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Monday, December 21, 2009

Florida Ethics Opinion Underscores Risks Associated with Social Media for Attorneys

by Mehmet Munur

Florida Judicial Ethics Advisory Committee recently issued an opinion that answered the question “Whether a judge may add lawyers who may appear before the judge as ‘friends’ on a social networking site, and permit such lawyers to add the judge as their friend” in the negative. Though social media can be a valuable tool for any profession, the opinion emphasizes why attorneys should consider the risks involved in contributing to social media. While not mentioned in the opinion, attorneys should also consider other risks associated with listing specialties, receiving client testimonials, and unintentionally forming attorney-client relationships.

Commentators, such as Professor Stephen Gillers (see NY Times Article) have argued that the judges may be oversensitive to judges “friending” attorneys in Facebook, I believe that the opinion is just the beginning in a series of opinion that are likely to highlight related issues that may come up in social media. Before joining LinkedIn, we considered the Ohio Supreme Court’s guidance on some of the issues mentioned above. First, we considered whether we could join such an organization in the first place and be listed as attorneys. Ohio Supreme Court Opinion 88-4, though superseded by the Ohio Rule of Professional Conduct 7.4, stated:

A lawyer may ethically be listed in a legal directory or law list provided the listing does not contain a false, fraudulent, misleading, or deceptive statement or claim.

This opinion probably refers to MartinDale Hubbell listings, which are dominated by attorneys. While LinkedIn is professional in nature, attorneys in no way dominate it. I remember seeing that LinkedIn included about 700,000 attorneys (apologies for the lack of citation) out of their 50 million professionals. Nevertheless, the Ohio Supreme Court opinion highlights issues involved in joining such social media outlets in the first place. Therefore, attorneys must ensure that their listings in any social media do not contain false, fraudulent, misleading, or deceptive statements.

Issues related to attorneys’ specialties may also arise on social networks. The Supreme Court of Ohio only recognizes a few areas of specialization, such as admiralty, trademark, and patent law. Therefore, avoid listing specialties unless you are actually specialized under Rule 7.4. LinkedIn includes a "specialties" section by default field in profiles, which if overlooked, may inadvertently describe an attorney to have specialized in those areas. Therefore, double-check your profile to ensure that you have accurately listed your specialization.

Another cause for concern is client testimonials. While the prohibition against client testimonials have been superseded, Model Rule 7.1 states that a “lawyer shall not make or use a false, misleading, or nonverifiable communication about the lawyer or the lawyer’s services.” Note that the Model Rule, which came into effect in 2007, “does retain the DR 2-101 prohibition on unverifiable claims.” Therefore, “[w]hatever means are used to make known a lawyer’s services, statements about them must be truthful.” The Ohio Supreme Court Opinion 2000-6 further states that:

a law firm’s public communication of client quotations describing the general nature of the legal services provided, responsiveness of the law firm, and other non-substantive aspects of the firm’s representation is improper under the professional rules of conduct. This view is based on the current rules in the Ohio Code of Professional Responsibility and is consistent with ABA Model Rule 7.1, the Comment thereto, and the advice offered by the Board in Opinion 89-24.

Therefore, it may be a good idea to ensure that client testimonials are verifiable to an objective degree or avoid client testimonials altogether.

While the Model Rules are silent on the issue of the formation of an attorney-client relationship, the Restatement Third of the Law Governing Lawyers section 14 provides that:

A relationship of client and lawyer arises when:
(1) a person manifests to a lawyer the person's intent that the lawyer provide legal services for the person; and ...
(b) the lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services

Such an issue may arise while answering LinkedIn questions or a direct inquiry by another Facebook or LinkedIn member. Inadvertent formation of an attorney-client relationship bring with it all of the conflicts issues that an attorney should consider before representing a client.

Therefore, attorneys should double-check their jurisdictions’ ethics guidance to ensure that they are not running afoul of ethical rules that have been in at work for some time but may arise in ways not previously imagined.

See also Legal Blog Watch regarding a related South Carolina opinion regarding law enforcement officials and judges.

You can also find a link to the ABA Model Rules here.

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Tuesday, December 15, 2009

Court Rejects Plaintiff’s Argument that Overbroad Privacy Policy Led to Waiver of 1st Amendment Rights

By Mehmet Munur

A federal district court in Missouri ruled on December 9 that the broad website privacy policy of a newspaper did not lead to an anonymous commenter’s contractual waiver of his First Amendment rights. While the case does not break new ground in First Amendment jurisprudence, it emphasizes some of the shortcomings of the self-regulatory system of privacy regulation of the web in the US. Such overbroad privacy policies and underlying practices may be one reason why the FTC is shying away from the Notice-Choice paradigm.

The plaintiff brought a motion to compel in order to reveal the identity of an anonymous commenter, who was not a party to the litigation, for comments posted on a News-Leader article. First, the Plaintiff argued that the anonymous commenter’s speech was not given absolute protection. While the court agreed, it stated that political speech was given high level of protection especially in circumstances where the commenter was not a party to the litigation and dismissed the argument.

Second, the plaintiff argued that the anonymous commenter agreed to the News-Leader’s Privacy Policy during the sign-up process and, therefore, waived his First Amendment rights to anonymous speech. The Privacy Policy stated:

We also reserve the right to use, and to disclose to third parties, all of the information collected from and about you while you are using the Site in any way and for any purpose, such as to enable us or a third party to provide you with information about products and services that may be of interest to you. In some cases we will use and/or share only non-personally identifiable information, but in other cases we may use and share personally identifiable information.

The District Court rejected this argument as well because “a contractual waiver of constitutional rights ‘must, at the very least, be clear.’” Therefore, the District Court declined to reveal the identity of the anonymous poster.

Leaving aside the free speech issues, the case also highlights some of the issues with the current state of privacy regulation on the web in the US. First, FTC’s aspirational Fair Information Practice Principles seek to stop such overreaching privacy policies. The Notice principle, which is “the most fundamental” of the principles, states that the entity collecting the data should “properly inform” consumers “of the uses to which the data will be put” and the “identification any potential recipients of the data.” Therefore, stating that the data transferred to any third party for any purpose does not properly inform a consumer. Nevertheless, this inconsistency does not create any liability because the FIPPs are only guidelines and they are not enforceable. FTC expects the industry participants to regulate themselves and only appears to bring enforcement actions against the most egregious of violators.

In contrast, websites in jurisdictions with omnibus data protections laws, such as the EU, would be hard pressed to implement such privacy policies. The EU Data Protection Directive states in Article 6 that personal data must be “collected for specified, explicit and legitimate purposes and not further processed in a way incompatible with those purposes.” Since the purposes in the privacy policy are neither specified nor explicit, any further use by the collecting entity or a third party would violate the Directive and its national counterparts.

However, this difference in approaches to privacy regulation may be changing. Commentators and regulators in the EU and the US recognize the shortcomings of the Notice-Choice paradigm and are moving away from it. Recently, in the Madrid International Conference of Data Protection and Privacy Commissioners highlighted some of the issues with Notice-Choice and the need to move towards an Accountability standard. In fact, the regulators signed a document to that effect during the conference. Two weeks later, the Department of Commerce Conference on Cross Border Data Flows, Data Protection and Privacy reiterated the same message—primarily because the attendees were the same people. Finally, just last Monday, several attendees to the FTC Privacy Roundtable highlighted the issues with self-regulation in the US and the need to move to an Accountability standard. In fact, the FTC hinted at the need to refine the current Notice-Choice paradigm with the Sears enforcement action. Given the regulatory momentum, we will likely see the FTC providing more guidance for websites on privacy issues soon after the Privacy Roundtables, at the very least in the behavioral advertising realm.

The case is Sedersten v. Taylor, No. 09-3031-CV-S-GAF, 2009 U.S. Dist LEXIS 114525 (W.D. Mo. Dec. 9, 2009).

See also Venkat Balasubramani’s comments via Eric Goldman’s Blog.


Monday, December 14, 2009

Supreme Court to Review Electronic Communications Case

by Mehmet Munur

The Supreme Court will review a 9th Circuit Court case finding that the unauthorized search of employee text messages on an employer provided text messaging pager may have violated the employee’s privacy rights despite a written policy stating that the employees should have no expectation of privacy.

Once again, the Supreme Court’s review of the case highlights the complexity of employee electronic communications in the workplace. With the extensive use of blogging and social media in the workplace, it is becoming more and more important to put in place explicit electronic communication policies and to implement those policies uniformly. You can find our previous blog post on the 9th Circuit Opinion here.

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