The Ethics of Email and Social Media: a Top Ten List Mcguirewoods LLP Hypotheticals and Analyses T
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The Ethics of Email and Social Media: A Top Ten List McGuireWoods LLP Hypotheticals and Analyses T. Spahn (2/1/21) THE ETHICS OF EMAIL AND SOCIAL MEDIA: A TOP TEN LIST Hypotheticals and Analyses∗ Thomas E. Spahn McGuireWoods LLP ∗ These analyses primarily rely on the ABA Model Rules, which represent a voluntary organization's suggested guidelines. Every state has adopted its own unique set of mandatory ethics rules, and you should check those when seeking ethics guidance. For ease of use, these analyses and citations use the generic term "legal ethics opinion" rather than the formal categories of the ABA's and state authorities' opinions -- including advisory, formal and informal. ______________________ © 2021 McGuireWoods LLP. McGuireWoods LLP grants you the right to download and/or reproduce this work for personal, educational use within your organization only, provided that you give proper attribution and do not alter the work. You are not permitted to re-publish or re-distribute the work to third parties without permission. Please email Thomas E. Spahn ([email protected]) with any questions or requests. \6312230.23 The Ethics of Email and Social Media: A Top Ten List McGuireWoods LLP Hypotheticals and Analyses T. Spahn (2/1/21) TABLE OF CONTENTS Hypo No. Subject Page Introduction (1) Creation of an Attorney-Client Relationship 1 Beginning of an Attorney-Client Relationship ......................................... 23 2 Websites Offering Legal Advice but Attempting to Disclaim an Attorney-Client Relationship ..................................................................... 46 (2) Communications with Clients 3 Ethical Propriety of Electronic Communications..................................... 49 4 Virtual Practice ........................................................................................... 77 (3) Communications in a Corporate Setting 5 Substance of Communications Between Corporate Clients and Lawyers ....................................................................................................... 133 6 Pattern of Intracorporate Communications: Legal Versus Business Advice ......................................................................................... 140 7 Corporate Clients' and Their Lawyers' Creation of Documents ............. 165 8 Adverse Employees' Use of Company Property for Communications with Their Private Lawyers ........................................... 202 (4) Communications with Adversaries 9 Ex Parte Communications with Represented Adversaries ..................... 213 10 Inadvertent Transmission of Communications ........................................ 235 11 Metadata ...................................................................................................... 252 (5) Working with Others 12 Working with Service Providers ................................................................ 288 13 Outsourcing of Discovery Work ................................................................ 291 i \6312230.23 The Ethics of Email and Social Media: A Top Ten List McGuireWoods LLP Hypotheticals and Analyses T. Spahn (2/1/21) Hypo No. Subject Page 14 Discarding Electronic Files ........................................................................ 303 (6) Discovery 15 Use of New Technologies .......................................................................... 307 16 Discovery of a Party's or Witness's Social Media .................................... 310 17 Using Arguably Deceptive Means to Gain Access to a Witness's Social Media ................................................................................................ 314 18 Effect of an Inadvertent Production of a Privileged Document .............. 321 (7) Jurors 19 Researching Jurors' Social Media ............................................................ 331 20 Juror's Independent Research .................................................................. 334 21 Jurors' Communications ............................................................................ 339 (8) Judges 22 Judges' Independent Research ................................................................. 349 23 Judges' "Friending" of Lawyers Who Appear Before Them ................... 360 24 Ethics Duty to Disclose Unpublished Case Law ...................................... 374 (9) End of an Attorney-Client Relationship 25 End of an Attorney-Client Relationship .................................................... 386 (10) Marketing 26 Law Firm Websites: Content .................................................................... 403 27 Law Firm Domain Names and URLs ......................................................... 410 28 "Virtual" Law Firms .................................................................................... 414 29 Lawyers' Favorable Reviews on Other Websites ..................................... 419 30 Intruding Into Other Law Firms' Internet Marketing ................................ 422 31 Internet Referral Arrangements ................................................................. 424 ii \6312230.23 The Ethics of Email and Social Media: A Top Ten List McGuireWoods LLP Hypotheticals and Analyses T. Spahn (2/1/21) Hypo No. Subject Page 32 Firms' Joint Advertisements ...................................................................... 431 33 Lawyers' Use of Social Media in Their Marketing .................................... 433 34 Lawyers Blogs ............................................................................................ 436 35 Daily Deals .................................................................................................. 440 36 New Forms of Marketing Using Automatic Means ................................... 449 37 Texting and Social Media Postings ........................................................... 453 38 Characterizing the Intrusiveness of Electronic Marketing ...................... 458 iii \6312230.23 The Ethics of Email and Social Media: A Top Ten List McGuireWoods LLP Hypotheticals and Analyses T. Spahn (2/1/21) Introduction Starting in the 1990s and accelerating rapidly since then, all of us have increasingly used electronic forms of communication, such as email, texting, etc. More recently, folks have communicated more widely through social media such as Facebook, blogs and Tweets. These new forms of communication dramatically change the legal and ethical landscape in which lawyers practice. Substance First, the substance of electronic communications differs from our previous ways of communicating with each other. Electronic communications present an unprecedented combination of our two traditional means of communication. From even before the dawn of civilization, humans communicated orally. This type of communication involves words, but also includes body language, voice inflection and emotion. We traditionally have expected this type of communication to be fleeting, and therefore have tended to be less careful with its substance. Our instinct would often prevent us from writing down and therefore permanently memorializing the sort of things we might say to each other in a private conversation. This traditional approach manifests itself in some continuing rules that upon reflection make little sense. For instance, many states continue to prohibit one participant in a telephone call from recording the conversation, even though there could be no expectation of confidentiality. The other tradition of human communication began later. We began to write each other, first with clay tablets and eventually with all the other forms of impersonal written communications. We expect these to last, so in most (although not all) situations we tend to be more careful when we write. 1 \6312230.23 The Ethics of Email and Social Media: A Top Ten List McGuireWoods LLP Hypotheticals and Analyses T. Spahn (2/1/21) Electronic communications combine these two traditions, in a way that significantly affects lawyers and their clients. Emails and other forms of electronic communications combine the informality of the oral tradition with the permanence of the written tradition. We began to use "smiley faces"1 to indicate a joke -- which would have been clear if we had smiled while saying something face to face, or used a voice inflection to indicate a joke if talking on the telephone. We react defensively if someone sends an all-caps email, because it seems like the sender is yelling at us.2 Some studies have shown the way people communicate electronically can show something about their mental state. • Sue Shellenbarger, Email Enigma: When the Boss's Reply Seems Cryptic, Wall St. J., Mar. 11, 2014 ("Many employees labor over emails seeking guidance from the boss, only to receive a cryptic reply such as 'Great!' or 'Sounds good' -- or no answer at all. The result: Confusion and frustration."; 1 Jennifer Harper, Smiley Face Wins, The Washington Times, Apr. 15, 2014 ("The top trending word of the year so far? The Global Language Monitor declares the current winner to be those wordlike entities and 'smilies' done up with numbers and markings that are so common in social media. The Texas-based research group bases its conclusions on computerized analysis of word frequency in some 300,000 print and electronic global media, and makes a final declaration of top words at year's end. 'Emojis' and 'emoticons' win, at least at this point. 'Not only is the English language adding a new word every 98 minutes, but it is also expanding the basis of word creation. The alphabet itself is now expanding