Social Media And Ethics: Avoiding Costly Mistakes

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SOCIAL MEDIAand ETHICS:Avoiding Costly MistakesPanelistsJUDGE CURTIS E.A. KARNOWSuperior Court, County of San FranciscoJAMES S. DeGRAWPartner, Ropes & Gray LLPERIC J. SINRODPartner, Duane Morris LLPSocial Media and Ethics:Avoiding Costly MistakesRICHARD zITRINOf Counsel, Carlson Calladine & Peterson LLPVITALy GASHPARModerator2.0 CLE creditsWednesday, January 23, 2013in this Recorder Roundtable, distinguished panelistswill discuss the ethical pitfalls in using social mediato investigate and prepare cases. From a judicialperspective to views from practitioners who havedeveloped expertise in the field, attendees willlearn the latest information on avoiding costlymistakes in use of social media in their practices.This 2-hour, live cLe panel includes time foraudience questions and ce — familiarity with socialmedia and meeting the standard of care9:30–10:00 advertising/solicitation — social mediapostings and advertising — includingnew state bar opinion10:00–10:15 social Media Relationships —Facebook friends and rules ofprofessional responsibility10:15–10:30 investigations — issues with socialmedia investigations of witnesses,opposing parties, jurors10:30–11:00 audience Q&a8:30 to 9 am – registration,networking andcontinental breakfast9 to 11 am – programCommonwealth Club595 Market Street, 2nd FloorDowntown San Francisco(Montgomery Street Bart/Muni)Index to supplemental materialsCapital Accounts: Like to Brag on Twitter?Don’t Forget the Fine Print . . . . . . . . . . . . . . 5Bill Aims to Protect Public Employees’Social Media Accounts . . . . . . . . . . . . . . . . 6Whose Friends Are They Anyway?. . . . . . . 7Marketing Through Social Media . . . . . . . 8Is Lying on Facebook a Crime? . . . . . . . . . 10Opinion No. 2012-186. . . . . . . . . . . . . . . . . . 13RECORDERESSENTIAL CALIFORNIA LEGAL CONTENT1035 MARKET ST., SUITE 500 SAN FRANCISCO, CA 94103 415.490.9990

2 The Recorder RoundtableBest Practices: SOCIAL MEDIA AND ETHICS January 23, 2013Established in 1877Main Office and Editorial Department1035 Market Street, Suite 500San Francisco, California 94103 415.490.9990E-mail: recorder-editor@alm.com www.therecorder.comCLASSIFIED 855.852.9562 EXt 6 DISPLAY ADVERTISING 415.490.1048SUBSCRIPTION 877.256.2472 PUBLIC NOTICES ADVERTISING 415.490.9991PUBLISHER: MOLLY Millermmiller@alm.com 415-490-1041EDITOR IN CHIEF: Greg MitchellGMITCHELL@alm.com 415-490-1060MANAGING EDITOR: ALEXIA GARAMFALVIagaramfalvi@alm.com 415-490-9939ASSOCIATE EDITOR: GINNY LaROEGLAROE@ALM.COM 415-490-9935SUBSTANTIVE LAW EDITOR: Vitaly GashparVGASPHAR@alm.com 415-490-1062SENIOR WRITER: SCOTT GRAHAMSGRAHAM@ALM.COM 415-490-1032Photography Editor: Jason DoiyCopy CHIEF: Sheela KamathReporters: VANESSA BLUM VBLUM@ALM.COMCynthia Foster CFOSTER@ALM.COMJULIA LOVE JLOVE@ALM.COMCheryl Miller CMILLER@ALM.COMJOSHUA SISCO JSISCO@ALM.COMContributing Writers: William W. Bedsworth,Lisa Holton, Jared L. Kopel, KATE MOSER,Robert M. Smith, Lawrence J. Siskind,Teresa Wall-cyb, richard zitrinPHOTOGRAPHER/VIDEOGRAPHER: HILLARY JONES-MIXONProduction Director: Tess HerrmannAssistant Production Director: DavID PalmerOpinion ServiceS Director: Jack WalkerController: Janice TangAccountant: Reynaldo Mara VillarinMARKETING MANAGER: SURAJ PATEL, JDSPATEL@ALM.COM 415-490-1059ADVERTISING: SMALL LAW; LEGAL SERVICES: Charlie Shively,Sr. Account ExecutiveCSHIVELY@ALM.COM 415-490-1054ADVERTISING: LARGE LAW: Brendan Cottrell,Sr. Account ExecutiveBCOTTRELL@ALM.COM 415-490-1050REPRINTS: Syndia Torresstorres@alm.com 347-227-3170HELP WANTED ADVERTISING:CAROL ROBERTSON 347-227-3148Public Notices Advertising Manager:Robert Salapuddin 415-490-9965Public Notices Advertising Assistants:Alexandra Elvitsky, Lam TruongGROUP SUBSCRIPTIONS: David HowleyDHOWLEY@ALM.COM 415-490-1056SUBSCRIPTION SERVICE: 877-256-2472IT Manager: William SpeersALM SENIOR MANAGEMENTBILL CARTER: PRESIDENT & CEOKevin H. Michielsen: SVP/CHIEF OPERATING OFFICEREric F. Lundberg: SVP/Chief Financial OfficerJeffrey K. Whittle: SVP/Chief Technology OfficerLenny Izzo: SVP/CHIEF Marketing OFFICERKevin J. Vermeulen: SVP/SALESMichael Desiato: VP/Real Estate MediaAric Press: VP/Editor-in-ChiefMOLLY MILLER: VP/THE RECORDER Copyright 2012. All rights reserved. Further duplication withoutpermission is prohibited. For permission to reprint articles that appearin The Recorder or to use material electronically please call SyndiaTorres, (347) 227-3170. For permission to photocopy articles that appearin The Recorder please contact Copyright Clearance Center, Inc (CCC).(978) 750-8400, http://www.copyright.com.JUDGE CURTIS E.A. KARNOWJAMES S. DeGRAWSuperior Court, County of San FranciscoPartner, Ropes & Gray LLPJudge Karnow serves in the Complex Litigation Department of the Superior Court of California, San Francisco County, and is Presiding Judgeof the Appellate Division. He received his A.B.cum laude from Harvard University in 1974, andhis J.D. from the University of Pennsylvania in1977 where he was an editor of the Law Review.While in private practice, Judge Karnow specialized in antitrust, intellectual property, computerand internet law. He has served on many ofCalifornia’s Judicial Council committees andgroups devoted to technology, electronic discovery, rules reform, temporary judges, civics andthe law, appellate procedure, sealing records andsummary judgment. Judge Karnow has lecturedat schools including the University of MichiganBusiness School, Yale Law School, and the HaasSchool of Business at the University of Californiaat Berkeley, University of San Francisco School ofLaw, Hastings College of the Law, and he teachesa variety of civil litigation courses to new andexperienced California judges. He is consulting editor on California Civil Discovery Practice(CEB), Handling Experts in California Courts(CEB), and is the author of (among other books)How The Courts Work and Future Codes: Essaysin Advanced Computer Technology and the Law.Judge Karnow is also a contributory co-author ofCalifornia Civil Procedure (West 1991); eBusinessand Insurance (CCH:2001); International eCommerce (CCH:2001); and Network Security: TheComplete Reference (2004). The subjects of JudgeKarnow’s law review articles range from how touse precedent, summary judgment, and legaleducation, to game theory, bail, and artificialintelligence.Jim DeGraw is a corporate technology partnerwho works with clients to anticipate and handlethe legal issues presented by ever-changingtechnologies. He regularly leads transactions forwhich technology or IP assets are key drivers,provides clients with strategic advice on protecting and maximizing their investments in technology, and advises clients on handling and securingthe data their businesses collect and process. Jimbrings to any representation his computer science background and his experience working forfirm clients on technology matters while basedin Asia.In addition to technology-focused mergers &acquisitions, Jim’s transactional work includesworking with clients to structure complicatedand strategic technology relationships, includingcross-border joint ventures, complex businesslicensing transactions and strategic businessprocess outsourcing relationships.Jim also provides strategic advice to clients onhandling and protecting data, technology, andthe intellectual property assets of their businesses. This includes helping clients develop andprotect businesses whether through targetedmarketing campaigns by consumer productcompanies or portfolio licensing programs by academic research centers, and navigating myriadintellectual property issues to put together comprehensive protection strategies. It also includesadvising clients on their collection, handling andprotection of data by their organizations, and fornavigating the opportunities and concerns raisedby changes to data privacy and security laws andby the growth of social media.

3 The Recorder RoundtableERIC J. SINRODBest Practices: SOCIAL MEDIA AND ETHICS RICHARD ZITRINPartner, Duane Morris LLPOf Counsel, Carlson Calladine & Peterson LLPEric J. Sinrod (ejsinrod@duanemorris.com;415-957-3019) is a partner in the San Franciscooffice of Duane Morris LLP. He is a strong andexperienced advocate for his clients and has represented them before the United States SupremeCourt, other appellate courts, and in a number ofjury and court trials, arbitrations and mediations.His practice has covered many important Internet, software, software defect, technology, intellectual property (trademark, copyright, patent,trade secrets), information, communications,commercial, antitrust, eDiscovery, education, environmental, and insurance coverage issues. Hehas represented domestic and international clients in major class actions and where hundredsof millions of dollars have been at stake. He alsohas handled numerous matters for smaller companies and individuals. Eric has been highlightedby an outside publication as “the leading IPattorney in the land,” and he has been selected byhis peers as one of the “Best Lawyers in America”in the area of Cyber Law and annually as a “SuperLawyer” for Business Litigation. Eric has a reputation for being immediately responsive to clientsand working efficiently and within budgets. Heis considered a thought-leader on electronicdiscovery issues, which can lead to great cost savings for clients. While Eric is creative in comingup with solutions to resolve disputes, he will fightstrategically when that is in the best interests ofclients. He also serves as a mediator, and strivesto resolve disputes efficiently and effectively forall parties. After a recent matter in which Ericacted as mediator, one attorney stated: “Eric,we were very happy with how you handled themediation; I would use you again in a heartbeat.”He also is innovative and entrepreneurial; forexample, he was an early pioneer and developerof Internet law, he started the first Cyberlaw blog,and he also spearheaded Duane Morris’ mergerwith Hancock, Rothert & Bunshoft.Richard Zitrin is of counsel to the San Francisco firm of Carlson, Calladine & Peterson,LLP, and a Lecturer in Law at the University ofCalifornia, Hastings College of the Law. He spent34 years as a named partner in his own firm, hastaught legal ethics at Hastings since 1994 and atthe University of San Francisco School of Lawfrom 1977 to 2005, where he became coordinatorof the course’s curriculum in 1991 and from 2000to 2004 was the founder and first Director of theCenter for Applied Legal Ethics. He is certified asa specialist in Legal Malpractice by the CaliforniaState Bar Board of Legal Specialization.Richard’s principal practice involves a widerange of attorney conduct issues, includinglitigating legal malpractice claims on behalf ofplaintiffs and advising attorneys on issues of legalethics, attorneys’ fees and malpractice avoidance.He has extensive experience and training as botha trial lawyer and mediator. He has tried approximately 50 cases to verdict, has taught trial practice at USF, and has mediated extensively sincethe late 1970s. He has co authored a general-audience book on lawyers and the American legalsystem, The Moral Compass of the AmericanLawyer (Ballantine, 1999), a textbook that emphasizes a practical approach to teaching ethics,Legal Ethics in the Practice of Law (LEXISNEXIS,4th edition forthcoming, 2013), and an annuallyupdated book comparing the rules of ethics,Legal Ethics Rules, Statutes and Comparisons(LEXISNEXIS, 2013). He has published widelyon issues of legal ethics in law review articles, asa columnist for American Lawyer Media (ALM),and in op-ed pieces in general circulation media.He currently writes a column for ALM and TheRecorder entitled “The Moral Compass.” Hespeaks nationally and locally to lawyers, judges,law students, bar groups, and other professionalorganizations on ethics, malpractice, and otherattorney practice issues.January 23, 2013VITALY GASHPARModeratorVitaly Gashpar is the substantive law editorof The Recorder and therecorder.com, a printweekly newspaper and a daily website providingessential California legal content. Vitaly joinedThe Recorder in 2010. He is licensed to practicelaw in California and Illinois and received his JDfrom The John Marshall Law School. Prior to joining The Recorder, Vitaly practiced in the field ofcommercial litigation in Chicago with the firm ofRobbins, Salomon & Patt.

4 The Recorder RoundtableBest Practices: SOCIAL MEDIA AND ETHICS January 23, 2013The Social Media and Ethics Roundtable is sponsored by:Founded in 1999 by attorney StacyMiller Azcarate, Miller Sabino & Leeprovides attorneys to a diverse range ofclients. We assist clients in accomplishing their expansion goals by providing abroad range of services including staffing newly opened branch offices, finding associate attorney candidates andpractice groups to complement a firm’sparticular focus, and locating in-houseattorneys.As a preeminent recruiter and advisorin the legal placement field, Stacy hasplaced numerous large groups, assistedfirms with mergers, opening branchoffices and single attorney placements.She has been quoted in the Wall StreetJournal, The Recorder, The National LawJournal, The American Lawyer, The WallStreet Journal Blog, Abovethelaw.comand GlassHammer.com. She frequentlylectures and writes articles on legalrecruiting, professional developmentand the business of the legal profession. Stacy is a member of the CA Bar,President of The Lawyers’ Club of SanFrancisco and a member of the USFSchool of Law Board of Governors.Certified Reporting combines morethan 25 years of reporting experiencewith the latest in technology and security.The company provide clients with afull range of deposition services, professional attention and uncompromisingquality at highly competitive rates.Serving Northern California, CertifiedReporting specializes in the San Francisco bay area. They are experienced inconstruction defect, patent, intellectualproperty, technical, personal injury,medical, and arbitration proceedings.Their court reporters have an average of15-years of deposition experience andshare CRS’ commitment to customerservice.Certified Reporting’s founder, WendyGraves has over 30 years experienceas a Certified Shorthand Reporter. Intaking thousands of depositions andhundreds of arbitrations she has earneda reputation for accuracy and expediency. Wendy has worked with a widerange of clients from sole practitionersto national firms.

5 The Recorder RoundtableBest Practices: SOCIAL MEDIA AND ETHICS Capital Accounts: Like toBrag on Twitter? Don’tForget the Fine PrintBy Cheryl MillerThe RecorderJanuary 4, 2013SACRAMENTO — Facebooking lawyers beware. Sharingand celebrating a legal victory with your e-friends is fine. Buthighlighting that win while simultaneously asking “Who’snext?” could get you in trouble.That’s the stand of the State Bar’s Standing Committeeon Professional Responsibility and Conduct. In a recentlyreleased formal opinion, the committee warned that professional rules governing legal advertising and communicating“are not relaxed merely because such compliance might bemore difficult or awkward in a social media setting.”The opinion was spurred by what bar officials describedas a hypothetical scenario: Over the course of a month, anattorney tells about 500 personal and professional Facebookfriends things like “Case finally over. Unanimous verdict!Celebrating tonight.” And: “Won another personal injury case.Call me for a free consultation.”Committee members decided that the ethical line for hercomments turn on whether they concern her “availabilityfor professional employment,” a test established in Rule ofProfessional Conduct 1-400. “Case finally over . Celebrating tonight” doesn’t cross the line because it doesn’t offer thelawyer’s services, the committee said.Conversely, posting “Another great victory in court today!My client is delighted. Who wants to be next?” goes too far,according to the opinion. The “Who wants to be next” solicitation triggers a host of restrictions. Proclaiming her client delighted violates a ban on distributing testimonials unless theyinclude a disclaimer. Also, asking “Who wants to be next?”could be interpreted as improperly guaranteeing or predicting“the result of the representation.” Finally, making a pitch topotential clients should be accompanied by the word “advertisement,” “newsletter” or some other verbal cue alertingreaders to the lawyer’s monetary interest, the committee said.Likewise, the committee found the post “Won another personal injury case. Call me for a free consultation” troublesomebecause it doesn’t include the word “advertisement.”While specifically addressing a Facebooking attorney, theopinion covers all forms of social media. That, potentially,means some wordy disclaimers would have to be crammedinto a 140-character-capped Twitter post.“Attorneys may argue that including this wording for each‘communication’ posting would be overly burdensome, anddestroy the conversational and impromptu nature of a socialJanuary 23, 2013media status posting,” the committee wrote. “The committeeis of the view, however, that an attorney has an obligation toadvertise in a manner that complies with applicable ethicalrules. If compliance makes the advertisement seem awkward,the solution is to change the form of advertisement so thatcompliance is possible.”The formal opinion, which isn’t binding but could carryweight with the State Bar Court and state Supreme Court,offered bar officials the chance to wade into the convolutedarena of legal marketing on social media. A survey of lawyers, marketers and administrators released in early 2012 byRecorder affiliate ALM Legal Intelligence found that almost85 percent of lawyers working at firms represented by surveyrespondents used Twitter, Facebook, LinkedIn or other socialnetworking sites. Nearly 90 percent of respondents said using social media in their marketing, recruiting and businessdevelopment efforts was “a high priority.”David Cameron Carr, a San Diego attorney who specializesin legal ethics and disciplinary defense, said in an email thatthe opinion “seems sound” and reflects what he’s preachedin continuing education courses for some time. But he alsonoted that he’s never had a client come to him with a concern,a problem or a State Bar complaint involving social media.“From the discipline perspective, the whole issue seems tome overblown, reflecting the popular and media obsessionwith social media, rather than any dramatic new set of ethicalissues,” Carr said.Bar staff said they couldn’t remember what if anythingspurred the request for an ethics opinion. Such requests aresupposed to be hypothetical in nature and not based on exactcircumstances, Bar spokeswoman Laura Ernde said. Bar staffers said they couldn’t immediately remember a lawyer beingdisciplined for similar actions.BUDGET TIMEThe Legislature returns to work on Monday and all eyes willimmediately turn to Governor Jerry Brown, who is expected torelease his annual budget on Thursday. Judiciary leaders willbe looking for three key items in the 2013-14 spending plan.First, budget watchers both inside and outside of the Capitol seem resigned that the governor will propose swiping 200million in trial court reserves a year earlier than planned. Thatwill kick the issue to legislators, who can expect numerousvisits and phone calls from anxious presiding judges trying tofigure out how they’re going to pay the bills. Lawmakers couldtry to find the money somewhere else, but where? Courtsrarely fare well when cutting them means salvaging schoolsor social welfare programs. Could the remaining money in thecourts construction fund be at risk?Second, Judicial Council members are still hoping againsthope that the budget includes money to pay for the LongBeach courthouse. Again, the Legislature will have severalmonths to decide whether to cover the first payments on thenew courthouse — freeing up millions in bond mon

3 The Recorder Roundtable Best Practices: SOCIAL MEDIA AND ETHICS January 23, 2013 ERIC J. SINROD Partner, Duane Morris LLP Eric J. Sinrod (ejsinrod@duanemorris.com; 415-957-3019) is a partner in the San Francisco office of Duane Morris LLP.

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