media:
You have just received a ruling following a
lengthy legal trial that you prevailed and
received a multi-million dollar verdict. In your
exuberance, you decide to share the news
and consider the following carefully drafted
alternatives:

SCENARIO 2
A.You grab your phone and tweet: “Just
prevailed with the Judge, I am the million dollar
baby today, join me for drinks at the Barka-
lounge.”
B. You update your Facebook page to say:
“Another victory today, the client is thrilled - -
Who wants to be next?”
C.You update your blog “check out this recently
published article on my killer verdict!”

SCENARIO 2
Material posted by an attorney on a social media
website will be subject to professional responsibility
rules and standards governing attorney advertising.
MRPC 7.2.
The restrictions imposed by the rules and standards
governing advertising are not relaxed merely because
such compliance might be more difficult or awkward in a
social media setting.
The MRPC apply to “written, recorded or electronic
communication” made “in-person, by telephone or real-
time electronic contact”. Thus, it would appear this
would apply to postings on Facebook or Twitter.
(California Formal Opinion 10-457).

SCENARIO 2
The question for determining whether a posting seeks to solicit professional employment
under MRPC 7.3 is whether “a significant motive for the lawyer’s doing so is the lawyer’s
pecuniary gain …,”.
First post: Standing alone it is not a solicitation for professional employment under
MRPC 7.3 because it is not a message or offer concerning the availability for professional
employment. Attorney status postings that simply announce recent victories without an
accompanying offer about the availability for professional employment generally will not
qualify as a solicitation for professional employment.
Second post: The statement, “Another victory” standing along is not a solicitation for
professional employment under MRPC 7.3 for the same reason. However the last part,
“Who wants to be next?” is such a communication as it infers availability for employment.
Since this constitutes a solicitation for employment, the statement, “Client is thrilled”
requires that the attorney first obtain informed consent from their client pursuant to
MRPC 1.6 in order to disclose this information. The disclosure on social media is not
being made to carry out the representation of a client, but to promote the lawyer.
(California Formal Opinion 10-457).
Third post: The posting is informational, but the motive for the lawyer’s posting is the
lawyer’s pecuniary gain.

SCENARIO 3
Social Media and Jurors: Research or Improper Contact
with Jurors?
Clara represents the City in an eminent domain action
involving the acquisition of a multi-family residential
property. Prior to commencing the jury voir dire, Clara is
given a list of the potential jurors. She notices that one
of the first twelve jurors has the same last name as the
property owner. Clara does a quick search on Facebook
of the first panel of jurors. Clara then asks her paralegal
to dig a little deeper into the juror with the same last
name as the property owner. The paralegal searches
Twitter and Linked In, and then sends a friend request on
Facebook to the potential juror.

SCENARIO 3
A. Clara will be deemed to have acted improperly
because her paralegal sent a friend request.
B. Clara property exercised her duty to investigate
potential jurors for bias.
C. Clara should not have asked her paralegal to look
at potential jurors Twitter and Linked In pages.
D. Clara cannot investigate jurors by looking at their
social media accounts.

SCENARIO 3
This scenario deals with the duty of competence and the prohibition on
communication with jurors.
MRPC 1.1 states, “A lawyer shall provide competent representation to a client.
Competent representation requires the legal knowledge, skill, thoroughness
and preparation reasonably necessary for the representation.”
Recent revisions to the ABA rule on competence requires lawyers to both
understand the basic features of technology and to be informed regarding the
risks and benefits associated with the use of relevant technology. MRPC 1.1,
comment 8.
The duty of competence may require lawyers to conduct an online investigation
of jurors, including looking at social media. To do that, lawyers must
understand how to utilize social media without violating prohibitions on
contacting jurors.
MRPC 3.5 precludes lawyers from communicating, directly or indirectly, with
anyone the lawyer knows to be a member of the jury venire or with any juror
during trial. Lawyers are also prohibited from directly or indirectly conducting
an out-of-court investigation of a juror or venire member in a manner likely to
influence the persons state of mind in connection with jury service.

SCENARIO 3
Do you, as a competent lawyer, you have a duty to conduct online research regarding
potential jurors? There are mixed opinions on this subject.
One court held that the trial judge should have permitted a lawyer to use his computer
to conduct research on the venire panel. Carino v. Muenzen (NJ Superior Ct. App.
Div. Aug. 30, 2010). However, in a different case where a juror concealed information
about her litigation history during questioning in the dire phase of the trial, the court
indicated that a party must use reasonable efforts to investigate juror’s litigation
backgrounds during jury selection, or prior to the jury’s being empaneled, and report
relevant information to the court. Johnson v. McCullough, 306. S.W.2d 551, 558-559
(Mo. 2010).
What is a lawyer to do? A passive review of a juror’s website or electronic social
media (“ESM”), that is available without making an access or friend request, and of
which the juror is unaware, does not violate MRPC 3.5. This is analogous to driving
down the street where the juror lives to see the general area. The act of observing
which is open to the public would not constitute a communicative act.
However, an access or friend request to the juror is a problem. It is an active review
of the juror’s ESM by the lawyer and is a communication to a juror asking the juror for
information that the juror has not made public. This is analogous to driving to the
juror’s house and asking for permission to take a look inside.

SCENARIO 3
MRPC 8.4(a) states that a lawyer may not do through the acts of another
what the lawyer is prohibited from doing directly. See also In re Myers,
584 S.E.2d 357 (S.C. 2003). A friend request is at least an indirect, and
therefore prohibited communication. Similarly, tweets to a juror, chats or
messaging would be prohibited.
A more complex situation is when viewing a person’s ESM leaves a record
of the visit. A juror can receive notice that particular persons have visited
their Linked In page, or receive a communication from the social media
service that, for an extra fee, the juror can see everyone who has visited
their site for a certain period of time.
ABA Formal Opinion 14-466 concluded that a lawyer who uses a shared
ESM platform to passively view juror ESM, does not communicate with the
juror. The lawyer is not communicating with the juror, the ESM service is
doing the communicating based on the technical feature of the ESM.
However, in this ever evolving environment, the lawyer has the duty of
competence and must keep up with the rules.

90
ANTHONY F. DELLAPELLE, CRE
Partner, McKirdy, Riskin, Olson & DellaPelle, P.C.
(975) 539-8900
ADellaPelle@mckirdyriskin.com
Twitter: twitter.com/eminentdomainNJ
Facebook: https://www.facebook.com/McKirdyRiskin
Website: www.mckirdyriskin.com
LinkedIn: https://www.linkedin.com/in/anthonydellapelle
NANCY MYRLAND, PRESIDENT
Myrland Marketing & Social Media
The Lawyer’s Marketing Academy (Online Courses)
(317) 370-9684
nancy@myrlandmarketing.com
Twitter: twitter.com/NancyMyrland
Facebook: https://www.facebook.com/NancyMyrland
LinkedIn: linkedin.com/in/NancyMyrland
Blog: www.myrlandmarketing.com
LinkedIn Tips : https://academy.myrlandmarketing.com/p/8Essentials

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