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Legal Series: Ethical Issues in Attorney Use of Social Media

Ethics/Professional Responsibility CLE

Legal Series: Ethical Issues in Attorney Use of Social Media

Live Webcast Date: Friday, January 31, 2014 at 12:00 pm - 2:00 pm (ET)
Ethics/Professional ResponsibilityRecording
While the use of social media provides an array of opportunities for companies to market their services and connect with other companies and potential clients, attorneys (both in-house and outside counsel) have unique ethical duties that pose significant risks and require additional practical restraints on unfettered and unfiltered social media use to benefit clients. 

This course offers in-house counsel & attorneys the opportunity to be equipped with a better understanding of ethical issues surrounding social media information, advertising, and use by attorneys. 

The Knowledge Group has assembled a panel of distinguished practitioners and thought leaders who will share their expertise on how to approach the issues surrounding the subject. The panelists will examine the pros and cons of social media and will also share practical guidance on how to effectively use social media while preventing potential pitfalls. 

Who Should Attend

- Attorneys
- New Media Attorneys
- In-House Counsel
- General Counsel
- Legal Consultants
- Legal Executive
- Legal Officers
- And other interested/related professional

Faculty

Colin K. Kelly

Colin K. Kelly
Partner
Alston & Bird LLP

Jeffrey N. Rosenthal

Jeffrey N. Rosenthal
Attorney
Blank Rome LLP

Larry Lieb, ACE, CCA

Larry Lieb, ACE, CCA
Chief Innovation Officer
Scarab Consulting

Mark R. Phillips, Ph.D.

Mark R. Phillips, Ph.D.
Vice President and Senior Consultant
Trial Partners, Inc.

Click Here to Read Additional Material

Colin K. Kelly, Partner, 
Alston & Bird LLP 

Jeffrey N. Rosenthal , Attorney, 
Blank Rome LLP 


Larry Lieb, ACE, CCA , Chief Innovation Officer
Scarab Consulting 


Mark R. Phillips, Ph.D. , Vice President and Senior Consultant
Trial Partners, Inc. 


 

  • Ethical Use of Social Media During Trial:(Colin/Mark at Trial Partners-30 mins)
    • Introduction to the power of social media information in the hands of lawyers. (Mark)
       
      • The social media revolution
      • Techniques for using social media during voir dire
      • Twit or Tweet: Social media juror horror stories
    • A Brief history of the ethical rules concerning use of social media at trial. (Colin)
       
      • 2006: Sorich court banned Internet inquiries
      • 2010: Carino – new trial granted after trial judge prohibited use of laptop during jury empanelling
    • 3. Current ethical guidance for using social media to investigate jurors before, during and after trial. Any trends? (Colin)
      • Model Rule 3.5 reads: "[a] lawyer shall not: (a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law; [or] (b) communicate ex parte with such a person during the proceeding unless authorized to do so by law.
      • NYCBA formal opinion: supports access to social media as long as no communication between attorney and juror.
      • Other bar associations have held that internet research by attorneys is ethical, as long as it does not involve any direct communication with jurors.
         
      • The Philly Bar Association issued guidance in 2009 that a lawyer cannot line up a third party to gain access to a potential witness' Facebook page without running afoul of several ethical rules, namely Rule 5.3. (Responsibilities Regarding Non lawyer Assistants); Rule 8.4. (Misconduct); and Rule 4.1. (Truthfulness in Statements to Others).
      • Convictions overturned: Fumo (2009); Dimas-Martinez (2011)
      • Jurors punished for violating jury instructions (Florida 2012)
  • Give Me All Your Tweets! Practical Tips on Using Social Media at Trial (Colin and Mark-10 minutes)
     
    • What types of information should attorneys be monitoring?
    • What common sites should attorneys be monitoring?
    • What types of social media tools are available to attorneys?
    • Other steps to take during trial.
  • Is it Ethical to be Facebook "Friends" with a Judge? (Colin and Jeff- 25 minutes)
     
    • 1. What are the ethical rules concerning social media interactions with members of the judiciary?
       
      • ABA Approach: Formal Opinion 462, issued February 21, 2013 (Jeff-10 minutes) 

        Judge's Use of Electronic Social Networking Media: 

        A judge may participate in electronic social networking, but as with all social relationships and contacts, a judge must comply with relevant provisions of the Code of Judicial Conduct and avoid any conduct that would undermine the judge's independence, integrity, or impartiality, or create an appearance of impropriety. 

        -States that follow the ABA (Jeff)
      • The Florida Approach: (Colin-5 minutes) 

        The Florida Bar has issued an ethics opinion forbidding judges from accepting as Facebook friends or LinkedIn connections from any lawyer who might appear before them. 

        In September 2012 a Florida Appeals Court (in a narrow precedential ruling) judge can be recused from a case for being Facebook "friends" with a prosecutor who appears before him in court. 

        See http://www.techdirt.com/articles/20120911/18133920350/judge-disqualified-case-because-hes-facebook-friends-with-prosecutor.shtml
    • Discussion? (10 minutes)
      • Which is the better approach? Which approach demonstrates the current trend? (Jeff)
      • What do the model judicial canons tell us? (Colin)
      • Is this a Digital Double Standard? Should the ban against being Facebook friends with a judge apply to all social interactions between lawyers and judges (the Rotary Club and Garden Club too)? (Colin)
      • Does limiting social interactions between lawyers and judges increase fairness or isolate judges further and therefore put them out of touch with their communities? (Jeff)
  • Civil Discovery of Social Media: Give Me All Your Tweets! (Colin/Jeff/SCARAB-35 minutes)
     
    • Background on Discovery of Social Media (Colin) (5 minutes) 
       
      • The nearly permanent digital footprint of social media is astounding and reflects how differently we interact and communicate than just a decade ago (or five years ago). Some argue that social media is more "explosive" and important in determining how and why we communicate than email. Companies are trying to stay ahead of a constantly changing communication trend by implementing and monitoring compliance with social media use policies.
      • Discovery costs continue to rise and courts seem to be imposing broader and broader discovery obligations on companies.
    • View from the Trenches: (SCARAB) (20 minutes)
      • Available tools to efficiently capture and review social media data.
      • Trends
    • Can you ethically instruct a client to "clean up" their Facebook page (Jeff) (10 minutes)
  • Questions - Panel (Remaining time)
Colin K. Kelly

Colin K. KellyPartnerAlston & Bird LLP

Colin Kelly is a partner in the firm's Products Liability and Litigation & Trial Practice Groups. He focuses his practice in the areas of product liability, toxic torts and complex commercial litigation, and he has bet-the-company crisis management experience. Colin has a history of trying difficult cases in difficult places: over the past three years, he has tried eight fatal cancer cases (four to verdict) in Boston, Baltimore, Miami, Ft. Lauderdale and Waycross, Georgia, for Union Carbide Corporation. Colin is National Trial Counsel for U-Haul International and recently served as national coordinating counsel to a green technology company involved in consumer product-related lawsuits throughout the US and Canada. Colin has litigated complex matters for more than 10 different Fortune 500 companies and has prepared cases for trial in 15 different states. Colin is frequent speaker and author on some of the practical ways that lawyers can ethically use social media to benefit clients before, during and after trial.

Jeffrey N. Rosenthal

Jeffrey N. Rosenthal AttorneyBlank Rome LLP

Jeffrey N. Rosenthal is an attorney with Blank Rome LLP.  He concentrates his practice in the areas of complex corporate and commercial litigation, and specializes in cases involving technology.  He serves both corporate and individual clients in a wide variety of industries including computer software, banking and securities/shareholder actions.  Since 2012, Mr. Rosenthal has written the Cyberlaw column for The Legal Intelligencer—America’s oldest daily law journal—regularly publishing articles on the non-traditional uses of social media and its implications for modern practice.  He has also lectured on the topic of alternative dispute resolution.  Mr. Rosenthal can be reached at [email protected].

Larry Lieb, ACE, CCA

Larry Lieb, ACE, CCAChief Innovation OfficerScarab Consulting

Larry Lieb has worked as a subject matter expert in the field of computer forensics and electronic discovery since 1998. Larry's practice focuses on the application of best practices and technology to maximize the limited dollars parties involved in litigation have available for substantive legal work while minimizing wasted expense in discovery. Larry can analyze, report and testify on evidence of activities that have taken place using computers and smartphones.

Mark R. Phillips, Ph.D.

Mark R. Phillips, Ph.D.Vice President and Senior ConsultantTrial Partners, Inc.

Dr. Mark R. Phillips is the vice president of Trial Partners, Inc. and a senior trial consultant. His expertise includes jury selection, jury decision making, and witness preparation. His firm conducts all types of jury research, including mock trials, focus groups, post-trial juror interviews, and community attitude surveys. Dr. Phillips consults in high-stakes and high-profile civil and criminal matters in state and federal jurisdictions throughout the country. He has published research on jury decision making, jurors' perceptions of minority attorneys, and eyewitness memory. His clients include many Fortune 100 companies, government entities, and prominent individuals.

Course Level:
   Intermediate

Advance Preparation:
   Print and review course materials

Method Of Presentation:
   On-demand Webcast

Prerequisite:
   NONE

Course Code:
   134516

NASBA Field of Study:
   Marketing

NY Category of CLE credit:
   Ethics and Professionalism

Total Credits:
   2.0 CLE

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About the Knowledge Group

The Knowledge Group

The Knowledge Group has been a leading global provider of Continuing Education (CLE, CPE) for over 13 Years. We produce over 450 LIVE webcasts annually and have a catalog of over 4,000 on-demand courses.

About the Knowledge Group

The Knowledge Group

The Knowledge Group has been a leading global provider of Continuing Education (CLE, CPE) for over 13 Years. We produce over 450 LIVE webcasts annually and have a catalog of over 4,000 on-demand courses.

With more than 800 attorneys, Alston & Bird is a leading national AmLaw 50 firm. The firm's core practice areas are intellectual property, complex litigation, corporate and tax, with national industry focuses in energy and sustainability, health care, financial services and public policy. The firm has built a reputation as one of the country's best employers, appearing on FORTUNE magazine's ranking of the "100 Best Companies to Work For" 14 consecutive years, an unprecedented accomplishment among law firms in the United States. The firm has offices in Atlanta, Brussels, Charlotte, Dallas, Los Angeles, New York, Research Triangle, Silicon Valley, Ventura County and Washington, D.C.

Website: http://www.alston.com/

Blank Rome LLP is one of America’s largest law firms.  With nearly 500 attorneys serving clients around the globe, Blank Rome is an international law firm representing businesses and organizations ranging from Fortune 500 companies to start-up entities.  Blank Rome helps its clients in all aspects of their businesses.  Blank Rome also regularly represents pro bono clients in a wide variety of cases and matters.  More information about the Firm is available at www.BlankRome.com.

Website: http://www.blankrome.com

Scarab Consulting enables corporate legal department and law firm clients to focus on practicing law, rather than on managing discovery. For over 10 years, Scarab has been providing clients with customized solutions that encompass the full spectrum of the Electronic Discovery Reference Model (EDRM) from identification and preservation of data, to processing, data analytics, through to hosted review and production.

Website: http://www.consultscarab.com/

Trial Partners, Inc. is a national trial and jury consulting firm, headquartered in Los Angeles, dedicated to offering the highest quality services in a timely, cost-effective, and confidential manner. 

The depth of experience and skill that Trial Partners brings to its clients is rare. Our consultants have worked on over 5,000 cases and we have assisted in over 1,500 jury selections. We have worked in multiple counties in 43 states, plus in the District of Columbia and the Commonwealth of Puerto Rico. 

The consultants at Trial Partners are recognized as leading authorities in jury psychology and legal strategy in all types of cases and jurisdictions. Our team of seasoned professionals combines outstanding academic credentials, extensive practical experience, and a track record of good results. We have a first-rate reputation throughout the country because we listen to our clients, we think about their issues, and we act effectively to achieve their objectives. 

We provide expert assistance in the formulation and communication of effective case themes and strategies in civil and criminal matters, and in federal and state courts around the country. The firm focuses on complex matters involving major corporations in every industry, governmental entities, startups, and individuals. The firm's clients include many Fortune 100 companies and prominent individuals.

Website: http://www.trial-partners.com/

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