CLICK ON EACH FILE IN THE LEFT HAND COLUMN TO SEE INDIVIDUAL PRESENTATIONS.

If no column is present: click Bookmarks or Pages on the left side of the window.

If no icons are present: Click View, select Navigational Panels, and chose either Bookmarks or Pages.

If you need assistance or to register for the audio portion, please call Strafford customer service at 800-926-7926 ext. 10

Ethical Risks of Online Communications by Attorneys

Facebook, Twitter, Firm Websites and Blogs, and Email: Staying on the Right Side of the Ethics Line

presents

Today's panel features:Brett Trout, Member, Law Offices Of Brett J. Trout, Des Moines, Iowa

Mark J. Fucile, Partner, Fucile & Reising, Portland, Ore.Michael P. Downey, Partner, Hinshaw & Culbertson, St. Louis

Tuesday, December 1, 2009

The conference begins at:1 pm Eastern12 pm Central

11 am Mountain10 am Pacific

You can access the audio portion of the conference on the telephone or by using your computer's speakers.Please refer to the dial in/ log in instructions emailed to registrations.

A Live 90-Minute Teleconference/Webinar with Interactive Q&A

For CLE purposes, please let us know how many people are listening at your location by

• closing the notification box • and typing in the chat box your

company name and the number of attendees.

• Then click the blue icon beside the box to send.

Ethics of Online CommunicationsBrett Trout, Law Offices of Brett Trout, P.C.

Des Moines, Iowa

Mark Fucile, Fucile & Reising LLPPortland, Oregon

Michael Downey, Hinshaw & Culbertson LLPSt. Louis, Missouri

© 2009. For Educational Purposes Only

Overview of Ethics Rules

Bates v. State Bar of Arizona(1977)

Lawyer advertising is constitutionally protected speech

It cannot be totally banned but may have reasonable restrictions regarding “time, place, and manner” imposed

First Amendment Decisions• Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978), permitted a

state to ban in-person solicitation of personal injury and wrongful death cases

• Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985), held a state could not ban advertisements for specific types of claims

• Shapero v. Kentucky Bar Ass'n, 486 U.S. 466 (1988), rejects a complete ban on targeted solicitation letters

• Peel v. Attorney Registration & Discipline Committee of Illinois, 496 U.S. 91 (1990), allows a lawyer to truthfully state he is a member of National Board of Trial Advocacy

Central Hudson test1. The state may prohibit speech that is false,

deceptive or misleading.2. If the advertisement is truthful and non-

deceptive, the state may limit or restrict the advertisement if1. the state asserts a substantial governmental interest;

and2. The regulation under scrutiny directly advances that

state interest; and3. The regulation is a reasonable fit narrowly tailored to

achieve the desired objective.

Model Rules of Professional Conduct

• Rule 7.1 – prohibits false and misleading communications

• Rule 7.2 – time, place, manner restrictions on lawyer advertising

• Rule 7.3 – further limits on in-person and targeted solicitations

• Rule 7.4 – advertising fields of practice and specialties

• Rule 7.5 – firm names and letterhead

Central Hudson Test

1. Is the speech neither false nor misleading?

2. Are the state’s interests in limiting speech substantial?

3. Do challenged regulations advance that interest in a direct and material way?

4. Is the extent of restriction on the protected speech reasonably proportional to the interest served?

Model Rule 7.1A 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.

Model Rule 7.1 comment[2] Truthful statements that are misleading are also prohibited by this Rule. A truthful statement is misleading if it omits a fact necessary to make the lawyer's communication considered as a whole not materially misleading. A truthful statement is also misleading if there is a substantial likelihood that it will lead a reasonable person to formulate a specific conclusion about the lawyer or the lawyer's services for which there is no reasonable factual foundation.

[3] An advertisement that truthfully reports a lawyer's achievements on behalf of clients or former clients may be misleading if presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client's case. Similarly, an unsubstantiated comparison of the lawyer's services or fees with the services or fees of other lawyers may be misleading if presented with such specificity as would lead a reasonable person to conclude that the comparison can be substantiated. The inclusion of an appropriate disclaimer or qualifying language may preclude a finding that a statement is likely to create unjustified expectations or otherwise mislead a prospective client.

Model Rule 7.2

(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.

(b) A lawyer shall not give anything of value to a person for recommending the lawyer's services except that a lawyer may(1) pay the reasonable costs of advertisements or communications permitted by this Rule;

Model Rule 7.3(a) A lawyer shall not by in-person, live telephone or real-time electronic contact solicit professional employment from a prospective client when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain, unless . . . .

(b) A lawyer shall not solicit professional employment from a prospective client 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 . . .

Model Rule 7.4(a) A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law. (d) A lawyer shall not state or imply that a lawyer is certified as a specialist in a particular field of law, unless:

(1) the lawyer has been certified as a specialist by an organization that has been approved by an appropriate state authority or that has been accredited by the American Bar Association; and

(2) the name of the certifying organization is clearly identified in the communication.

Exceptions – Admiralty, Patent,Certification in some states

What is Social Media?

Why Use Social Media?

Ways to Use Social Media

• Listen• Learn• Give Back

Listen to

• Clients• Trends setters• Lawyers• Competitors• Detractors• Evangelists

Learn From

• Experts• Industry Leaders• Competitors• Clients

Give

• Insight• Legal Information• Blog posts• Videos• Freebies

Transparency vs.

Reputational Risk

Online Reputation Management

Define Your Law Firm on the Internet …

… Before the Internet Defines Your Law Firm

The Rules

• Be Transparent• Be Honest• Be Professional• Know Your State’s Rules• Follow the Rules• Stay Ahead of the Game

The Law

Federal (FTC) Position

• Only if untrue or deceptive• Loosen restrictions on lawyer

advertising• Overly broad restrictions

– Inhibits competition– Frustrates informed consumer choice– Increases fees paid

FTC

• December 1, 2009• New Guidelines

– Endorsements– Testimonials

State Laws

• Narrowly tailored to address a substantial government interest

• Often driven by state Bars• Drafted broadly• Enforced more narrowly

Iowa

• Home Page Paradox• Rule 32:7.2(a)(3)

– Reply to a request for information is not advertising

– Information available through a hyperlink on a lawyer’s Web site is not advertising

• Blogs typically clients’ first landing point

Kentucky

• SCR 3.130(7.05)(2) – Requires submission of Advertising– No fee if only specified information– Blog posts

• Still must submit• Appear to be exempt from payment if

legitimate journalism

New Jersey

• Rule of Professional Conduct 7.1(a)(3)

• Prohibited use of – Super Lawyer – AV-rated– Best Lawyers

• New Rule– Ok, but– “No aspect of this advertisement has

been approved by the Supreme Court.”

New York

• New Rules– Took effect February 1, 2007

• Declared unconstitutional – No endorsement of, or testimonial about,

a lawyer or law firm from a client with respect to a matter still pending

– No pop-up or pop-under advertisement, other than on the lawyer’s web site

Florida

• No reference to past results• No testimonials• Florida Bar told Joel B. Rothman,

could not use Avvo– Sued in federal court– Florida Bar backed down

• Avvo, LinkedIn, etc.

Recent Issues

Referral Services

• Connecticut - TotalBankruptcy.com• Rules of Professional Conduct 7.2

– Attorneys cannot pay for referrals • Attorneys argues advertising, not

referral• Fixed price per lead• Client has no control over selection• Exclusive territories

Criticizing the Court

• Lawyers do not have public’s right to criticize the court

• Fort Lauderdale, Florida• Sean Conway blogged about judge• “Evil, Unfair, Witch”• Reprimand and fine• Boost to Conway’s practice

Defamation

• Rick Frenkel - Patent Troll Tracker– Anonymous blogger– Cisco lawyer– Statements re dates on filings– Sued for defamation

• Confidential settlement– Court required proof of “actual malice”– After four days of testimony

Revealing Client Confidences

• Kristine Peshek– Denies all allegations

• Assistant public defender• “This stupid kid is taking the rap for

his drug-dealing dirtbag of an older brother because ‘he’s no snitch.’ ”

Assisting a criminal or fraudulent act

• Alleged in complaint against Peshek• Peshek blogged about client lying to

judge about being drug-free• Peshek denies wrongdoing

Other Allegations in Peshek

• Rule 1.2(g) failing to call upon a client to rectify a fraud that the client perpetrated on the court

• Rule 3.3(a)(2) failing to disclose to a tribunal a material fact known to the lawyer when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client

Other Allegations in Peshek

• Rule 8.4(a)(4) conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of ofthe Illinois Rules of Professional Conduct;

• Rule 8.4(a)(5) conduct that is prejudicial to the administration of justice

Other Allegations in Peshek

• Illinois Supreme Court Rule 770 conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute, in violation of

Lawyer as Juror

• Frank Wilson– Attorney– Juror in criminal case

• Posted details of case on his blog• Penalties

– 45 day suspension– $14,000 in legal fees– Lost his job

Judges

• Judge Alex Kozinski– Court of Appeals – 9th Circuit– Off-color humor– Cleared of wrongdoing– “Judicially imprudent” for not protecting

site

Lying to Judges

• Requested delay do to death in family

• Judge checked lawyer’s Facebookpage

• Judge declined second request• Judge informed senior partner

Other Issues

• Ex Parte Communications• Unauthorized Practice of Law• Admissions• Copyright• Trademark

Other Issues

• SEC Violations• Third-party contributions• Discovery• Streisand Effect

Do Not Give Legal Advice

Online

Thousands of Threats

Expect the Unexpected

Terms of Use

Privacy Policy

Employee Handbook• Acceptable/unacceptable conduct• Detailed Resolution Process • email policy – no expectation of

privacy• Internet Usage/Monitoring• Blogging/Social Networking Policy • Document Retention

Employee Handbook

• Data Security • Data Confidentiality • Non-compete • Termination Procedure• Exit Interview

Ways to Increase Your Risk

Making People

Livid

Moving Outside Your Area of Expertise

Ways to Reduce Your Risk

FutureTrends

Educate Yourself

Make Predictions

ETHICAL RISKS OFONLINE COMMUNICATIONS

BY ATTORNEYS:Email Communications

Strafford Publications National WebinarDecember 1, 2009

Mark J. FucileFucile & Reising LLP

mark@frllp.com503.224.4895

www.frllp.com

INTRODUCTION

1. Protecting confidentialitywhen communicating electronically

2. Avoiding “unintended”clients

PROTECTING CONFIDENTIALITY

► Ethical Framework

► Practical Solutions

► Practical Consequences

ETHICAL FRAMEWORK

► Competency—ABA Model Rule 1.1

► Confidentiality—ABA Model Rule 1.6

EVOLUTION OF THE LAW

► 1999: ABA Formal Ethics Op. 99-413

► 2002/03: ABA Updates Model Rules

► Today: State adoption of Model Rules

ABA FORMAL ETHICS OPINION99-413

► Emphasized federal law:♦ Electronic Communications Privacy Act

► Need to balance means with security

ABA UPDATES MODEL RULES

► Model Rule 1.6: Comments 16 & 17

► Emphasize duties of competencyand confidentiality

► Need to balance means with security

COMMENTS 16-17 TO ABA MODEL RULE 1.6

Acting Competently to Preserve Confidentiality[16] A lawyer must act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer's supervision. See Rules 1.1, 5.1 and 5.3.

[17] When transmitting a communication that includes information relating to the representation of a client, the lawyer must take reasonable precautions to prevent the information from coming into the hands of unintended recipients. This duty, however, does not require that the lawyer use special security measures if the method of communication affords a reasonable expectation of privacy. Special circumstances, however, may warrant special precautions. Factors to be considered in determining the reasonableness of the lawyer's expectation of confidentiality include the sensitivity of the information and the extent to which the privacy of the communication is protected by law or by a confidentiality agreement. A client may require the lawyer to implement special security measures not required by this Rule or may give informed consent to the use of a means of communication that would otherwise be prohibited by this Rule.

STATE ADOPTION

► Most states have adopted ABA Model Rules and comments

► Updated list available on ABA Center for Professional Responsibility’s web site atwww.abanet.org/cpr

PRACTICAL SOLUTIONS

► Focus on protecting confidentiality► Measures have to correspond to

the circumstances and the information involved

► Some solutions are technological► Many solutions rely on judgment &

communication

PRACTICAL CONSEQUENCES► Issues for bar discipline

► Civil claims♦ Claims for breach of fiduciary duty♦ Legal malpractice♦ Fee forfeiture

AVOIDING “UNINTENDED” CLIENTS

► ABA Model Rule 1.18:Duties to Prospective Clients

► Comment 2:Unsolicited Communications

COMMENT 2 TO ABA MODEL RULE 1.18

[2] Not all persons who communicate information to a lawyer are entitled to protection under this Rule. A person who communicates information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship, is not a "prospective client" within the meaning of paragraph (a).

STATE LAW CONTROLS

► RPCs don’t control whether an attorney-client relationship exists

► Controlled by state law

► Most require subjective belief by the client and objective reasonableness of that belief

PRACTICAL SOLUTIONS

► Technological♦ “Pop-up” warnings♦ Web site disclaimers

► Common sense communications

PRACTICAL CONSEQUENCES

► Conflicts

► Duties to nonclients

► Example:Barton v. U.S. District Court,410 F.3d 1104 (9th Cir. 2005)

Thank You

Brett TroutLaw Offices Of Brett J. Trout, P.C.Des Moines, Iowa(515) 288.9263Trout@BrettTrout.com

Mark FucileFucile & Reising LLPPortland, Oregon(503) 224.4895Mark@frllp.com

Michael DowneyHinshaw & Culbertson LLPSt. Louis, Missouri (314) 241‐2600mdowney@hinshawlaw.com