2017 Annual Florida Bar Convention: Social Media Ethics

Episode Notes

Transcript

The Florida Bar Podcast

2017 Annual Florida Bar Convention: Social Media Ethics

06/26/17

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Intro: Welcome to The Florida Bar Podcast, where we highlight the latest trends in law office and law practice management to help you run your law firm, brought to you by The Florida Bar’s Practice Resource Institute. You are listening to Legal Talk Network.

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Jonathon Israel: Hello, and welcome to The Florida Bar Podcast brought to you by The Practice Resource Institute on Legal Talk Network. This is Jonathon Israel recording from The 2017 Annual Florida Bar Convention in Boca Raton, Florida. Thank you for joining us today.

Joining me today, I have Joe Corsmeier, who concentrates his practice in the area of Social Media and Ethical Considerations for Florida attorneys need to think about as they start to advertise their services on social media and social media platforms.

So that’s going to be the focus of our talk today, and before we do that, let’s learn a little bit, something about our guests. Joe, do you mind telling our audience what you do for a living and where you work?

Joe Corsmeier: I will. I do. I’m a sole practitioner. Jonathon, I started out as a State prosecutor in Pinellas Pasco County from 1986 to 1990. I spent eight years as a Florida Bar prosecutor, 90-98 in the Tampa office. I now have a solo practice which I’ve had for quite a while. I started out with a firm right in 1998.

The major areas of my practice as you mentioned are Social Media, but also General Ethics. I give ethics advice to many lawyers and law firms around the State. I represent lawyers who have Bar complaints, I defend them. I also represent those. I call lawyer wannabes meet the Bar admission cases, and I also represent every licensed professional like doctors and nurses in their agency matters, as well as I’m hired as an expert witness in legal malpractice, conflict of interest and disqualification matters. It’s kind of my elevator speech.

Jonathon Israel: Okay, awesome. So, two really hot topics right now are, obviously Social Media and Ethical Considerations for Attorneys. It seems like just about every single day you see a new social media channel popping up out there for attorneys to use in their practice. How do you advice attorneys of where it is if they want to start, if they want to actually get into the social media game? I think everybody has some sort of a personal presence on social media, but how do you translate that into the business world and keep some sanity between the two?

Joe Corsmeier: Absolutely, first I start with the advertising rules that were changed in 2013, every lawyer communication whether it be online, offline, wherever we might be, Facebook is now subject to the advertising rules, and of course, everything the lawyer does in whatever media is subject to the general Bar rules relate to conflict of interest things like that. So, that’s where I start. In just some of these specific areas, can a lawyer have a presence on Facebook, have a law firm presence or even a personal presence, and if so, what are the restrictions.

Facebook personal and business are fine, as we know and everybody knows, Facebook was started as a place to pick up girls, sorry for that joke, but then it’s now expanded more into the business area where law firms — I have a Facebook page. I must confess, it’s not all that detailed but my blogs are on there. I’m a blogger and I send emails out with my blogs. I’m on LinkedIn, actually I start the blog on WordPress. I created on WordPress and then it migrates to LinkedIn and Twitter and my Facebook page and things like that, but I’m very careful and I’ll just make or tell the audience, blogs. It’s important to understand that blogs can be advertisements. They also can be subject to prosecution of the lawyer if there’s false statements made or other violations of our rules.

So the fact that a person blogs, like for instance in my blogs, what I do is I provide information. I don’t – what I mentioned just a minute after I finished this sentence, but I don’t provide my positions on issues, I just provide pure information and I also don’t solicit somebody. I don’t say, hey, hire me, I’m the greatest ethics lawyer. I don’t even say, hey, I’m — I do have a little thing in my – a little disclaimer in the bottom explaining what I do for a living essentially what I just told you, but as far as — and the reason I am going to mention positional conflicts is, as we were talking about before we came on air.

If a lawyer takes a position contrary to a position that lawyer is taking in one forum and then it’s contrary to the position of the lawyer is taking in another forum that could certainly form the basis for a conflict of interest which might result in disqualification.

Jonathon Israel: Okay.

Joe Corsmeier: Prior to social media, it was always litigation where the lawyer take a position on behalf of a client in one case and then take a contour position in another case. It wasn’t always that way, but that was a primary way to do it.

(00:05:03)

Now that we have social media, for instance, if I blog my position on a certain issue and then represented a client and took the oppositional position, the opposing position, I would be subject to potential disqualification under that rule or that analysis that the conflict of interest — for the conflict of interest for positional conflict of interest. So that’s one issue for lawyers when they’re on social media.

Another couple of points I’ll make is, should a lawyer friend a judge for instance on social media? Well, there’s an ethics opinion out there, both to judges and lawyers. If the lawyers involved litigation and they’re trying to friend surreptitiously to get information that’s not public, say from an important witness or even from the opposing party, that’s prohibited. That’s just like the lawyer trying to get information surreptitiously during the old days when they call on the phone and pretend like they are taking a survey. It’s the same analysis, but if it’s public, the ethics opinions tell us, and I think the Bar would say that we’re allowed to access as lawyers the public, Facebook page of the opposing party, the important witnesses because that’s just like look as one ethics opinion says, it’s like looking at a magazine. It’s in the public record, you’re looking at the court file, even though that’s not analogous, but it’s public.

So if we try to get private information by sending a friend request, it’s pretending like because no lawyer is going to send a friend request, say, hey, I represent the opposing party and I’m trying to get information from you. Will you friend me? All that it is a friend request that is out there in the vacuum, so lawyers aren’t allowed to do that but were allowed to as lawyers look at Facebook pages.

One of the other issues with regard to Facebook is whether the lawyer can advice a client to remove damaging information from Facebook, they represent them in us, in either a civil or a criminal case and that question has been kind of hanging out there. There’s a fairly recent ethics opinion. That says that lawyers can do that as long as it’s not spoliation of evidence which means destroying evidence that would be effectively trying to keep the other side from getting it.

Jonathon Israel: Right, is that ethics opinion 14-1?

Joe Corsmeier: That’s it, yes, absolutely it. Yeah, you’re familiar with it. So that basically says we’re allowed to do it as lawyers but we need to preserve it. I am so sure you saw that.

Jonathon Israel: Oh yes.

Joe Corsmeier: Yes?

Jonathon Israel: Yeah.

Joe Corsmeier: So that’s an ethics opinion that lawyers should abide by with regard to the Facebook situation and potential violations of our rules.

Jonathon Israel: Right, so a couple interesting and kind of scary points that I just want to kind of ask you about. So growing up in a social media world, where I definitely had a social media presence before I had a professional presence, how do you see lawyers handling that like with the conflict of interest for maybe in my younger more and mature days I had some posts that don’t really correlate with where I’m trying to practice. Now, where do you see that going, is there a case history or precedent where lawyers have maybe gotten themselves into trouble for earlier posts?

Joe Corsmeier: That’s a good question. That’s probably an emerging thing that’s going to happen because — and how about pictures. Oh, like, doing something like that’s illegal, smoking something, doing whatever, that’s a really good question. I’m not aware of any opinions or cases that address that. It doesn’t mean there aren’t around the country, but I’m just not aware of them, but yeah, that’s a really good question, but here’s my answer to what the question would be, is what should the lawyer do?

I believe that a lawyer can remove that with no problem, but should be aware of the fact that’s there and make sure that they look at their social media presence, especially if they had a youth that wasn’t — I’ll be honest. I’m glad Facebook and social media wasn’t around when I was in high school because I mean we all are kind of — but no – yes, I should say, the lawyer has every — can remove that kind of stuff and actually should remove that stuff from a social media platform, whatever that might be.

Jonathon Israel: Right. That’s a good point. Unfortunately, there’s only so much you can control and who knows what your friends are posting.

Joe Corsmeier: That’s absolutely right. It can migrate wherever to. It can be at a different location. It can go places that we don’t want it to go. The Internet can be forever as you well know historically, so yeah, that’s a really good point, and so, I guess the advices don’t put the stuff on social media in the first place, but we’re all young and dumb some.

Jonathon Israel: Right.

Joe Corsmeier: You accept it, I’m sure, but I know I was.

Jonathon Israel: Right.

Joe Corsmeier: So that’s a good question.

Jonathon Israel: Yeah, and I think that’s another point to trying to maintain two profiles, your professional profile as well as your personal profile on the other side and doing the best job that you can of keeping those two separated, never shall the two meet.

Joe Corsmeier: Exactly and I’ll tell you one of the things that brings up is employment opportunities. I mean, as generations grow up with social media, there should be understanding and it’s mature enough now to where the understanding would be don’t let the twain meet as you said and be very careful about what gets posted with regard to activities, let’s just put it that way, but that’s a really good point and the young lawyer should be aware of that.

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Jonathon Israel: Oh yeah, I would hope and if not we’re going to make them.

Joe Corsmeier: Yeah, we’re going to make them, yes.

Jonathon Israel: So transitioning to now may be how to effectively use social media in your practice. So maybe I’m not a young lawyer, maybe I’m a more seasoned attorney and I want to just start getting my foot in the door and how can I use these tools out there that kind of generates some business coming back to me. What is your advice, best platforms to get into, where should I start?

Joe Corsmeier: Absolutely, I found that blogs are really helpful. A blog is something that should be informational and not a solicitation, and that’s what I tell my clients and I just said that in the seminar just gave, you don’t want to blog and say, hire me, I’m the best, and not provide — the primary focus needs to be informational and YouTube’s the same way. Lawyers — and you’re probably aware of this, many lawyers, and I’ve advised lawyers on this, produce YouTube videos. Actually, they produce videos that get put on YouTube and they also put them on their website, and for instance, I have a lawyer friend who actually this is just one instance of many who does DUI and he’s down in my area, in Clearwater area, and he does YouTube videos and you can click in his name and all the YouTube videos come up, but it also goes on their website, so that can be seen by many people and also key in the important words, and that’s one thing I’ll mention too about social media, having somebody help with the visibility of social media is really important, bringing it up in the SEO.

In my practice, it doesn’t really — it’s not a big deal because there aren’t many of us that do my area practice, so I’m not as concerned about that but lawyers that for instance do personal injury. They have different ways, you can purchase an ad on Avvo to promote your practice. Make sure, it’s vetted, be first, you can purchase ads on various platforms to make sure that your name is out there.

One thing I will mention is, there have been ethics opinions that have said that the lawyers can’t manipulate things to bring up their SEO like, put fake stuff and there was one example of a law firm that actually had an opposing law firm, so when they clicked on that law firm, it would drop down to their law firm, so it was like promoting traffic to their law firm so that was improper because it was essentially an SEO fraud or manipulation of the SEO, but there’s other ways to manipulate if you want to use that word the SEO. Have the keywords, and blogging helps, I mean, blogs will go bring up the visibility as well.

Jonathon Israel: Definitely, the another area of concern would permissibly be clients and their use of social media if you’re litigating maybe a family law case, do you have any advice to our listeners out there that maybe there are some kind of policies or procedures, maybe they should have — either discussing with their clients or handing out to their clients as they get involved in a case of how they should be treating their social media profiles as the case of all?

Joe Corsmeier: Absolutely excellent question. Every lawyer that deals with – I mostly relate this to unsophisticated clients although people that are claimed to be sophisticated may not have this information.

First of all, there should be information given to that client in writing indicating, hey, in order to protect yourself or maybe have a meeting and confirm it in writing, you need to review your Facebook page or the firm could even say, we’re going to review it. We need to tell you this specifically we’re going to review you say your Facebook page and other social media — I don’t know if we just mentioned it before but the ethics opinion that you’re familiar with says that a lawyer can have the client remove it, can request the client to remove damaging information from social media, but it can’t be — one of the things I’ll mention is, hey, the guy has — here’s a problem. The guy post — this is the weapon I used to shoot the cop or whatever. I mean that sounds pretty dramatic, but what do you do with that? I mean, that’s evidence of the crime, so would that be spoliation, it could well be. I’m not saying it would or wouldn’t be, that’s something the lawyers need to be well aware of and I think even have a trained assistant say a paralegal to do that due diligence, especially if it’s a big case, a big criminal defense case or a big civil case, they should be advising the clients of the necessity to make sure that they don’t have damaging stuff and remove it if it doesn’t.

Now the lawyer needs to make sure the client knows that it’s got to be preserved, so it probably should the lawyer take the bull by the horn and say we’re going to look at your Facebook page and we’re going to remove anything that’s damaging, that’s not spoliation or tampering with evidence or whatever, so that’s pretty important.

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Jonathon Israel: And I think on the flip-side of that if you’re representing the plaintiff, I think it’s also your duty to know what social media platforms you need to be going out and searching and gathering that information as well.

Joe Corsmeier: Absolutely, because there’s a ton of them out there and especially the kids.

Jonathon Israel: Oh yeah.

Joe Corsmeier: My daughter is 17 and I’m sure, cheese’s the ones that I have never heard, well, she doesn’t because we tell her. She’s still under our roof, so we’re careful about it, but things like Snapchat, I mean, come on, where you take a picture and of course that supposedly is temporary, but what if somebody takes a picture of that picture and monitors it or what about a Instagram, which doesn’t go away from what I understand, and so those are another two platforms that it’s very important to make sure that all of the possible platforms are reviewed, if that person is on one of those platforms, so that’s really important.

Jonathon Israel: It is. So unfortunately, it looks like we’ve reached the end of our time with you today, Joe. It’s been a great conversation. I really appreciate you coming and speaking with us today. If our listeners have any questions that they’d like to follow up with you, is there a best way to reach you, email address, website, social media channels?

Joe Corsmeier: Absolutely, the spelling of my name is Corsmeier, which you probably already see. My email address is [email protected]. If somebody wants to subscribe to my ethics alerts, I’m on LinkedIn. I have an ethics alerts page as well as I send them by email to folks. I’ve got a lot of people that get in by email. They can send me an email and ask for the ethics alert blog or if they have any follow-up questions about what we discussed today, or really any other ethics issues, that’s what I do.

Jonathon Israel: That’s great. I appreciate it, that was a great conversation and our listeners are going to appreciate it too, I am sure you get plenty of people reaching out.

Joe Corsmeier: Thanks Jonathon.

Jonathon Israel: Well, this has been another edition of The Florida Bar Podcast, brought to you by The Practice Resource Institute on Legal Talk Network. I want to thank our guest for joining us. If you liked what you heard today, please find and rate us in iTunes. I’m Jonathon Israel, until next time, thank you for listening.

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