Category Archives: Confidentiality

The Best of TECHSHOW – Tips and Tricks

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Every year the ABA TECHSHOW brings together some of the best legal technology minds our profession has to offer.  This year was no exception.  Over the next few posts I’ll share what I learned at this year’s conference.  Today: the best of 60 Tips in 60 Minutes.

Microsoft Office

Office Ribbon getting in the way? 

Use Ctrl F1 to toggle it off (and on).

View recently opened documents in Word with a quick right click

Want to see the most recently opened items in Word?  Right click on the Word icon on your desktop.  A list of recently opened items appears (whether Word is launched or not.)

Recover unsaved Word 2010/2013 documents or Excel 2010/2013 Workbooks

If your computer crashes and you haven’t saved your document or spreadsheet, act fast to recover your document. In Word or Excel 2010/2013, select File > Info > Manage Versions to recover your unsaved documents.

Print a blank Outlook calendar

A blank Outlook calendar can be handy for coordinating with others, but how can you print one that doesn’t show scheduled court dates, client appointments, or other events?  Easy!  The steps vary according to your version of Outlook.  Here are links to the instructions: Outlook 2007, Outlook 2010, Outlook 2013.

imagesReveal a sender’s full e-mail address

Sometimes e-mail messages only show the sender’s name.  If you want to see the full e-mail address, follow these steps:  In the blue message header, mouse over the name, right click, choose properties > show full e-mail address.

Need a system to follow-up on sent e-mails? 

Here are two approaches.

Option 1 – Create a “Waiting For” folder in Outlook

Drag e-mails that require a follow-up to this destination. If desired, add a “code” to the body of your message like “wff” (Waiting For Folder).  Create an Outlook rule that looks for this code and auto-files the messages that contain it in the Waiting For Folder.

Option 2 – The cc: method

Set up a “Delegated Mail” folder in Outlook.  Copy yourself on all e-mails that require a follow-up.  Create an Outlook rule that checks messages when they arrive, looks for your name as the sender and for your name in the cc: box.  Direct the rule to file messages that meet this criteria in a “Delegated Mail” folder.

Eliminate long, redundant e-mail threads

In Outlook 2010/2013, delete redundant e-mail strings by using “Clean Up a Conversation.”  The clean up function removes the prior e-mails and keeps only the most recent message – which has the entire thread.

How about a handy shortcut to an e-mail address? 

Create one right on your desktop.  Right click, select New > Shortcut.  In the “Create Shortcut” dialog box, type mailto: and the desired e-mail address. For example: mailto:joesmith@gmail.com (leave no spaces between the colon and the e-mail address). Click Finish.  You can now send an e-mail to Joe directly from your desktop without launching Outlook.

Never forget an attachment again

Download CodeTwo and never forget an e-mail attachment again.  This free download looks for keywords in the body of your e-mail like “enclosed” and “attached” and reminds you to add an attachment before your e-mail is sent.

Bloated e-mail inbox?

Clean it up with Outlook’s cleanup tools.  Choose File > Info > Cleanup Tools.  Choose Mailbox Cleanup… to manage the size of your mailbox with advanced tools, empty deleted items permanently, or move old items to an archive folder.

Disabling “reply to all” or “forwarding”

To prevent clients from forwarding e-mails or using “reply to all” inappropriately use this workaround to disable the functionality.  Yes, a persistent user can still “copy and paste” the body of your e-mail into a new message, but disabling forwarding or “reply to all” tends to stop 99% of perpetrators.

Work with clients or collaborate with colleagues in a different time zone?

Follow these easy steps to add a second time zone to your calendar in Outlook.

Open Your Mail and Calendar in Separate Windows

It can be annoying to toggle back and forth between your mail and other components of Outlook.  From anywhere in Outlook’s Navigation pane (Inbox, Calendar, Contacts, Tasks, Notes) right click on the second Outlook item you wish to view and choose “Open in new window.”

Security and Privacy

Looking for a secure flash drive?

Here are three good options: Imation Defender F200 Biometric, Aegis Secure Key, CMS Secure Vault FIPS.

Computer Screen Privacy

Keep prying eyes off your computer screen with PrivateEye from Oculis. Using facial recognition, the software instantly blurs your monitor if you leave your desk or turn away.

Wish you could monitor your servers remotely?

lockYou can with PC Monitor.  Compatible with iPad, iPhone, iPod. Free for non-commercial use.

Secure external hard drives

Just as flash drives should be encrypted or protected with biometrics, lawyers should take similar precautions to secure external hard drives.  Here are three choices:   Lenovo ThinkPad USB 3.0 Secure Hard Drive, Aegis Padlock, CMS Secure Disk Vault.

That Pesky Facebook

If you love connecting with friends and family on Facebook, but are worried about who might have access to your data, check out MyPermissions. Sign up to receive alerts when a Facebook app gains access to your personal information.

Productivity

Addicted to multiple monitors and wish you had one for the road?

You can with the portable Lenovo ThinkVision LT1421 14″ widescreen LED travel monitor.  Available on Amazon for under $200.

Looking for a fast, simple solution for installing apps on your new computer?

Try Ninite – directly download the most commonly used Web apps with no muss, no fuss.

proMeet the new scanner on the block

Everyone knows about the Fujitsu Scansnap s1500, but meet the new and improved kid on the block:  the Fujitsu Scansnap iX500. Bundled with Adobe Acrobat Standard, supports scanning to iOS and Android devices, improved resolution, and improved paper handling.  A work horse for under $500.  Ideal for most solos or as a supplementary scanner deployed at workstations throughout your office.

Stop carpal tunnel in its tracks

To avoid carpal tunnel, your keyboard must be appropriately positioned for your use. 3M offers quality keyboard trays that do the trick for around $160.

Why is your fillable form blank?

To “lock in” the contents of a fillable form, you must flatten the PDF.  Here’s how in Acrobat 9.  In Acrobat X or later, use an action.

Tip Grab Bag

Shopping for the best cloud service to backup your data?imagesCAVCNTYX

Visit Backup Review or follow the site on Twitter @backupreview – new reviews daily.

Splash happens.  Want to waterproof your iPhone?

Not a bad idea since water damage voids the warranty.  Try Liquipel.

Are you on LinkedIn? 

Did you know that you can reposition the components of your LinkedIn profile to feature preferred content? By default, Experience, Skills & Expertise, and Education appear “below the fold” after Activity and Background.  If you prefer a different sort order, simply drag and drop.

Many thanks to the 60 Tips in 60 Minutes presenters for all these great ideas

All Rights Reserved – Beverly Michaelis – 2013

The Ethical Minefield of Using Social Media for Investigation

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imagesIn late February, the Oregon State Bar Board of Governors approved OSB Formal Opinion No. 2013-189.  Following in the footsteps of opinions about metadata (187) and cloud computing (188), the bar seeks to address the ethical minefield of using social media to investigate an opposing party, a witness, or a juror.

The scenario is as follows:

Lawyer wishes to investigate an opposing party, a witness, or a juror by accessing the person’s social networking website. While viewing the publicly available information on the website, Lawyer learns that there is additional information that the person has kept from public view through privacy settings and that is available by submitting a request through the person’s website.

  1. May Lawyer review a person’s publicly available information on a social networking website?
  2. May Lawyer, or an agent on behalf of Lawyer, request access to a person’s non-public information?
  3. May Lawyer, or an agent on behalf of Lawyer, use a computer username or other alias that does not identify Lawyer when requesting permission from the account holder to view non-public information?

Public Information is Up for Grabs

“Accessing the publicly available information on a person’s social networking website is not a “communication” prohibited by Oregon RPC 4.2. OSB Formal Opinion No. 2005-164 discusses the propriety of a lawyer accessing the public portions of an adversary’s website and concludes that doing so is not “communicating” with the site owner within the meaning of Oregon RPC 4.2. The Opinion compared accessing a website to reading a magazine article or purchasing a book written by an adversary. The same analysis applies to publicly available information on a person’s social networking web pages.”

Lawyers May Ethically “Friend” Non-Represented Parties

  • A lawyer may request access to a person’s non-public personal information provided the lawyer has no actual knowledge that the person is represented on the subject matter by counsel. OSB Formal Opinion 2004-164.
  • If the holder of the social networking account requests additional information to identify the lawyer, the lawyer must comply or withdraw the request.
  • If the lawyer has reason to believe the holder of the social networking account misunderstands the lawyers role, the lawyer must provide additional information or withdraw the request.

Lawyers May Not Ethically “Friend” Represented Parties

If the holder of a social networking account is represented, the “friend” or contact request must be made through the account holder’s counsel or with the counsel’s prior consent.  Oregon RPC 4.2.

Contacting Jurors

“Although a lawyer may review a juror’s publicly available information on social networking websites, communication with jurors before, during, and after a proceeding is generally prohibited. Accordingly, a lawyer may not send a request to a juror to access non-public personal information on a social networking website, nor may a lawyer ask an agent do to do so.”

The Rationale Behind “Friending” Non-Represented Parties

The opinion includes an interesting discussion about the rationale for allowing lawyers to contact non-represented parties.

On the one hand, Oregon RPC 4.3 prohibits a lawyer from stating or implying that the lawyer is disinterested when making contact with an unrepresented party.  Further, if the lawyer knows or reasonably should know the unrepresented party misunderstand’s the lawyer’s role, he or she is obliged to correct that misunderstanding.  [See the second and third bullet points above, under Lawyers May Ethically "Friend" Non-Represented Parties.]

The opinion acknowledges that sending a request for contact means the ”… lawyer is interested in the person’s social networking information.”  So how is it that contact is permitted under Oregon RPC 4.3?  Here is the explanation:

  • A Lawyer’s request for access to non-public information does not in and of itself make a representation about the Lawyer’s role.
  • The holder of the [social networking] account has full control over who views the information available on his or her pages.
  • The account holder can accept or reject requests for access.
  • The account holder’s failure to inquire further about the identity or purpose of unknown access requestors is not the equivalent of misunderstanding Lawyer’s role in the matter.

Deceptive Access to Non-Public Information

The opinion also addresses the use of subterfuge to shield the lawyer’s identity when making a request for access to non-public information.  Aliases or “fake” usernames are generally not permitted in this context, unless the “covert activity” exception applies.  See Oregon Formal Opinion No. 2005-173 for a full discussion.

What this Opinion Does NOT Address

Formal Opinion No. 2013-189 addresses the ethical implications of using social networking sites for investigation.  It does not discuss the Stored Communications Act (SCA).  For a very brief overview of the implications of the SCA, see this post.  If in doubt, research the applicability of SCA issues before proceeding with social networking investigation activities.  If you practice employment law, be aware of Traps for the Unwary Employer (using social networking and related digital resources to screen potential employees).

All Rights Reserved 2013 Beverly Michaelis

The Year in Review – Useful Tips You May Have Missed

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Thank you readers!  I hope this has been a fruitful year for you.  Just in case you missed a tip or two, here is a list of 2012 blog posts for your perusal:

January

February

March

April

May

June

July

August

September

October

November

December

All Rights Reserved 2012 Beverly Michaelis

15 Steps You Can Take Now to Protect Sensitive Data

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The October issue of the Oregon State Bar Bulletin contains a must-read article entitled The Data Dilemma: Law Firms Strive to Strengthen E-Security as Potential Threats Continue to Rise. 

To understand why you should be concerned, read the article.  To take steps now to protect your firm, read John Simek and Sharon Nelson’s sidebar, “E-Security Pros Offer 15 Tips to Help Law Firms Better Protect Sensitive Data” posted as a PDF on the OSB Web site.  Among John and Sharon’s recommendations:

  • Use unique passphrases for each Web site/account/software program   (Passphrases are better than passwords)
  • Properly encrypt laptops, flash drives, and backup media
  • Physically lock up your server
  • Properly vet all cloud service providers
  • Secure Wi-Fi networks
  • Wipe data with Darik’s Boot and Nuke if you donate/dispose of your computer, digital copier, or similar equipment
  • Consider cyber insurance (Your Professional Liability Fund coverage does not protect against data loss).

Read all 15 tips here.

Learning the Ropes 2012

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Are you new to private practice? Then I have just the ticket for you!

Attend our three day conference – Learning the Ropes: A Practical Skills & Ethics Workshop – for a mere $65.  Attendance at the full program satisfies the MCLE requirements for new admittees’ first reporting period.

Choose from these concurrent sessions:

  • Creating a Firm (featuring yours truly) or Joining a Firm
  • Tort Litigation or Estate Planning, Guardianships, Conservatorships
  • Domestic Relations or Criminal Law
  • Civil Motion Practice or Bankruptcy

Can’t decide?  All tracks are recorded for later viewing at no charge.

Plenary sessions include:

  • How to Develop a Successful Practice and Avoid Legal Malpractice
  • Client Communication and Other Practice Management Survival Tips
  • The Ethics of Practice Management
  • Alternative Dispute Resolution
  • Recognizing Child Abuse and Fulfilling Your Duty to Report
  • Courtroom Do’s and Don’ts
  • Negotiation Tips, Tricks, Traps, and Tools
  • Bridging the Cultural Gap
  • Employment Law and Conscientious Communication (a new addition in 2012!)

Day 1 includes a “Meet the Judges” luncheon.  Day 2 features a networking luncheon with bar leaders and respected practitioners in the fields of Appeals, Criminal Law, Employment Law, Intellectual Property, Business Litigation, Debtor/Creditor Law, Estate Planning, Litigation, Business Transactions, Elder Law, Family Law, and Real Estate.

All meals, including the luncheons, are included in your $65 workshop fee.  The program is at the Oregon Convention Center October 31, November 1, and November 2, 2012.  Register here or visit the PLF Web site > Upcoming Seminars (under the heading Loss Prevention – CLE).  Sign up early.  Space is limited!

Copyright 2012 Beverly Michaelis

More on Garnishing Trust Accounts

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Earlier this year, I wrote a short post on garnishing lawyer trust accounts.  In the latest issue of Multnomah Lawyer, the official publication of the Multnomah Bar Association, ethics expert Mark Fucile addresses this topic.

As Fucile points out, client funds in trust are not off limits when it comes to garnishment.  Because the funds belong to the client, and are client property, they are subject to creditor’s claims.  Read the full article here. (On page 6.)

Smartphone Email Signatures

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Does your standard e-mail signature include a disclaimer?  Perhaps the IRS Circular 230 Disclosure:

To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

Or maybe yours seeks to protect confidentiality and the attorney-client privilege:

This message may contain sensitive and private privileged information.  If you are not the intended recipient, or if you believe you have received this message in error, please notify me immediately by reply e-mail.  Please keep the contents confidential and delete the message and any attachments from your system.

Whether such disclaimers work is a debate for another day.  For the purpose of today’s post, let’s assume they do and you want to include a disclaimer in your e-mail signature.  Easy enough – when you are working on your desktop or laptop – but long e-mail signatures are not supported by mobile devices like the iPhone.  What can users do?

One option is to post the e-mail communication policy/disclaimer on your firm’s Web site.  If your device will support a signature that contains an outside link, problem solved.  Here is an example:

This can be done on the iPhone using an app like the Signature Creator Tool that supports HTML signatures with URLs.

If that sounds like too much work, another choice would be to include appropriate disclaimers in the client’s initial fee agreement so the client understands up front that all communication by e-mail is subject to the conditions contained in the initial disclaimer.  In that case, if an attorney preferred, his or her mobile e-mail signature could look like this:

 

If you are beyond the initial fee agreement stage and don’t want to hassle with special apps that support HTML signatures with URLs, then do a mass paper mailing or mass e-mail to all clients including a copy of the firm’s disclaimer and e-mail communication policy.  Explain to clients that your policies and disclaimer apply to all messages, whether sent by tablet, smartphone, desktop, laptop, or some future means yet to be invented.  If you are particularly concerned, ask clients to acknowledge and consent to your terms.  This can be done by signing and returning the policy/disclaimer or by replying to your e-mail blast.  (If you send a group or broadcast e-mail to all clients, be sure to put addresses in the bcc: field).

Copyright 2012 Beverly Michaelis

Law Practice TODAY – July issue

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The July issue of Law Practice TODAY is out.  This month’s theme is ”Phones, Tablets & Mobile Computing: Oh My!”

Articles in this issue include:

  • 6 Android Apps for Attorneys
  • Connecting to the Web 101
  • The Mobility Choice
  • Securely Deleting Data from Mobile Devices
  • Motivate Employees: Set Goals, Communicate, and Say “Thanks”
  • Technology Brings Billing and Receivables into the New World of Law

Law Practice TODAY is a free monthly Webzine published by the ABA Law Practice Management Section.

Guarding and Exploiting Metadata under OSB Opinion 2011-187

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In this month’s issue of the Oregon State Bar Bulletin, OSB General Counsel Helen Hierschbiel discusses OSB Formal Opinion 2011-187.  Here are key excerpts:

Sender’s Duties

  • Competency in relation to metadata requires a lawyer who uses electronic communications to maintain at least a basic understanding of the technology and the risks of revealing metadata or to use adequate technology support. OSB Formal Op. No. 2011-187.
  • Acting competently does not require that the lawyer be free of any and all mistakes. On the contrary, the Oregon Supreme Court has made clear that an isolated mistake does not necessarily amount to incompetence.  Instead, it simply requires that lawyers use reasonable care to avoid disclosure of client confidences.
  • “With respect to metadata in documents, reasonable care includes taking steps to prevent the inadvertent disclosure of metadata, to limit the nature and scope of the metadata revealed, and to control to whom the document is sent.” OSB Formal Ethics Op No 2011-187. Such steps might include scrubbing the metadata from the document prior to electronic transmission or converting the document to a format (such as PDF) that does not include the metadata. What constitutes reasonable care will change as technology changes.

Recipient’s Duties

  • If a lawyer who receives a document knows or should have known that the document was inadvertently sent, the lawyer must notify the sender promptly. RPC 4.4(b). OSB Formal Ethics Op No 2011-187 reads this rule to apply to the inadvertent disclosure of metadata as well.
  • How is a lawyer expected to know that a document or its embedded information has been inadvertently sent? Factors to consider may include: whether the document was sent in its native application or was converted to PDF; the nature of the information; how easily the data may be viewed (is it readily apparent on the face of the document, or hidden beneath several layers); the standard of practice between lawyers generally and between the lawyers in a given situation.
  • Assuming that the metadata was inadvertently sent, RPC 4.4(a) requires the recipient lawyer to promptly notify the sender in order to give the sender the opportunity to take steps to protect the confidentiality of the information after its transmission. Thus, when in doubt about the intent of sending the information, a lawyer may decide that giving notice is the most cautious approach.
  • Lawyers should carefully consider the advantages and disadvantages before using inadvertently sent documents or metadata. Lawyers should also consult with their clients before making the decision. OSB Formal Op No 2005-187. The ultimate decision of whether to return or retain, however, is left to the lawyer’s professional judgment.

Learn More

On January 27, 2012 the Professional Liability Fund presented a lively CLE on Metadata.  If you did not attend the live program or listen via Webcast, order the CD or DVD and download the handout at no charge through the PLF Web site > Programs on CD/DVD > Metadata: Complying with Oregon Formal Opinion 2011-187. 

Read Helen’s full article here.

Can You Screen Employees Using Facebook?

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Today’s post from the ABA Journal Law News Now reports on a study claiming that Facebook posts can predict job performance. I have no doubt this is true – to some extent.  However, employers should be exceedingly wary about using Facebook or similar methods to screen potential employees.  Here are timely reminders about what employers can and cannot do when using the Internet as a hiring/screening tool:

Excerpted from Digging the Dirt: Digital Tips for Employers and Job Seekers by Tamara Russell of Barran Liebman:

Potential Equal Employment Opportunity Liability

“If an employer Googles an applicant’s name or reviews an applicant’s Facebook public profile, the employer could technically be “interviewing” that applicant.  An Internet search, for example, could reveal that an applicant is on a cancer survivor’s Web site, or pictures of the applicant wearing a burqa – both of which place the applicant in protected class categories.  If an unsuccessful applicant learns about that Internet search, the applicant might argue that the employer based its decision (either consciously or unconsciously) with a discriminatory bias.”

Genetic Information Nondiscrimination Act (GINA)

Currently, employers are liable for acquiring genetic information about an employee unless the information is commercially and publicly available.  (The Internet fits within this definition.)  However, final regulations have yet to be adopted, and it is possible the EEOC will exclude personal Web sites or social networking sites if password protected.

Criminal Background Checks

“If an employer Googles a candidate and discovers on a newspaper’s Web site that a candidate has a criminal background, the employer must be mindful of the civil rights laws that may be implicated if the candidate is disqualified from employment for that reason.”  (See Ms. Russell’s discussion of the recent case, EEOC v. Freeman, in the original article.)

Credit Check Reports

Effective July 1, 2010, Oregon law prohibits employers from using or obtaining a job candidate’s credit history for employment purposes.  Limited exceptions apply.  “An employer who conducts Internet searches on a candidate, discovers information about an applicant’s credit history, and refuses to hire that personal because of the results of that search may violate this new law.”  (And other civil rights laws discussed in the article.)

Bankruptcy and Civil Court Filings

Federal law prohibits employers from discriminating against an applicant based on the applicant’s bankruptcy history.  Oregon laws provide additional protections for certain civil and administrative filings.

Stored Communications Act

Federal law “makes it illegal for any person to intentionally access stored communications without authorization.”  The only exception?  If the user authorizes access.  “Any time an employer accesses a restricted Web site to look into the activities of an applicant or an employee, it must do so with the full and free consent of someone who already has access to that site.  Getting that consent in writing is a good idea.”

Fair Credit Reporting Act

Employers who use third-party services to run background checks must follow FCRA notice and disclosure requirements.  “Whether an employer implicates FCRA when it does an Internet search on a candidate apparently has not yet been tested in the courts.  It seems unlikely, however; Google and Facebook would not likely fall within the statute’s definition of a ‘consumer reporting agency.’”

Will the Real Beverly Michaelis Please Stand Up

As Ms. Russell points out, the final trap to using the Internet as a screening device may be the search itself.  Unless a searcher is precise and careful, it is easy to bring up multiple instances of a candidate’s name.  For example, I like to think of my name as relatively unique, however there is a public profile for a “Beverly Michaelis” on Facebook (not me) and I have received at least two Google Alerts informing me that “Beverly Michaelis” died.  (I’m happy to report this Beverly Michaelis is alive and well.)

Ms. Russell concludes with some final words of wisdom – both to employers and prospective candidates.  Her article is well worth reading.  For tips on hiring (and screening) potential job candidates, see Know Who You Hire.

Shortly before I first blogged about Ms. Russell’s article, I attended Ethical Traps in Cyberspace, a presentation at the 2010 ABA Annual Meeting.  Here are some further tips from that CLE, which touch on related areas of using the Internet to “dig dirt,” including discovery and social media policies in law firms:

Discovery

  • Beware of “friending” witnesses on social networking sites in preparation for litigation.  Such contact may be deceptive if the purpose or nature of the connection is not made clear.  The same may hold true if the lawyer asks a third party to make the contact.  See Philadelphia Bar Association Professional Guidance Committee Opinion 2009-02 (March 2009).
  • If an individual communicates with his or her lawyer using a work computer, the communications may or may not be protected by attorney-client privilege: Scott v. Beth Israel Med. Ctr (no privilege in using work computer); Stengart v. Loving Care Agency, Inc. (e-mails sent via personal Yahoo! account on company laptop protected by attorney-client privilege.)
  • Serving a subpoena duces tecum on social media Web sites to obtain personal information of users is not permitted under the Stored Communications Act, 18 USC § 2701(a)(1).  Crispin v. Audigier.  Lawyers seeking social media content should rely on traditional discovery methods directed to the specific parties involved.
  • Employers are specifically prohibited from obtaining unauthorized access to their employees’ password-protected Web sites under the SCA.  See Konop v. Hawaiian Airlines, Inc. and Pietrylo v. Hillstone Restaurant Group.
  • The Internet Archive can be used to retrieve old Web pages.

Counseling Clients

  • Ask potential clients and witnesses about their use of social media; review social media content as needed.
  • Caution clients about posting anything related to their case, particularly content that may reflect on their character or credibility.  It may be best for the client to discontinue use of social media altogether.
  • Warn your client that opposing counsel or someone connected to opposing counsel may attempt to independently access the client’s profile or “friend” the client.  Even if this does not occur, social network postings may be within the scope of a traditional discovery request.
  • Be sensitive to spoliation of evidence issues, for example: if a client changes a pre-existing social network page, is this equivalent to altering a “document?”  What about changing privacy settings or deactivating or removing an account altogether?  Would the result be different if the profile was preserved before it was removed or changed?

Social Media Policies

  • Provide guidance on both employer-sanctioned and personal use of social media, in particular how personal use may affect the employer or the employee’s professional standing.
  • Remind employees that anonymity on the Web doesn’t exist.
  • All employees should respect the intellectual property of others and avoid posting content that is defamatory or inappropriate.  Using social media to “fire back,” harass, or negatively engage others can come back to haunt the employee and employer.
  • Additionally, lawyers and legal support staff should follow ethical parameters: protect client confidentiality, avoid giving legal advice, and use disclaimers as needed.
  • Social media policies should be drafted to encompass emerging technology and reviewed regularly.
  • PolicyTool is a good place to start if you need to craft a social media policy.

Internet Marketing for Lawyers

  • Good judgment is essential when using social media.
  • Marketing via the Internet should comply with ethical rules regarding advertising, solicitation, and the unauthorized practice of law:
    • Real-time electronic contact is specifically prohibited by ABA Model Rule 7.3(a).
    • Web sites and blogs should specifically state the jurisdictional limits of the attorney’s practice to avoid UPL issues.
    • Content should be current, accurate, and subject to substantiation.
    • Content should not create false expectations.
  • Jurisdictions vary.  Know the rules of your specific state(s).

Facebook and MySpace

  • Review your privacy settings, checking all sections and subsections.  Perform this review on a regular basis, as social media providers change settings frequently.
  • As with any Web site, use strong passwords or better yet, a pass phrase, and change it from time-to-time.
  • Take control of what “friends” or “friends of friends” may post about you, especially when tagging you in photographs.
  • Limit use of games or third party applications that access your personal profile.
  • “Friending” judges before whom you appear is probably best avoided.  In Florida, judges are specifically prohibited from “friending” lawyers who appear before them to avoid the appearance of impropriety: Florida Supreme Court Judicial Ethics Advisory Committee Opinion Based on: Florida Canon 2B.

LinkedIn

  • Use of LinkedIn’s “specialties” may be problematic.  Research your jurisdiction.  If necessary, use a disclaimer or leave this area of your profile blank.
  • Also proceed cautiously with regard to client recommendations.  Since all LinkedIn recommendations must be approved by the user, use this opportunity to correct any content that may run afoul of the rules.  For example, it may be necessary to ask the client to add disclaiming language or delete content that constitutes an inappropriate comparison.
My thanks to John Lichtenberger, @AdvertisingLaw, for his tweet this morning alerting me to the ABA Journal post.  If you’re on Twitter, please follow John for informative posts focusing on advertising law, social media, marketing. client relations, and breaking news affecting the legal profession.