NAVIGATING THE SOCIAL MEDIA MINEFIELD

COYT R. JOHNSTON, JR. Johnston Tobey, P.C.

3308 Oak Grove Avenue Dallas, Texas 75204

(214) 741-6260 www.johnstontobey.com

SEAN T. HAMADA

Carter Stafford Arnett Hamada & Mockler, PLLC Campbell Centre II

8150 N. Central Expressway, Ste. 1950 Dallas, Texas 75206

(214) 550-8188 www.carterstafford.com

Co-Author:

RACHANY T. SON Law Clerk

Carter Stafford Arnett Hamada & Mockler, PLLC

State Bar of Texas ESSENTIALS OF BUSINESS LAW 2013

March 14-15, 2013 Dallas

 CHAPTER 7

JOHNSTON ♦ TOBEY, P.C.

A Professional Corporation

Coyt Johnston is a shareholder at Johnston Tobey, P.C. in Dallas, Texas. His practice could

best be described as plaintiff’s professional negligence with an emphasis on legal malpractice. While legal malpractice is the firms primary practice, he also handles accounting malpractice, stockbrocker securities cases, and legal ethics related matters, along with some business litigation.

Among other things, Coyt has selected jurrors and tried legal malpractice cases to verdict.

He has pursued and defended other lawyers on sanction related matters in both state and federal court. Coyt Johnston has practiced law for 5 years, but has spent his entire life becoming the lawyer that he is. As a child, Coyt’s father, Randy Johnston, would take Coyt to trials and use him to read the jury. These experiences not only shaped Coyt’s trial skills, but helped develop the way Coyt approaches and and solves client’s problems.

Coyt s has interviewed more than a thousand potential new clients and evaluated their

claims. This experience of directly communicating with potential clients has had a profound impact on Coyt’s ability to relate to and communicate with clients and potential clients.

Professional Memberships and Distinctions:

Coyt is a member of the State Bar of Texas, State Bar College, United States

Supreme Court Bar, the Dallas Bar Association, the American Bar Association, the Dallas Trial Lawyers’ Association, The Texas Trial Lawyers’ Association, the Dallas Association of Young Lawyers, the Texas Association of Young Lawyers, and the Higginbotham Inn of Court (2009), and is a trial college fellow of the American Board of Trial Advocates.

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TABLE OF CONTENTS

I. INTRODUCTION ................................................................................................................................................... 1

II. OVERVIEW ........................................................................................................................................................... 1

III. POPULAR SOCIAL MEDIA ................................................................................................................................. 1 A. Facebook™...................................................................................................................................................... 1 B. Twitter™ ......................................................................................................................................................... 2 C. LinkedIn™ ...................................................................................................................................................... 2 D. Other ................................................................................................................................................................ 2

IV. SOCIAL MEDIA AND COMMUNICATIONS ..................................................................................................... 2 A. Ex Parte Communications ............................................................................................................................... 2 B. Extrajudicial Statements .................................................................................................................................. 3 C. Attorney Client Communications .................................................................................................................... 3

V. SOCIAL MEDIA AND ADVERTISING ................................................................................................................ 4 A. Filing Requirements ........................................................................................................................................ 4 B. Content ............................................................................................................................................................ 4 C. Sponsoring ....................................................................................................................................................... 5

Vi. CONCLUSION ....................................................................................................................................................... 5

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NAVIGATING THE SOCIAL MEDIA MINEFIELD

I. INTRODUCTION Let’s face it, we live in a world where social media has infiltrated virtually every aspect of our lives. Terms like friending, liking, poking, tweeting, re-tweeting, tagging, status updates, hashtags, and blogging have become as common as email, text messaging or websites. Over the fairly recent past, the use and popularity of social media has spread like wildfire. While Facebook™ leads the way with one billion monthly active users1, Twitter™, LinkedIn™, and the like are not trailing far behind.

The primary purpose of social media is to allow users to digitally connect their lives, thoughts, and experiences to other people. And, the advancements in technology allow such connections, with very little and sometimes no effort or even involvement from the user.

While social media makes it frighteningly easy to network and form these connections with other people, for the practicing lawyer, it is important to remember that these “other people,” with whom social media connects us, include lawyers, judges, jurors, clients, and potential clients, making these platforms potential land mines waiting to be triggered by the unsuspecting casual user.

This article serves to explore the complex issues that have arisen in the face of evolving technology and discusses the Texas Disciplinary Rules of Professional Conduct (TDRPC) that are implicated as a result of these changes.

II. OVERVIEW

Early on, we learn about attorney-client privilege and confidentiality and that there are things that we cannot tell anyone, even our spouse or parents. So, we have learned to filter what we say. We use one filter when speaking with opposing counsel, and another filter when speaking with a judge, and yet another filter when speaking with a jury. Lawyers have become very efficient at compartmentalizing their communications and then applying the appropriate filter to such communication. Fortunately, it is a skill that most of us have learned very quickly.

One of the difficulties inherent to social media is that it blurs the lines between traditional methods of communication. Gone are the days where we could

1 Facebook, Key Facts, http://newsroom.fb.com/Key-Facts (last visited Jan. 28, 2013).

easily classify our communications by audience and purpose and then simply adjust the method and content to ethically acceptable standards.

One problem is that easy and instant qualities of social media communications result in a very casual approach. Another problem is that the interconnected qualities of social media results in the users often not understanding how and to whom their communications are being delivered.

In order to navigate through the ethical minefield created by social media, a lawyer needs to consider: (1) who will receive the communication; (2) the content of the communication; and (3) the medium of delivery.

III. POPULAR SOCIAL MEDIA A. Facebook As evidenced by the statistics, Facebook is one of the most popular social media platforms currently in use. Founded in 2004 as a networking website for college students, Facebook is now available to anyone 13 years of age or older.2 Its mission is to allow its users to stay connected with friends and family and to share what is important to them.3

Facebook has various functions that facilitate online sharing and connectivity. Facebook users have a profile that they have the ability to customize. This profile allows the user a platform with which they could find and be found, connect with, friend, message, and email other users. They could share photos, videos, and even files through Facebook. And, they could do so privately through a message or closed group, or publicly through Wall4 post, status update, or public group.

While Facebook started out as a way to stay connected to casual friends, it has taken the commercial advertising market (or perhaps the commercial advertising market has taken it) by storm. In the past few years, virtually every business has created a Facebook page. Many of these “commercial” pages are completely open to the public and have no privacy restrictions whatsoever.

This advertising trend is not surprising due to the fact that creating such a page is free, and the potential for exposure is great due to the number of users.

2 Id.; Facebook, What is the Minimum Age Required to Sign Up for Facebook?, http://www.facebook.com/help/210644045634222/ (last visited Jan. 28, 2013). 3 Key Facts, supra note 1. 4 A wall is the portion of a user’s profile that functions akin to an online bulletin board upon which users can post comments, pictures, or videos.

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B. Twitter™ Although Twitter does not boast the same

numbers of active users as Facebook, this form of social media is still used by over 200 million monthly active users.5 It is considered a microblogging website that allows its users to post frequent text updates through tweets in 140 characters or less.6

Facebook has a similar feature that allows its users to post status updates. However, Twitter’s version of this feature is often preferred since it requires its users to be brief and allows them to interact with anyone through the use of hashtags.

Twitter uses followers similar to how Facebook uses friends. One Twitter account holder can follow another account holder. Following is similar to a mini subscription to that person’s tweets. The followers will automatically be notified when the account holder tweets. They will also be notified when someone else tweets mentioning the followed account. Tweets can also be re-tweeted by other users. The process of re-tweeting occurs when people tweet someone else’s tweet to their own followers. As a result, this process can result in a single tweet posting to millions of accounts in a very short period of time.

Each user has the ability to restrict access to their profiles so that only approved followers can post or see their tweets. Most Twitter accounts do not use the privacy settings, as account holders want as many followers as possible. A large number of followers are often treated as bragging rights for the account holder. Furthermore, Twitter accounts are often linked to websites and other social media platforms to promote business and advertising exposure.

C. LinkedIn™ Commonly described as a self-updating Rolodex, LinkedIn is primarily used for industry networking and coworker networking. 7 This form of social media allows professionals to market themselves and generate business by posting what is essentially an online resume for each user. With over 200 million users worldwide, LinkedIn is so popular that it claims executives from every Fortune 500 company to be

5 Matt Egan, Twitter Hits 200M Monthly Active Users, FOX BUSINESS, Dec. 18, 2009, http://www.foxbusiness.com/technology/2012/12/18/twitter-hits-200m-monthly-active-users/. 6 Twitter, About Twitter, https://twitter.com/about (last visited Jan. 28, 2013). 7 Susan Gunelius, Study Reveals How Professionals Use LinkedIn, FORBES, Aug. 9, 2011, http://www.forbes.com/sites/work-in-progress/2011/08/09/study-reveals-how-professionals-use-linkedin/.

among its user base.8 Like Facebook and Twitter, these profiles can either be restricted to connections or open to the public, but even restricted profiles have some redacted public exposure.

Recently, LinkedIn added a new feature called “Endorsements.” This allows users to endorse the skills of other users and to post a comment about the person or their skills. These endorsements are displayed on that user’s LinkedIn profile.

D. Other With the development of these various social media platforms also comes greater knowledge as a result of larger networks. More specifically, it has become much easier for potential clients to find a lawyer. They could ask their family, friends, or other connections for a reference. Or, in the case that this turns out to be unsuccessful, they could turn to websites like Avvo™, which rate lawyers.

Websites like Avvo, while not “social media” in the same sense as Facebook, Twitter, or LinkedIn, consolidate information on lawyers such as experience, background, and, disciplinary reviews. Avvo, in particular, also allows clients to rate the lawyers. However, like the previously discussed social media platforms, websites like Avvo also generate issues that may set off a mine and form the basis for several violations of the TDRPC.

IV. SOCIAL MEDIA AND COMMUNICATIONS A. Ex Parte Communications

Unlike all other tools of communication, social media puts practicing lawyers and judicial officials at risk of unintentionally engaging in an improper ex parte communications and violating the ethical rules. In this context, TDRPC Rule 8.04(6) and Texas Code of Judicial Conduct (TCJC) Canon 3B(8) would be implicated. TDRPC Rule 8.04(6) prohibits a lawyer from communicating with a judge or judicial official in such a manner that causes them to violate the rules of judicial conduct. TCJC Canon 3B(8) is a rule of judicial conduct which prohibits ex parte communications with such officials. The rule specifically states,

“A judge shall not initiate, permit, or consider ex parte communications or other communications made to the judge outside the presence of the parties between the judge and a party, an attorney, a guardian or attorney ad litem, an alternative dispute resolution neutral, or any other court appointee concerning the merits of a pending or impending judicial proceeding.”

8 LinkedIn, Company, http://www.linkedin.com/company/linkedin (last visited Jan. 28, 2013).

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As such, improper ex parte communications with such officials are expressly prohibited.

Social media can create several issues in this regard. Consider the following scenario: Lawyer Mick Haller has friended several judges on Facebook, including Judge Fullbright. Mick has a trial in front of Judge Fulbright. After the first day of trial, he posts on Facebook as a status update, “Long day in court. Defendant’s case is a house of cards.” Mick’s post was not restricted to a particular group of people but was accessible to all his friends, including Judge Fullbright. Shortly afterward, Judge Fullbright logs onto Facebook and sees Mick’s post at the top of his Newsfeed. This situation clearly violates TDRPC Rule 8.04(6) and TCJC Canon 3B(8) (as well as a number of other rules that fall beyond the scope of this article). It is clearly a communication made to Judge Fullbright outside the presence of the parties and concerning the merits of Mick’s trial.

Consider the same scenario except where Mick posted his comment on Twitter instead of Facebook: Mick knows that Judge Fullbright is not one of Mick’s followers on Twitter and Mick’s Twitter is not accessible to anyone beyond his subscribers, which is why he posted it on Twitter instead of Facebook. However, Mick has forgotten that his Twitter updates are also linked to his Facebook and posted to his wall. In this instance, Judge Fullbright also happens to see his Twitter post on his Newsfeed when he logs onto Facebook. Like the previous scenario, this is also a violation of both TDRPC Rule 8.04(6) and TCJC Canon 3B(8). The comment, while directed at his friends, also includes Judge Fullbright, thereby constituting an ex parte communication.

In another scenario, suppose Mick and Judge Fullbright were photographed at Bench Bar together. The photo was posted on Facebook several months before Mick’s trial in front of Judge Fullbright. However, Mick’s friend, Frank posts a comment underneath Mick and Judge Fullbright’s photo on the first day of Mick’s trial, “What a great picture! Don’t you have a trial in front of him soon? I know for a fact the key witness for the other side has defrauded someone before.” Judge Fullbright, being tagged in the photo, sees this comment when he logs onto Facebook at the end of the first day of trial.

Here, the comments are completely outside of Mick’s control. However, it still falls directly within the rules as an ex parte communication. What can be done about situations like this? Unfortunately, beyond being hyper vigilant and carefully monitoring these accounts, it is difficult to prevent events like this from occurring. As such, it is incumbent upon lawyers to carefully consider their audience, the medium, and the

content of their message before using social media to share their thoughts regarding a client or case. B. Extrajudicial Statements

Lawyers should also be careful since such comments could be considered extrajudicial statements. TDRPC Rule 3.07 states that “[i]n the course of representing a client, a lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicatory proceeding.”

Consider the Twitter scenario mentioned previously. If Mick’s Twitter account was not limited to his followers but was public, this would constitute a violation of TDRPC Rule 3.07. There is a substantial likelihood that Mick’s statement would materially prejudice his trial. This would extend to Facebook as well, especially if his updates are public.

However, consider the scenario that Mick’s Twitter or Facebook is not public but he is nondiscriminatory in who can follow him and whom he follows or is friends with. In other words, while his accounts are not public based on the settings alone, Mick connects with and friends anyone and everyone. If Mick made any statements akin to those mentioned in the first two scenarios, would this run afoul of rule 3.07? This scenario arguably falls within a gray area. On one hand, there is a strong argument that Mick’s accounts are public based on his actions and that any statements he makes are thus also public. On the other hand, there remains an argument that while Mick is nondiscriminatory in providing access to his accounts, it is still not public in the traditional sense since it requires someone to request to follow him or friend request him first. Rather than trying to figure out where the line is, it may be more prudent to try to avoid these situations altogether. As such, a lawyer should be careful about whom to accept within his social media circles. C. Attorney Client Communications Social media also creates issues with attorney client communication. For attorney client privilege to apply, there must be no intent to disclose the communication to third persons.9 This is a significant issue in relation to social media.

9 Rule 503(a)(5) of the Texas Rules of Evidence only protects communications as confidential “if not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.” TEX. R. CIV. EVID. 503(a)(5).

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Consider the following situation: an employee fell from a ladder at work while attempting to get some boxes down. He remembers that a high school acquaintance is now a lawyer and decides to contact him through Facebook. He posts, “Hi Joe, it’s been a while. I was wondering if you could help me with something. I was getting some files down from the top shelf at work and fell because the ladder gave out. The office manager knew the ladder was broken and told everyone he was going to replace it a few weeks ago. My boss wants me sign a statement about what happened before they will pay my medical. I’m nervous about signing anything. And I know that I can get a few of my work buddies to testify for me. Can you help me?” In this situation, the employee’s statement would not be protected by attorney client privilege since it was shared on Joe’s wall. Furthermore, while Facebook has a feature that allows approval of tags, there is no such feature when it comes to wall posts. Like the last scenario, this situation is not entirely within the lawyer’s control. While social media facilitates communication, the ease with which communication can occur may be detrimental in similar instances. As such, lawyers should be cognizant of what is posted on their profiles in addition to what they post themselves. V. SOCIAL MEDIA AND ADVERTISING Navigating the social media minefield is especially difficult when Part VII of the TDRPC is involved. Each rule has various implications in the social media context. A. Filing Requirements TDRPC Rule 7.07 requires that public advertisements and written, recorded, electronic, or other digital solicitations be filed with the Advertising Review Committee before or concurrently with the first dissemination. Comment 8 specifically requires that information that might invite the attention of those seeking legal assistance be truthful. As such, although not specifically exempt under the language of TDRPC Rule 7.07, Comment 8 allows employment history to be provided in a lawyer’s LinkedIn profile since it is truthful. The same is true, where social media profiles only contain the information identified in TDRPC Rule 7.07(e) (e.g., a lawyer’s name, office address, phone number, bar admission date, foreign language ability, etc.), they are exempt from filing requirements. Additional support for social media exemptions from filing requirements is also found in Comment 6 to TDRPC Rule 7.04, which regulates advertisements. It states, “communications need not be filed at all if they were not prepared to secure paid professional employment.” This argument is more likely to stand

where a lawyer’s profile is only accessible to close friends and family. To illustrate this, if Tom Hagen’s Facebook or LinkedIn profile contained information regarding his representation of the Mafia and lists all of his successes as a lawyer, it may no longer fall under the TDRPC Rule 7.07(e) exemption but will be subject to filing requirements as an advertisement. Such information, while true, is prepared in such a way that would give the appearance that Tom is attempting to secure paid professional employment. Therefore, lawyers should be extremely careful about what is included on their social media accounts, especially if it includes information beyond what is identified in TDRPC Rule 7.07(e).

Similarly, what about a firm that has a group page on Facebook or LinkedIn? Arguably, these websites are similar to a lawyer’s website and is subject to the filing requirements under TDRPC Rule 7.07. Furthermore, if the page is generally available to the public, Comment 17C suggests that such websites are advertisements and must be filed with the Advertising Review Committee.

Where there is doubt as to whether a profile or page constitutes an advertisement, submitting it for pre-approval will make a finding of compliance binding in the lawyer’s favor under TDRPC Rule 7.07(d). Nevertheless, substantive changes to advertisements require re-filing with the Advertising Review Committee under TDRPC Rule 7.07. This means that depending on what is added or removed from a lawyer’s social media account, where these profiles were previously filed with the Advertising Review Committee, the lawyer may have to re-file these profiles with the Committee. What about Texas Bar Circle? It is important to note that unlike the other popular forms of social media, Texas Bar Circle is restricted to members of the State Bar. TDRPC Rule 7.04(a)(3) allows lawyers to distribute their availability and other publications to other lawyers for use in legal directories and newspapers. As such, lawyers are provided more flexibility in regards to Texas Bar Circle than to other forms of social media.

B. Content As previously discussed, TDRPC Rule 7.04 regulates the content of advertisements. TDRPC Rule 7.04(b)(2) expressly prohibits a lawyer from advertising specialization without an appropriate certification from the Texas Board of Legal Specialization (TBLS) or from an organization accredited by TBLS. As such, the Specialties section of LinkedIn should be left blank unless the lawyer obtains the requisite certification.

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Technically, Super Lawyers™ is not a TBLS certified specialization. Any reference to it on a lawyer’s website raises the question of whether it may be a violation of the rule. However, the Advertising Review Committee has approved various websites that contain references to the lawyer being recognized within Super Lawyers. While this does not excuse a violation of the rules, pre-approval creates a finding of compliance binding in the lawyer’s favor under TDRPC Rule 7.07. Furthermore, TDRPC Rule 7.01 prohibits a lawyer from practicing or advertising under a trade name or a fictitious name. As such, the tech-savvy lawyers that already have Facebook group pages and LinkedIn pages for their firms may want to check to see if it uses any improper trade names. Examples of improper trade names for lawyers in private practice include “The People’s Firm” and “Debt Relief Clinic.” C. Sponsoring Lawyers should also be attentive about what they sponsor. Under TDRPC Rule 7.02, a lawyer is prohibited from creating or sponsoring false or misleading communications about a lawyer’s qualifications or services. As such, the Skills portion of a lawyer’s LinkedIn profile containing endorsements could be problematic, especially if they contain endorsements regarding the lawyer’s legal skills from non-clients. That means that those skills endorsements from a lawyer’s non-client mother regarding his civil litigation skills likely constitutes a material misrepresentation that is in violation of TDRPC Rule 7.02. In this situation, the lawyer’s mother has no basis to endorse his civil litigation skills since she is not a client and such an endorsement would be misleading. What about Avvo? Under TDRPC Rule 7.07, Comment 17, web-based directories that are accessible by the public are exempt from filing if it meets the requirements in TDRPC Rule 7.07(e). As such, while Avvo appears to meet the requirements of a web-based directory, it remains controversial since it rates lawyers, and a significant portion of a lawyer’s ratings appears to be based on how active and helpful they are on Avvo.10

Specifically, Avvo has been criticized for giving poor ratings to prominent attorneys while giving “no concern” ratings to other lawyers who have been sanctioned by their bar association or convicted of crimes.11 TDRPC Rule 7.02(4) expressly prohibits the comparison of lawyers where it cannot be substantiated by verifiable, objective data. While somewhat unclear,

10 Debra L. Bruce, Social Media 101 for Lawyers, 73 Tex. B.J. 186 (2010).

11 Id.

the ratings system endorsed by Avvo does not appear to meet this standard. Thus, by claiming a profile which gives a lawyer a ten star rating, the lawyer could be found to have sponsored a comparison of lawyers that cannot be substantiated by verifiable, objective data as required by the rules. As such, when lawyers claim their profiles on Avvo, they must be aware that they might be in violation of TDRPC Rule 7.02(4) by sponsoring false and misleading communications. Taking the safe route in such instances may be best; lawyers should be careful about which websites they sponsor. VI. CONCLUSION It is clear that the advent of popular social media platforms lends itself to facilitate communication. Unfortunately, for lawyers, this creates various potential violations of the TDRPC or the TCJC. To properly navigate the social media minefield, lawyers must be especially cautious about what is posted, either by themselves or a third-party, and whom to accept within their circles. Further, lawyers should be careful of what they sponsor since it could potentially be a violation of the TDRPC. While technology simplifies the ability with which information can be shared, this requires even greater vigilance upon the part of the lawyer than ever before, especially where information needs to be protected and rules must be followed.

By always keeping your audience in mind and carefully tailoring the content of the message you want to express, social media can become your friend, rather than your enemy. Knowing how to utilize social media effectively and how to navigate the social media minefield is key in today’s environment. While it is important to stay connected and keep up with the times, until you have a good understanding of how each of these social media platforms work, it may be wise to hold your tongue when it comes to your clients or any pending cases online.