ETHICAL ISSUES IN SOCIAL MEDIA AND E-MAIL Hypotheticals and Analyses* CLE Program Eastman Lodge at Bays Mountain C. Simon Davidson McGuireWoods LLP [email protected] May 30, 2018 * 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. ______________________ © 2017 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 C. Simon Davidson ([email protected]) with any questions or requests. 102634101_1 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 102634101_1 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 beyond letters to numbers and diacritical marks,' explains chief analyst Paul JJ Payack, who notes that futeball, ghostplane and blood moon are also trending on the list."). 2 Aversa v. Unemployment Comp. Bd. of Review, 52 A.3d 565, 569, 571 & n.8 (Pa. Commw. Ct. 2012) (reversing a decision by the Pennsylvania Unemployment Compensation Board that a claimant was not entitled to benefits because he had threatened a co-worker; noting that "[t]he Referee found that Claimant violated Employer's workplace violence prevention policy. Specifically, the Referee stated: 'Claimant's email was intentional and deliberate to warn the co-worker that the Claimant considered the co-worker had 'set me up pretty good.' The tone of the message was strong with the Claimant capitalizing the letters in the phrase. 'I WON'T FORGET IT'. The Claimant's message was clearly hostile and intimidating.'"; "The Referee concluded that Claimant committed willful misconduct, rendering him ineligible for benefits under Section 402(e) of the Law, 43 P.S. §802(e)."; reversing this finding; "Adams believed that because 'I won't forget it' was written in capitalized letters, it conveyed a threat. Adams did not consider the fact that capitalized letters in an e-mail are still quite small. The context of a remark is also relevant. A message transmitted through cyberspace does not contain the same force of immediacy of an in-person exchange; it is absent of voice or hand gesture. Further, there is nothing threatening about the words 'I won't forget it.' The use of capitalized letters adds emphasis, but it did not transform a four-word declarative sentence into a threat of violence. The message was not sent anonymously. Adams' subjective construction is not itself substantial evidence of Claimant's intent."; "'In his on-line application for benefits, Claimant used all capitalized letters. It seems unlikely that he meant to intimidate the government in his application.'"). 2 102634101_1 "The potential for email misfires between bosses and subordinates is mounting, as the volume of email grows and more people read it on the fly on mobile devices. Sometimes the boss is too rushed to read. Employees fuel the problems by sending poorly written emails. Deeper issues can arise if bosses' and employees' communication styles clash."; "The number of emails sent or received daily by the typical corporate employee is expected to rise to 136 by 2017 from 121 this year, based on projections released last November by the Radicati Group, a Palo Alto, California, market-research firm. Managers, who receive the most, are 'flooded by email,' says Nancy Ancowitz, a New York business communications coach. Many a manager multitasks to get through it all, 'emailing from a mobile device at a stoplight, typing with his thumbs,' Ms. Ancowitz says."; "Some bosses don't answer at all. Nearly one-third of 700 employees surveyed by researchers at Florida State University said their bosses had given them 'the silent treatment' in the preceding year, according to the 2006 study."; "In other cases, bosses scroll over employees' messages because they have vague or misleading subject lines, says Jack Appleman, a corporate writing instructor in Monroe, New York. If an employee uses the same subject line on an email string long after the topic has changed, the boss's response is likely to be, 'I thought this was already done,' says Mr. Appleman, author of 10 Steps to Successful Business Writing. Subject lines should say exactly what is needed, such as, 'Report: Approval needed by 5 p.m.,' he says."; "Some emailers annoy bosses with a long windup, such as 'If it's not too much trouble, I was just wondering . ,' says Barbara Pachter, a Cherry Hill, New Jersey, communications consultant and trainer. They're usually trying to be polite but come off as passive, Ms. Pachter says. Reading an email aloud before sending it is a good way to ensure the tone is neither wishy-washy nor too harsh."; "Other employees ramble on in 'one huge paragraph' of 30 lines or more, like 'a sheet of black ice,' and then bury their question at the end, Ms. Pachter says."; "Emails covering multiple subjects can be confusing, says Mike Consol, a Livermore, California, writing and corporate-communication coach; sticking to one issue is usually best. Some matters may be too complicated to handle on email, such as personnel issues or developing new policies."; "Understanding your communication style -- and those of your co- workers -- can help avert miscues. At an engineering firm she headed several years ago, Allison Tabor realized she sometimes came across as curt in emails to certain employees who preferred warmer or more detailed communication. 'I've had employees say, 'Ouch, that stings,' says Ms. Tabor, now founder and owner of Coppia Communications, a San Ramon, California, coaching and business consulting firm. She began tailoring her emails to suit individual employees' style."). • Karen Farkas, Those Who Spend Hours On Their Cell Phones Are More Anxious and Less Happy, College Researchers Say, Plain Dealer, Dec. 9, 2013, at A2 ("College students who spend hours each day online, texting or talking on their cell phones are more anxious, less happy and get lower grades, according to a new study by Kent State University researchers."; 3 102634101_1 "While studies have shown a correlation between high cell phone use and academics this appears to be the first to show that it is related to anxiety and happiness, said Andrew Lepp, an associate professor who conducted the research with fellow faculty members Jacob Barkley and Aryn Karpinski in the university's College of Education, Health and Human Services.