Social Networking and the Model Rules

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3 Νοε 2013 (πριν από 3 χρόνια και 2 μέρες)

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Social Networking and the
Model Rules

Social Networking and the Rules of
Professional Conduct

Advertising and Solicitation

Rules 7.1, 7.2, 7.3


Rules of Professional Conduct apply even in cyberspace

Florida Bar has published guidelines for networking


Pages of lawyers on social networking sites used

solely for social purposes are not subject to advertising


Pages used to promote the lawyer’s or law firm’s

practice are subject to the lawyer advertising rules and

must comply

Invitations sent directly from the site via instant

messaging to a third party are solicitations

Social Networking and the Rules of
Professional Conduct


Rule 1.6

Attorneys may be revealing

more than they think when blogging or on their web site

If attorney is using cloud computing, check the service. The
licensing agreements for some services, such as Google, provide
that the data belongs to the host site and not the person
uploading the data.

This could violate confidentiality

Interactions with members of the public

Rule 1.18, 4.2, 4.3

the attorney form an attorney/client relationship?

Check Attorney web site

Unauthorized practice of law

Rules 5.3, 5.5

interaction with clients using social networking

Employees may
not give legal advice.

Be cautious about “friending” on
social networking sites

Interactions with judges, witnesses, jurors and other

Rules 3.3, 3.4, 3.5


should not do on line what they would not do in


A North Carolina judge received a public reprimand for
communicating with an attorney Facebook friend during trial.
Before the Judicial Standards Commission, Inquiry No. 08
Public Reprimand, B Carlton Terry, Jr.

Florida Supreme Court Judicial Ethics Advisory Committee
determined a judge may not add lawyers who may appear before the
judge as a friend on social networking sites.
Florida Supreme Court
Judicial Ethics Advisory Committee, Opinion No. 2009

South Carolina Advisory Committee on Standards of Judicial
Conduct, Opinion No. 17
2009: A judge may be a member of
Facebook and be friends with law enforcement officers and
employees of the Magistrate as long as they do not discuss
anything related to the judge’s position as magistrate.

Attorneys Blogging
About their Day…

Had the craziest day today

in court for four hours

on a DUI case for a guy from Peru who works

behind the desk at the People’s Bank downtown. I

don’t think I’ve ever seen a blood alcohol level that

high. His girlfriend/witness didn’t show up because

they had a fight last night and she moved out, which

made my case all the harder. But I’m not letting it

spoil my date tonight with the hot guy I met at Earl’s

on Friday!

Illinois Disciplinary Board v. Peshek,
Commission No. 09 CH 89 (May 8, 2010):

Complaint filed against Public

Defender for blogging about her cases

when blog was open to the public.

Attorney lost her job as a result and

was suspended from practice for 60

days for violations of RPC 1.6 and 3.3,

among others.

More Bad Blogging…

The Florida Bar v. Conway: Attorney received

Public reprimand for
derogatory comments about a

judge on an Internet blog.

Social Networking Activities
That Can Result in Discipline

Texas prosecutor was denied a second continuance

for a funeral after the judge checked her Facebook page

And found postings about partying, not grieving. The

Judge also reported the lawyer to a her supervisor in the

District Attorney’s Office.

Murder Mistrial Declared

September 14, 2012 in Miami
Dade, Florida

Defendant: Fermin Recalde accused of stabbing

his girlfriend to death in 2010

Recalde’s family brought him fresh clothes to wear
during trial including a pair of leopard skinned

Public Defender, Anya Cintron Stern took a picture of
underwear and posted it to her personal FB page with a
caption asking why the family thought this was
appropriate for court

Post was marked private but someone on her friend’s
list saw it and showed it to the judge

Judge dismissed her and declared a mistrial

Murder Mistrial Declared

Public defender’s office fired her

Attorney also posted comments on FB page
questioning her client’s innocence

Employer more upset about these comments than the
picture of the underwear posted to FB.

Should Investigators Use
Social Networking

….. but

how you should use it depends on your jurisdiction’s
evidentiary rules and policies and procedures.

You should not use it until you are

trained to do so.

Investigations Involving Attorneys

Who use Cloud Computing

Cloud Computing

The Basics

What is Cloud Computing?

Wikipedia defines cloud computing as

location independent computing, whereby shared

servers provide resources, software, and data to

computers and other devices on demand.”

How Does it Work?

The chief characteristic, and many think primary
benefit, of the cloud, is that it is not located in a fixed

or static location.

Users can access their information from anywhere, by

accessing the cloud.

How Are Clouds Being Used
by Law Firms?

Many solo practitioners and small firms use

clouds to alleviate the cost and maintenance of

site hardware.

Access information and data from anywhere using a


Ease and convenience, coupled with virtually unlimited

storage space, are often touted as benefits of using the


Many firms of all sizes are using clouds as offsite data


Some companies utilize a hybrid situation

maintenance of some in
house hardware using the
cloud for alternatives like E
mail access.

What Should be

Where is the server located?

What does the contract between Attorney and

cloud provider say:

Is the contracting party the party actually controlling data or is
there a third party contractor involved? Could lead to breach of

What extra backup programs are used? Can the lawyer

still access the information?

Some vendors claim ownership of

the date, limit access to the data, or

reserve the right to delete data

without notice in the event of a

breach of the contract.

What Should be

Is the Data protected?

Is the data encrypted?

Is it confidential?

How available is it? How readily does a lawyer have

access in order to ensure compliance with the Rules of

Professional Conduct?

Can the lawyer audit the provider to ensure security

standards are being met?

Compliance with
Regulatory issues

Are there independent regulatory rules to be

considered when storing data on the cloud? Is this

different when the cloud is located in another country?

(Ex: HIPPA, USA Patriot Act, etc.)


if the server is located abroad, does

that country have confidentiality rules to protect client

data the way the United States does?

What happens in the event
of a data breach?

How quickly are customers notified if a

breach occurs?

Who bears responsibility and cost of a breach?

unauthorized access risks

external hacking or

unauthorized access or use by cloud provider’s


Does the lawyer tell clients he is using a cloud?


is this something a lawyer must disclose


Who Has Access

to Data

Who has access to the lawyer’s




Outside vendors



Keeping data secure is key!

Rules to Consider

Rule 1.6 Confidentiality

Are lawyers

the confidentiality of client information
when storing it on the cloud?

Rule 1.4 Communication

Rule 1.15 Safekeeping Property

Rule 1.16, Declining or Terminating Representation

Is the information in the client’s file secure? Does the
lawyer have immediate access? Can the lawyer

get copies for a client quickly if requested to do