On June 25th, The Florida Professional Ethics Committee affirmed, with some modifications, its January proposed opinion regarding advising a client about removing social media posts prior to litigation and changing privacy settings. Florida joins several other states in addressing the issue of social media posts that are potential evidence in reasonably forseeable litigation.
Two of the key take aways from the opinion:
“The committee is of the opinion that the general obligation of competence may require [an attorney] to advise the client regarding removal of relevant information from the client’s social media pages, including whether removal would violate any legal duties regarding preservation of 109 evidence, regardless of the privacy settings.”
An attorney, “may advise that a client change privacy settings on the client’s social media pages so that they are not publicly accessible. Provided that there is no violation of the rules or substantive law pertaining to the preservation and/or spoliation of evidence, the [attorney] also may advise that a client remove information relevant to the foreseeable proceeding from social media pages as long as the social media information or data is preserved.”
To read the opinion, click here.
California: An Attorney Must Maintain Client Confidentiality Regardless of Whether Information is Publically Available
The State Bar of California’s ethics committee released Formal Opinion Interim No. 13-0005, a proposed opinion stating that lawyers may not disclose embarrassing or detrimental information learned in the course of representing a client even if the information is publically available. The opinion emphasizes that the duty of confidentiality is broader than the attorney-client privilege and continues to apply after the attorney-client relationship ends.
New York Releases Guidance for Attorneys’ Use of Social Media to Offer Service & Communicate with Potential Client
Attorneys in New York may use social media to communicate with potential clients. The New York State Bar Ethics Committee released an opinion on March 2 advising that attorneys may respond to a potential client’s request on a website seeking counsel and that attorneys may offer services to potential clients through email or social websites, such as Twitter and Reddit.
If an individual asks an attorney for a response to a specific problem, and requests to be contacted by the attorney, the attorney may communicate with the individual. However, attorneys must be aware of the rules pertaining to solicitation and general attorney advertising. The opinion noted that when an attorney does not initiate the communication, then a specific response to an individual’s specific problem does not constitute a solicitation. Additionally, if the attorney only discusses the individual’s legal problem and not the attorney’s services with the goal of retaining the client, then the reply does not constitute advertising.
Additionally, the opinion advised that attorneys may post on a website, such as Twitter or Reddit, to solicit potential clients, but such a post does constitute a solicitation and must abide by the attorney advertising rules. For example, a post may not relate to a specific incident involving either a personal injury or wrongful death claim until the end of the thirty-day blackout period provided by the rules.
To read the full opinion, click here.
In an opinion released in late April, the U.S. Supreme Court voted 5-4 to uphold Florida’s ban on judicial candidates’ personal solicitation for campaign contributions. Justice Roberts noted that regulations on judicial candidate fundraising can be stricter than regulations on legislative and executive fundraising because of the judiciary’s unique role that gives rise to the state’s interest in promoting public confidence in the judiciary’s integrity.
The case of Williams-Yulee v. The Florida Bar reached the Supreme Court on appeal by a Tampa attorney, Lanell Williams-Yulee, who the Florida Bar reprimanded for directly soliciting judicial campaign contributions in 2009. Williams-Yulee had posted a letter online and distributed the letter “via mass mailing”. The Florida Bar prosecuted Williams-Yulee for violating Florida’s Rule of Professional Conduct 4-8.2, which requires attorneys who are candidates for judicial office to follow Florida’s Code of Judicial Conduct. Florida Judicial Canon 7C(1) prohibits personal solicitations and requires the creation of a committee to seek such campaign contributions.
The opinion is important across the country because 30 states have judicial campaign fundraising regulations similar to Florida’s.
The Florida Bar Committee on Advertising voted 6-1 to answer the texting question by defining a law firm’s proposed texting campaign as impermissible solicitation analogous to inappropriate phone calling or telemarketing to attract clients. The law firm’s position is that texting is similar to direct mail or email advertising, which is permissible if done in accordance with the Florida Bar’s rule on direct mail advertising. The firm plans to appeal the Committee’s decision to the Florida Bar Board of Governors. Stay tuned as technology strikes the advertising rules again! Read more here.
Although email has become a common means of communicating among lawyers and their clients, questions about its viability are once again being addressed as a result of increased incidences of hacking and NSA surveillance. The Texas Professional Ethics Committee recently released an opinion in which it reinforces the reasonable use of email by lawyers when communicating confidential information, but acknowledges the implications of current technology. The opinion cautions that there are certain situations in which an attorney should consider the nature of the confidential information and whether email should be encrypted or may not be a reasonable means of communication. The opinion provides the following examples:
1. communicating highly sensitive or confidential information via email or unencrypted email connections;
2. sending an email to or from an account that the email sender or recipient shares with others;
3. sending an email to a client when it is possible that a third person (such as a spouse in a divorce case) knows the password to the email account, or to an individual client at that client’s work email account, especially if the email relates to a client’s employment dispute with his employer (see ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 11-459 (2011));
4. sending an email from a public computer or a borrowed computer or where the lawyer knows that the emails the lawyer sends are being read on a public or borrowed computer or on an unsecure network;
5. sending an email if the lawyer knows that the email recipient is accessing the email on devices that are potentially accessible to third persons or are not protected by a password; or
6. sending an email if the lawyer is concerned that the NSA or other law enforcement agency may read the lawyer’s email communication, with or without a warrant.
The opinion suggests that in the event that any of these circumstances are present then the lawyer should discuss the risks of email communication containing confidential information with his client and either obtain consent or decide upon another means of communication.
To read the opinion click here.
On March 10, 2015, the New York County Lawyers Association Professional Ethics Committee released Formal Opinion 748 addressing the ethical implications of attorney profiles on LinkedIn—a professional networking website. LinkedIn allows users to connect with other users, providing them access to their respective profiles and information that may otherwise be private depending on the individual user’s settings. LinkedIn also allows users to control the information displayed on their profile, which may be objective, such as educational background and work experience, as well as subjective, such as skills, recommendations, and endorsements.
Because of the various profile options and privacy settings available, confusion has arisen with respect to how attorneys should properly fill out and operate their LinkedIn accounts. As such, the committee chose to clarify three questions:
- Whether a LinkedIn profile is considered “Attorney Advertising”;
- When it is appropriate for an attorney to accept endorsements and recommendations; and
- Information attorneys should include (and exclude) from their LinkedIn profiles to ensure compliance with the New York Rules of Professional Conduct.
The committee determined that attorneys may maintain profiles on LinkedIn, “containing information such as education, work history, areas of practice, skills and recommendations written by other…users.” If, however, an attorney includes additional information, such as specific skills or endorsements, it may be considered Attorney Advertising and is therefore subject to the provisions in Rule 7.1. Moreover, according to Rule 7.4, attorneys may not list information about their “skills or practice areas” under headings labeled “Specialties,” but may otherwise list them under the headings “Skills” or “Endorsements.”
Furthermore, relying on Pennsylvania Formal Ethics Op. 2014-300, the committee noted that “attorneys must ensure that all information in their LinkedIn profiles is truthful and not misleading, including endorsements and recommendations by other LinkedIn users.” If the information is not accurate, it should be excluded from the attorney’s profile. Ultimately, New York lawyers should regularly monitor and review the content of their LinkedIn profiles to avoid potential ethical violations.
We previously reported on the NYCLA opinion in our post on attorney endorsements. To read that post click here.