This document discusses the ethics of using social media for attorneys and law firms. It covers three main topics: 1) Marketing a law firm on social media and ensuring communications are not false or misleading. Testimonials must be reviewed and attorneys cannot direct message prospective clients. 2) Personal social media use by attorneys. Attorneys cannot reveal confidential client information or discuss cases. 3) How attorneys should handle social media in legal matters competently. This includes discovery requests, advising clients, and researching jurors or parties without improper contact. The overarching theme is that the rules of professional conduct still apply to attorneys' social media use.

1. THE ETHICS
OF SOCIAL MEDIA
Brian C. Focht
Stiles Byrum & Horne, LLP
www.thecyberadvocate.com

2. THE ETHICS OF SOCIAL MEDIA
$542,000

3. THE ETHICS OF SOCIAL MEDIA
Lester v. Allied Concrete Co., Nos. CL08-150, 09-223
In wrongful death case, plaintiff’s attorney routinely told
client to “clean up” his Facebook page
The “dirt” = photo of plaintiff, after wife’s death, holding a
beer and wearing a t-shirt reading “I [heart] hot moms.”
Plaintiff deactivated account, denied having a Facebook
page in discovery

4. THE ETHICS OF SOCIAL MEDIA
Lester v. Allied Concrete Co., Nos. CL08-150, 09-223
Result:
Attorney sanctioned $542,000
Plaintiff sanctioned $180,000
$10.6 million verdict cut in half

5. THE ETHICS OF SOCIAL MEDIA
Three Primary Topics:
1. Marketing your firm via Social Media
2. Personal use of Social Media by attorneys
3. Social Media & the Competent Lawyer

6. THE ETHICS OF SOCIAL MEDIA
One Essential Theme:
THE RULES STILL APPLY!

7. TYPES OF SOCIAL MEDIA
Collaborative Projects
Blogs & Microblogs
Content Communities
Social Networking Sites
(“SNS”)

8. THE ETHICS OF SOCIAL MEDIA
PART 1:
MARKETING YOUR FIRM VIA SOCIAL MEDIA

9. MARKETING YOUR FIRM VIA SOCIAL MEDIA
Situation: Blog/Social Media
Page/Post/Message
Applicable Rule(s): 7.1
To Comply: Cannot be false or misleading

10. MARKETING YOUR FIRM VIA SOCIAL MEDIA
Situation: A client posts a testimonial
Applicable Rule(s): 7.1 & 7.2; 2012 FEO 8
To Comply: Review every testimonial, edit
or remove where necessary/possible

11. MARKETING YOUR FIRM VIA SOCIAL MEDIA
Situation: Recommendations &
Endorsements
Applicable Rule(s): 7.1 & 7.2
To Comply: No astroturfing; must be based
on actual experience; NOT allowed from a
judge (Proposed 2014 FEO 8)

12. MARKETING YOUR FIRM VIA SOCIAL MEDIA
Situation: Direct messaging prospective
clients
Applicable Rule(s): 7.3
To Comply: Don’t do on Social Media what
you couldn’t do in person

13. MARKETING YOUR FIRM VIA SOCIAL MEDIA
Situation: Listing skills, experience,
practice areas
Applicable Rule(s): 7.4
To Comply: Don’t use “specialize;” be very
conscious of how your profile can be read

14. MARKETING YOUR FIRM VIA SOCIAL MEDIA
Situation: Responding to a disgruntled
client
Applicable Rule(s): 1.6 & 1.9
To Comply: Do not reveal confidential info;
do not disadvantage former client

15. MARKETING YOUR FIRM VIA SOCIAL MEDIA
Situation: Blogging/Posting about your
cases
Applicable Rule(s): 1.6, 1.9, 3.6
To Comply: Do not publish confidential
info; do not post comments that would be
unethical in a newspaper

16. MARKETING YOUR FIRM VIA SOCIAL MEDIA
Situation: Answering legal questions
Applicable Rule(s): 1.6 & 1.18
To Comply: Use a disclaimer; discourage
disclosure of confidential info

17. MARKETING YOUR FIRM VIA SOCIAL MEDIA
BEST PRACTICES:
1. Remember: THE RULES STILL APPLY
2. Understand your SM tools before using them
a) Reach, strengths, and weaknesses
b) Learn how to use them effectively
3. Create a Social Media Strategy for your firm
4. Name or hire a Social Media Manager

18. THE ETHICS OF SOCIAL MEDIA
PART 2:
PERSONAL USE OF SOCIAL MEDIA

19. PERSONAL USE OF SOCIAL MEDIA
The Story of Steven M. Regan, Real Estate Attorney
Partner at Reed Smith in Pittsburgh

20. PERSONAL USE OF SOCIAL MEDIA
The Story of Steven M. Regan, Real Estate Attorney
Partner at Reed Smith in Pittsburgh
Reed Smith Spokesperson:
“The posting of offensive commentary or language on
social media is inappropriate and inconsistent with Reed
Smith’s social media policy. We are addressing this matter
internally.”

21. PERSONAL USE OF SOCIAL MEDIA
Situation: Discussing your practice
Applicable Rule(s): 1.6, 1.9, 8.2 (among
others)
To Comply: Don’t reveal confidential info;
be careful when discussing court
proceedings or staff

22. PERSONAL USE OF SOCIAL MEDIA
Situation: Responding to legal questions
Applicable Rule(s): 1.1, 1.6, 1.18
To Comply: Don’t let the person on the
other end expect that you’re their attorney;
do no harm

23. PERSONAL USE OF SOCIAL MEDIA
Situation: Recommendations &
Endorsements
Applicable Rule(s): 7.4
To Comply: If you have no independent
basis, don’t do it!

24. PERSONAL USE OF SOCIAL MEDIA
Situation: Connecting with Judges
Applicable Rule(s): Proposed 2014 FEO 8
To Comply: If it’s allowed in person – it’s
allowed on LinkedIn.

25. MARKETING YOUR FIRM VIA SOCIAL MEDIA
BEST PRACTICES:
1. Remember: THE RULES STILL APPLY
2. To keep accounts completely personal, avoid
discussions of the law
3. If you wouldn’t post it on your firm’s Social Media,
don’t post it on yours

26. THE ETHICS OF SOCIAL MEDIA
PART 3:
SOCIAL MEDIA & THE COMPETENT ATTORNEY

27. SOCIAL MEDIA & THE COMPETENT ATTORNEY
Situation: Requesting Social Media in
discovery
Applicable Rule(s): 1.1, 3.4, 4.2, 5.1, 5.3
To Comply: Know when you should request
Social Media in discovery; refrain from
fishing expeditions

28. SOCIAL MEDIA & THE COMPETENT ATTORNEY
Situation: Responding to discovery requests
Applicable Rule(s): 1.1, 3.3, 3.4, 2014 FEO 5
To Comply: Produce relevant evidence;
defend clients from overbroad requests,
fishing expeditions.

29. SOCIAL MEDIA & THE COMPETENT ATTORNEY
Situation: Advice to new clients re: Social
Media
Applicable Rule(s): 1.1, 3.3, 3.4, 2014 FEO 5
To Comply: Ensure your clients retain
relevant evidence; instruct clients on
retention obligations

30. SOCIAL MEDIA & THE COMPETENT ATTORNEY
Situation: Utilizing Social Media to
investigate jury
Applicable Rule(s): 1.1, 3.3, 3.5, 3.6, 5.3
To Comply: Do not connect with or contact
jurors; use all reasonable means to
investigate

31. SOCIAL MEDIA & THE COMPETENT ATTORNEY
Situation: Social Media research on
party/witness
Applicable Rule(s): 1.1, 3.3, 4.2, 5.3
To Comply: No contact with represented
party; do not use any form of trickery or
dishonesty

32. SOCIAL MEDIA & THE COMPETENT ATTORNEY
Situation: Advising corporate clients
Applicable Rule(s): 1.1, 3.3
To Comply: Document retention policies
that comply with local law; legal
implications of new practices

33. SOCIAL MEDIA & THE COMPETENT ATTORNEY
BEST PRACTICES:
1. Remember: THE RULES STILL APPLY
2. Learn about Social Media, and how to use it – it’s the
best way to advise clients competently
3. Always do your due diligence.
4. Don’t do anything on Social Media you wouldn’t
want others to discover

34. IMPORTANT DEVELOPMENTS &
EMERGING ISSUES
Questions?
Comments?
Queries?
Concerns?

35. THE ETHICAL IMPLICATIONS
OF SOCIAL MEDIA
Brian C. Focht
Stiles, Byrum & Horne, LLP
bfocht@sbhlaw.net
www.thecyberadvocate.com