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Avoiding Ethical Traps and Professional Liability in Web 2.0

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Avoiding Ethical Traps and Professional Liability in Web 2.0 FDCC Winter Meeting Hyatt Grand Champions Resort Indian Wells, California February 26 – March 5, 2011 AVOIDING ETHICAL TRAPS AND PROFESSIONAL LIABILITY IN WEB 2.0 Presented by Brett J. Preston and Casey G. Reeder HILL WARD HENDERSON 101 East Kennedy Blvd., Suite 3700 Tampa, FL 33602 ©Copyright by Federation of Defense & Corporate Counsel, 11812 N. 56th Street, Tampa, FL 33617. Reproduction of the contents hereof for noncommercial purposes is permitted. SF/1875892v1 AVOIDING ETHICAL TRAPS AND PROFESSIONAL LIABILITY IN WEB 2.0 BY BRETT J. PRESTON ([email protected]) and CASEY G. REEDER ([email protected]) I. INTRODUCTION In the “Good Old Days,” a lawyer had a business card, a glossy firm brochure, and a biography in Martindale Hubbell. During the process of creating each, the lawyer made sure it complied with the rules of ethics, that it was in good taste, and that it was something the lawyer and his or her firm could be proud of. These materials were static: apart from having to update them every once in a while, once you got them “right” they stayed “right.” It was hard to imagine a scenario in which any one of these traditional ways of communicating information about the lawyer and his practice could get the lawyer in trouble, whether ethically or through professional liability. With the advent of the Internet, law firms added to these more traditional devices a firm website. (Do you recall the internal discussions about whether your firm should even have a website?) Although these websites were "interactive" in the sense that they allowed a person accessing the website to e-mail a lawyer by clicking on a button or two, they were essentially electronic versions of firm brochures. Like brochures, they were static, and therefore easily maintained in a manner that complied with ethical rules and that did not create exposure to civil liability. This was the relatively benign world of Web 1.0. Enter Web 2.0: a world in which lawyers (and law firm employees) and the rest of the world (which includes strangers, judges, clients and prospective clients, witnesses, jurors, opposing counsel, senior partners, law firm staff) interact in websites that are presumably viewable by anyone. In the Web 2.0 environment, lawyers and other law firm employees are creating content of websites, one or more per person: in real time, often without proofreading or reflection; 1 SF/1875892v1 24 hours a day (during some of which they may have consumed intoxicating substances); without supervision; often without the ability to control content being posted by others; across state and national borders; often without knowing the identity of the persons with whom they are interacting. In this environment, the opportunities to commit ethical violations or create exposure to civil liability are virtually limitless. The balance of this paper raises issues lawyers should consider when using Web 2.0 social networking sites to avoid committing malpractice and ethical violations. II. WHAT IS “WEB 2.0”? The defining feature of a so-called “Web 2.0” site is that it “gives its users the free choice to interact or collaborate with each other in a social media dialogue as creators…of user-generated content in a virtual community, in contrast to websites where users…are limited to the passive viewing of content that was created for them.”1 While young adults continue to be the heaviest users of social media, Web 2.0 is definitely not “just for kids” anymore – nearly half of internet users ages 50-64 and one in four users age 65 and older now use social networking sites like Facebook or LinkedIn.2 1 Wikipedia, Web 2.0, http://en.wikipedia.org/wiki/Web_2.0 (last visited Nov. 1, 2010). Appropriately, this definition comes from Wikipedia – itself a prominent Web 2.0 product. See Wikipedia:About, http://en.wikipedia.org/wiki/Wikipedia:About (Nov. 1, 2010) (describing Wikipedia as “written collaboratively by largely anonymous internet volunteers”). 2 Mary Madden, Older Adults and Social Media (Aug. 27, 2010), http://www.pewinternet.org/ Reports/2010/Older-Adults-and-Social-Media.aspx. 2 SF/1875892v1 A. Facebook Facebook (www.facebook.com) is by far the most popular personal social networking site. Launched it 2004, it currently has more than 500 million active users, half of whom log on to Facebook in any given day.3 Facebook allows users to upload content to an online profile, “friend” other users, play games, take quizzes, organize events and join interest groups. An average user has 130 “friends” and creates 90 pieces of content each month.4 Sharing photos is one of the most popular Facebook activities, and more than 3 billion photos are uploaded to the site every month.5 A vast array of customizable privacy settings allows users to control who can see the content they post – only their “friends,” only members of certain “networks,” or the unrestricted public. While Facebook started as a site for college students, “American use of Facebook today is very intergenerational,” with only 40% of users under the age of 25 and nearly 20% of users age 45 or older.6 In an effort to attract more business users, Facebook has also recently re-designed its community or fan pages, which allow businesses or organizations to establish a profile which other users can “like” or become “fans” of.7 However, the primary focus that fuels Facebook’s popularity continues to be purely social interaction with “friends” online. 3 Facebook, Statistics, http://www.facebook.com/facebook#!/press/info.php?statistics (last visited Nov. 1, 2010). 4 Id. 5 Eric Eldon, New Facebook Statistics Show Big Increase in Content Sharing, Local Business Pages (Feb. 15, 2010), http://www.insidefacebook.com/2010/02/15/new- facebook-statistics-show-big-increase-in-content-sharing-local-business-pages. 6 Justin Smith, December Data on Facebook’s US Growth by Age and Gender (Jan. 4, 2010), http://www.insidefacebook.com/2010/01/04/december-data-on- facebook%E2%80%99s-us-growth-by-age-and-gender-beyond-100-million. 7 Some businesses, law firms in particular, were not particularly pleased with the way that this new feature automatically captured their employees’ self-descriptions of their jobs on their individual profiles and used that information to automatically generate a community page for the firm. What employees may have intended as a private expression of frustration with their day-to-day jobs, led to the automatic creation of firm-branded pages reflecting the firm’s employment of, for example, “bimbos,” “whipping boys,” “slaves,” or “Morlocks”. See Jenna Greene, Firms no fan of Facebook pages (May 31, 2010), http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id= 1202458966925&src=EMC- Email&et=editorial&bu=National%20Law%20Journal&pt=NLJ.com% 20Daily%20Headlines&cn=20100601NLJ&kw=Firms%20no%20fan%20of%20Facebook %20pages&hbxlogin=1. 3 SF/1875892v1 B. MySpace Like Facebook, MySpace (www.myspace.com) allows users to upload information, photos and videos to an online profile and to socially interact online with other users. MySpace currently has more than 100 million users worldwide.8 However, while Facebook has made a concentrated effort to reach out to older users and businesses, MySpace’s primary focus remains on a younger demographic. Consistent with this focus, the site recently debuted a new brand, website and suite of products aimed to “redefine the company as a social entertainment destination for Gen Y.”9 C. LinkedIn Unlike the purely social focus of Facebook and MySpace, LinkedIn (www.linkedin.com) has been business-oriented since its launch in 2003, with a stated mission to “connect the world’s professionals to make them more productive and successful.”10 LinkedIn has over 80 million members, including executives from all Fortune 500 companies.11 The average user age is approximately 44.12 LinkedIn members’ online profiles are tailored towards the site’s business focus, functioning much like an online resume. Members can post information regarding job history, job descriptions, education history, contact information and links to external websites. Members can also upload one photo to be displayed with their profile and can join various interest groups. Unlike Facebook and MySpace, LinkedIn requires you to state how you know someone before it will send a connection request to that person and, if you do not answer, requires you to request an “introduction” through a mutual connection. One of LinkedIn’s defining features is the ability for members to write “recommendations” for each other. If a member accepts a recommendation written by another 8 MySpace, Fact Sheet, http://www.myspace.com/pressroom/fact-sheet (last visited Nov. 1, 2010). 9 Meet the New Myspace (Oct. 27, 2010), http://www.myspace.com/pressroom/2010/10/meet-the-new-myspace. 10 LinkedIn, About Us, http://press.linkedin.com/about (last visited Nov. 1, 2010). 11 Id. 12 Pingdom.com, Study: Ages of social network users (Feb. 16, 2010), http://royal.pingdom.com/2010/02/ 16/study-ages-of-social-network-users/. 4 SF/1875892v1 member, that recommendation appears on the accepting member’s profile.13 D. Specialized Legal Social Networks A number of specialized social networking platforms, geared specifically towards legal professionals, have been launched in the past few years as well. Legal OnRamp (http://legalonramp.com) is an invitation-only social networking platform for in house counsel and outside lawyers. Launched in 2007, it is “designed to make it easier for corporate lawyers to make connections among themselves and with law firms, using elements modeled in part after popular networking sites such as Facebook and LinkedIn.”14 But Legal OnRamp provides more than just connections – it also provides substantive FAQs, updates and publications on various legal issues, blogs and standard forms and templates and various forums for online discussions.
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