On June 27, 2014 the Professional Ethics Committee of the Florida Bar adopted Florida Ethics Opinion 87-11 (Reconsideration) to address changes to the Rules of Judicial Administration regarding electronic signatures. With the adoption of this Opinion, the Committee has deviated from the absolute prohibition on attorneys permitting nonlawyer employees to sign legal documents by effectively creating an exception, albeit a limited one. The Opinion permits a nonlawyer employee, under a lawyer’s supervision, to affix the lawyer’s signature on pleadings and documents, but only in electronic form using the “/s/,” “s/,” or “/s” formats.
Notwithstanding this amendment to the rule, the Committee cautions that although this limited delegation is permissible, lawyers still have a duty to “review and be responsible for the work product” as required by Rule 4-5.3(c). Click here to read Opinion 87-11 (Reconsideration).
Advising Clients on Social Media: Okay to “Clean Up” a Facebook Account? How About a Little More Privacy?
Information posted on social media websites has provided evidentiary fodder for many legal claims and raised controversial questions as to what a lawyer may advise a client regarding the removal and preservation of damaging information from a social media account.
The Philadelphia Bar Association’s Professional Guidance Committee recently analyzed these issues in a in which it concluded that an attorney may advise a client to change his privacy settings and may also advise the client to remove content, as long as the content is preserved so that it may be produced during litigation. The Philadelphia opinion concluded that it is not an ethical violation to advise the client to take action that renders the content more difficult to locate if the content is readily available to be produced in the event that the information is relevant and responsive to a discovery request.
The Committee reasoned that the rules of ethics do not bar an attorney from “instruct[ing] a client to delete information that may be damaging from the client’s page, but must take appropriate action to preserve the information in the event it should prove to be relevant and discoverable.” The Committee found this approach consistent with Pennsylvania’s Code of Professional Conduct Rule 3.4(a)’s prohibition against “unlawfully alter[ing], destroy[ing] or conceal[ing] a document or other material having potential evidentiary value.” The Committee based its finding that a lawyer can recommend a client to change the privacy settings on his or her’s Facebook page on the fact that changing a privacy setting does not destroy evidence; it only makes it more difficult for other parties to access this information. However, this information can still be obtained through discovery or subpoena.
Using the discovery process to obtain social media information that has been removed or secreted behind privacy settings becomes complicated, as the attorney seeking to compel such information must demonstrate its relevance to avoid the appearance of engaging in a fishing expedition. Without any insight from publicly posted information, proving relevance may be challenging. Read more on this dilemma here.
Philadelphia’s advisory opinion is consistent with social media guidelines issued in March 2014. Philadelphia and New York Bar Associations have been in the forefront of tackling the ethics issues arising in the digital age and although their opinions are advisory in nature, the opinions have provided guidance to courts and practitioners.
Florida’s Professional Ethics Committee is also considering social media evidentiary ethics issues and recently appointed a subcommittee to draft a proposed advisory opinion focused upon whether an attorney may advise a client as to appropriate privacy settings and to “clean up” a social media account prior to litigation. The advisory opinion is scheduled to be considered at its October 17th meeting.
According to Ethics Opinion No. 642 issued by the Texas Supreme Court Ethics Committee in May, law firms operating in Texas are no longer able to use “officer” or “principal” in job titles of non-lawyers. According to the opinion, the word “officer indicates that the person holding the title has the power to control the entire law firm (in the case of chief executive officer) or significant areas of the firm’s operations,” and “use of the term ‘principal’ for non-lawyer employees implies that the employees have an interest in the firm involving control, ownership, or both.”
According to the Texas Disciplinary Rules of Professional Conduct Rule 5.04, non-lawyers are prohibited from running a law firm or having control over the “professional judgment of a lawyer.” However, according to the Ethics Opinion, even firms that follow Rule 5.04 are still in violation of Rule 7.02 which states, “A lawyer shall not make or sponsor a false or misleading communication about the qualifications or the services of any lawyer or firm,” because the title of “principal” or officer” misleads the general public.
In response to this opinion, fifty-three of Texas’ largest law firms have signed a letter asking for a reversal of this opinion. Many Texas firms have non-lawyers working in positions such as “chief financial officer, chief technology officer and chief marketing officer.” The firms fear this opinion will have a detrimental effect on their ability to adequately serve the community. Many law firms attract people with top educational backgrounds and give them job titles reflecting their role: “A well-regarded firm searching for a CFO will attract candidates with excellent credentials and qualifications. That same firm searching for a Head Accountant will not. A firm searching for a Chief Technology Officer will be competing with other companies-not just law firms-for the best candidates. Those candidates seek the right title-CTO or CIO-and will understandably turn up their noses at lesser-titled positions. Ultimately, the Committee’s decision will degrade the quality of nonlegal professionals that are available to Texas law firms.” In addition, not having these titles would mean lawyers would have to serve in these roles, taking away time needed to adequately serve their clients
The letter signed by the fifty-three law firms discusses how the Ethics Opinion analyzed Rules 5.04 and 7.02 incorrectly. According to the letter, Rule 5.04 was meant, “to prevent nonlawyers form owning law firms or exercising professional control over the lawyers,” not for delegating job titles. The people hired with the title “officer” are not the kinds of officers the rule intends to prohibit. In response to violating 7.02, the letter states that the public is not being misled because there is a difference “between nonlawyer employees who interact with the firm’s clients (e.g paralegals, investigators, tax preparers), and those who do not because they are involved in the back-office management of the firm.”
The Texas Disciplinary Rules of Professional Conduct in addition to the ethics rules from many other states have restrictions designed to promote the accurate portrayal of lawyers such as the new Florida rules dealing with LinkedIn and Texas Rules 7.04(a) and (b) which discuss when lawyers can call themselves specialists. The purpose of these restrictions is for accurate information of the lawyers’ qualifications to be relayed. However, the issue of calling oneself a specialist when one is not seems more black and white than calling a non-lawyer an officer and principal. Specialists in in the legal field have specific meanings unlike “officers” or principals.” Calling a non-lawyer an “officer” does not necessarily mean the firm is inaccurately portraying the non-lawyer’s position because “courts have recognized, the term officer’ does not, by itself answer the question of whether an individual has management control over the company.” Courts have come to the conclusion “that the term ‘officer’ must be interpreted functionally, not mechanically.” As the letter recommends, the purpose behind the rules is what matters rather than a possible interpretation of the title “officer” or “principal.”
The detrimental effect of removing the terms “officer” or “principal” in the titles of non-lawyers far outweighs the slight possibility the public is misled about these job titles. The Texas Supreme Court Ethics Committee will reconsider Ethics Opinion No.642 at their next meeting this fall.
Click here to read more.
Ethics and Social Media Evidence: New York Issues Guidelines & Florida Contemplates an Advisory Opinion
The Commercial and Federal Litigation Section of the New York State Bar Association has developed a set of “Social Media Ethics Guidelines” that explain how ethics rules apply to lawyers’ use of social media networks. The guidelines are premised on the New York Rules of Professional Conduct and precedent from New York and other states.
While the guidelines are not meant to serve as a set of “best practices,” they will likely prove a valuable tool for lawyers wishing to be conversant with the nuances of social media networks and the implications of communication therein.
These guidelines are particularly significant, given that they represent the most comprehensive statements on the issues arising around social media evidence. For example, the advice that may be given to clients regarding additions and deletions to social media profiles with regard to anticipated and ongoing litigation.
While not binding, commentators anticipate that the guidelines will be used as a model by other states when fashioning their own policies. In fact, on June 27th, the Florida Bar’s Professional Ethics Committee is considering adopting a proposed advisory opinion that will address pre-litigation questions regarding spoliation and the issue of lawyers advising their clients to “clean up” their Facebook pages prior to litigation. It will be interesting to see how influential the New York guidelines will be in Florida and other jurisdictions.
A recent study, undertaken by Above the Law and Good2bSocial, demonstrates social media’s proliferation into the legal profession. The study included a review of the social media practices of several major law firms across numerous public platforms including LinkedIn, Facebook, Twitter, Google+, YouTube, and SlideShare.
The study assessed each firm’s publicly available substantive content, as well as its social reach and engagement, assigning a point value based on the number of followers, friends, likes and comments. Researchers then created a Social Law Firm Index, where they measured the specific uses that the social media practices were implemented for. The study identified that an astounding 90% of social media usage was conducted for marketing purposes.
The legal community’s growing interest in analyzing the effectiveness of firms’ use of social media highlights the growing awareness that social media plays a large part in a modern legal practice. The study is a positive step forward in generating best practices guidelines for law firms and individual lawyers to utilize social media in compliance with ethical advertising obligations.
On March 24, 2014, U.S. District Judge Denise Casper allowed a recent copyright claim against Xcentric, that was filed by Boston attorney Richard Goren, to survive. The claim alleged that Xcentric operates in an “unfair and deceptive manner” by offering to delete or redact negative postings for a fee. Xcentric operates Ripoff Report, which allows users to post free, un-moderated and uncorroborated complaints on a specific company or individual.
Goren’s case had an unusual journey to the federal court. First, he had to prevail against the Communications Decency Act, which gives website operators immunity from defamation claims for third-party posts. Goren persuaded a trial court in Massachusetts to assign him the copyright to the negative postings against him on Ripoff Report. As a result, Judge Casper found that there was a live dispute on who owns the posts’ copyrights as Xcentric asserts that they hold a U.S. copyright registration, which precedes the state court order giving rights to Goren.
In addition, Judge Casper also found a dispute arising from “whether the Ripoff Report site’s terms and conditions and language next to a check box that users must check before posting was enough to alert a user of Xcentric’s rights to user postings.” Does this case pave a new way for attorneys to own negative reviews posted by former clients? If so, what kind of ethical implications could this case create under Florida’s advertising rules?
The Illinois Supreme Court recently issued an order suspending an attorney for sixty days after faking an illness to avoid oral arguments before the 7th U.S. Circuit Court of Appeals. The order, which came on the heels of a scathing opinion by the 7th Circuit, also required the lawyer to pay $5,000 in restitution to his client’s mother, as well as to repay the state’s client protection fund for any payments made as a result of his conduct.
On the morning that oral arguments were scheduled to take place before the 7th Circuit, the lawyer called the clerk’s office and informed the clerk that he would not be appearing in court that day. The clerk subsequently attempted to contact the lawyer and notify him that his attendance was required, but the lawyer failed to respond. As a result, the arguments proceeded without the lawyer, and his client ultimately lost the appeal.
In the order to show cause, the Circuit Court requested that the lawyer supply medical documentation of his claimed illness, such as a certificate showing his admission to an emergency room. After failing to supply any such documentation, the lawyer admitted that he had feigned an illness because he felt unprepared to proceed. Concluding that the lawyer had acted unprofessionally, the 7th Circuit fined him $1,000 and stated that it would refrain from appointing him to any appeals under the Criminal Justice Act for 24 months. In doing so, the court acknowledged that, “[t]o leave a client unrepresented on the morning of oral argument is nothing short of appalling.”
Click here to read commentary on the suspension.