by Brian Focht | Oct 27, 2016
I’ve been lucky, and I have no problem admitting that. To date, I haven’t had a client who, either during or after completion of my representation, decided to burn me by posting a scathing negative review online. While I may have had a few clients that might have been inclined, I’ve done everything I could to manage the situation before it came to hostile words being shared to the world online. Like I said, that doesn’t necessarily make me good, it makes me lucky. Many other lawyers, unfortunately, haven’t been so lucky. I’m not talking about those lawyers who treated their clients casually, failed to return phone calls, or truly caused their clients harm through negative actions or omissions. They deserve all the ink they get. I’m talking about lawyers who, despite their best efforts, just couldn’t deliver what the client wanted or expected. Whether you deserve the online tongue-lashing you ended up getting or not, once it’s posted, you need to do something about it. And when I say “something,” I most certainly mean something OTHER than what these lawyers are accused of doing… You Should Already Know that Committing Fraud is Wrong, But Just So We’re Clear… If you haven’t heard the story, two lawyers have been engaging in “online reputation management” through some allegedly sketchy, unethical, and illegal means. According to a lawsuit filed in US District Court for the Northern District of California, the lawyers would attempt to have negative reviews that had been posted on various sites online taken down. When a site refused, the lawyers would file a defamation lawsuit – either on... read more
by Brian Focht | Nov 5, 2015
Looking for help being a lawyer? Well, Thompson Reuters, presumably in an attempt to remain relevant and bolster revenue after Ravel Law and Harvard Law School banded together to make case law free, has the following offer: “Websites need fresh content on a regular basis to remain visible in search engines. But maintaining a blog can be daunting. Do you have time for that? We didn’t think so.” That’s right, for just $199 per article ($139 if you’re a “Checkpoint” subscriber), you can buy that pesky content for your website that you didn’t have the time to write. And why would you do that? To boost your “thought leadership quotient,” of course! This is the second time that I’ve written about the ethics and rationality of utilizing ghost written blog posts to boost your website. Apparently, since the last time I discussed it, services ghost writing for law firms has exploded, and none of the state ethics boards have really addressed the issue at all. So as a recap, here’s my take as to why it’s bad: 1) Buying “thought leadership” puts you on seriously sketchy ethical ground. Your advertising, regardless the medium (website, social media, email, billboard, guy on the street yelling to passers-by), cannot be misleading. Why does that matter for ghost written blog posts? Well, are you sharing those posts in order to, as Thompson Reuters suggests, increase your “thought leadership quotient”? (As an aside, what the f@ck is “thought leadership quotient” anyway? All it makes me think of is the cross examinations I used to do of chiropractors, asking them about the statutory definition of... read more
by Brian Focht | Jul 21, 2015
I really wish the state of Florida didn’t provide me so much material to write about. Hell, I’ve even written about this particular topic before, when Florida drafted a proposed opinion for the spoliation of social media. I hoped that the Florida bar would come to its senses, with several people assuring me it would be fixed. However, I should have known better. Writers at the time were buying the BS coming from the Florida bar right from the start about how awesome this new opinion was. It wasn’t awesome. It wasn’t even good. And unfortunately, they didn’t fix it. Florida’s New Social Media Ethics Opinion is Bad. Really Bad. The Florida Social Media Ethics Opinion So we’re all on the same page, some anonymous member of the Florida bar sent in these four “questions“: 1) Pre-litigation, may a lawyer advise a client to remove posts, photos, videos, and information from social media pages/accounts that are related directly to the incident for which the lawyer is retained? 2) Pre-litigation, may a lawyer advise a client to remove posts, photos, videos, and information from social media pages/accounts that are not related directly to the incident for which the lawyer is retained? 3) Pre-litigation, may a lawyer advise a client to change social media pages/accounts privacy settings to remove the pages/accounts from public view? 4) Pre-litigation, must a lawyer advise a client not to remove posts, photos, videos and information whether or not directly related to the litigation if the lawyer has advised the client to set privacy settings to not allow public access? Long story short, the answers are as... read more
by Brian Focht | Feb 12, 2015
“A lawyer… may advise that a client remove information relevant to the foreseeable proceeding from social media pages.” That’s right, the Florida bar just decided it’s okay to destroy evidence. Evidence the attorney knows will be relevant. Before an opposing party is even on notice of a claim. And that’s not all! Before I get to the Florida bar’s inexplicably stupid and ignorant opinion, a little background: The Florida bar got an ethics inquiry from a local attorney. It asks whether it is permissible to instruct his or her client concerning two specific actions: 1) advising a client to remove posts, photos, videos, etc. from a personal social media account, and 2) advising a client to adjust the privacy settings to remove posts and accounts from public view. Both ask about pre-litigation situations, but with litigation certainly expected. Here’s what the Florida Bar concluded: 1) “[A] lawyer may advise a client to use the highest level of privacy setting (sic) on the client’s social media pages.” 2) “[A] lawyer may advise the client pre-litigation to remove information from a social media page, regardless of its relevance to a reasonably foreseeable proceeding,” provided the lawyer keeps an “appropriate record” of the deleted posts. (No further advice on what would constitute an “appropriate record.”) 3) Telling your clients not to remove relevant information from the client’s social media pages is, for all intents and purposes, optional. Conceal evidence? Check. Destroy evidence? Check. Plausible deniability? Check mate. And for good measure, to support its conclusions, the drafters completely misrepresent other ethics opinions they cite for support. And a lot of commentators have too. This opinion... read more
by Brian Focht | Jan 19, 2015
Advertising as an attorney is a perilous endeavor. On one hand, nobody can find you if you don’t advertise. On the other hand, advertise in a new or particularly outrageous (for lawyers) way, and risk drawing the ire of your state bar ethics board. Writing about the legal ethics of attorney advertising can be depressing. But there are good days too. Sometimes you get to write about an ethics decision that really got it right. Other times you get to write about overzealous ethics boards getting a well-deserved bench slap. And rarely, you get to have a very good day, and you get to write about both. In California, you can’t evade attorney advertising rules on a “personal” blog. When is a blog, written or maintained by a lawyer, governed by the ethical rules regarding attorney advertising? Well, when it would be considered “advertising” on any other medium. It would appear that lawyers writing “personal” blogs about their practice didn’t realize that. A recent ethics opinion decided to address the “misunderstanding.” FORMAL OPINION INTERIM NO. 12-0006 According to the opinion, a blog written by a lawyer must comply with attorney advertising rules if the blog is 1) attached directly to a law firm website, or 2) expressly or implicitly invites the reader to retain the attorney. A blog is not required to comply with the rules if it merely links to the attorney’s bio page on another website. Sure, this opinion seems kind of obvious. And, prior to reading the entire opinion, I wondered why it was even something that was being debated. However, upon a full reading, there are apparently plenty of... read more
by Brian Focht | Sep 26, 2014
Score one for the Pennsylvania Bar Association. All social media ethics opinions should be written this way. Sure, I admit it, the Pennsylvania Bar is a little late to the party when it comes to their most recent social media ethics opinion, but at least they did something with that time. Instead of releasing opinions piecemeal, like most states, they aggregated. There’s nothing wrong with shorter ethics opinions, but I’ve also seen too many attempts (mostly by the ABA) to put multiple issues into one opinion, only to provide an opinion that actually increases confusion. That did NOT happen in this case. Recently, the Pennsylvania Bar Association released Formal Opinion 2014-300, “ETHICAL OBLIGATIONS FOR ATTORNEYS USING SOCIAL MEDIA.” The opinion itself is 18 pages long, and upon first glance, it would seem to be a perfect candidate for TLDR (“too long, didn’t read” to the uninitiated). However, the opinion addresses 10 specific issues regarding an attorney’s ethical use of social media, citing to numerous different social media ethics opinions from around the country, as well as providing numerous examples of both permissible and prohibited conduct. This opinion provides an incredibly clear and detailed roadmap for attorneys to use social media in a professional and ethically permissible manner. The Opinion: “This Committee concludes that: 1. Attorneys may advise clients about the content of their social networking websites, including the removal or addition of information. 2. Attorneys may connect with clients and former clients. 3. Attorneys may not contact a represented person through social networking websites. 4. Although attorneys may contact an unrepresented person through social networking websites, they may not... read more
by Brian Focht | Jun 10, 2014
Part 1: The Importance of Social Media to the Modern Law Practice Part 2: Marketing Your Practice on Social Media Part 3: Personal Use of Social Media Part 4: Social Media in Discovery Part 5: Social Media as a Research Tool Part 6: Advise Your Clients Wisely! (June 12, 2014) Social media is, at its most basic level, a tool for communication. Sure, it’s a great way for your firm to market your services locally. It’s also a great way for some 23 year-old to completely screw up their own personal injury case by posting inappropriate pictures shortly before trial. But at it’s core, it’s about communication. However, it’s a communication tool that archives, stores, indexes, and is searchable. That’s right, it’s your communication history. I can find out quite a lot about you by checking out your social media accounts. Quite a lot of information that may be useful, say, if you were to be on my list of potential jurors for a major case. The ethical rules have been particularly slow to keep up with this facet of social media. However, in Part 5 of my presentation on the Ethics of Social Media, I discuss some ways to keep yourself within ethical bounds while performing your due diligence. Ethics of Social Media, Part 5: Social Media as a Research Tool from Brian Focht Using social media to conduct research on witnesses, parties, jurors, and judges is about as close to walking through a minefield as one gets in litigation. On one hand, given todays society, most people share critically important information about their personal beliefs, prejudices, and predispositions... read more
by Brian Focht | May 29, 2014
Part 1: The Importance of Social Media to the Modern Law Practice Part 2: Marketing Your Practice on Social Media Part 3: Personal Use of Social Media Part 4: Social Media in Discovery Part 5: Social Media as a Research Tool Part 6: Advise Your Clients Wisely! (June 12, 2014) Knowing how to use social media is important not only to improve your ability to market your firm. Social media is ubiquitous in our society – everyone uses it in some form or another. Messages, pictures, videos… discoverable, frequently relevant information. It’s becoming increasingly clear that in order to competently perform our jobs as litigators, we have to know how to request, and produce, social media information in discovery. In part 4 of my presentation, The Ethics of Social Media, I discuss ways to conduct discovery involving social media. Ethics of Social Media Part 4: Social Media in Discovery from Brian Focht When requesting social media in discovery, there is an essential distinction that you must understand in order to be effective: the difference between making a narrowly-tailored, effective request and an overly broad fishing expedition. The first request will be honored – opposing parties will be obligated to search their own social media for responsive information. The second request will result in being bench slapped. Understanding the difference is beginning to be thought of as an ethical requirement. At the moment, there is no existing standard for what truly separates an overreaching fishing expedition from a relevant, appropriate request. Various courts have decided the issue in very different ways. In Moore v. Miller, No. 1:10-cv-00651-JLK-MJW (D. Colo. June 6, 2013),... read more
by Brian Focht | May 27, 2014
Part 1: The Importance of Social Media to the Modern Law Practice Part 2: Marketing Your Practice on Social Media Part 3: Personal Use of Social Media Part 4: Social Media in Discovery Part 5: Social Media as a Research Tool Part 6: Advise Your Clients Wisely! (June 12, 2014) Social media is an important tool for attorneys. Knowledge of its use is important when promoting your firm and advising your clients. However, one aspect of social media that too frequently gets ignored is an attorney’s personal use of social media. We like to think that when we’re “off the clock” that what we say and do reflects only on us personally – and that it should have no direct impact on our professional lives. Unfortunately, that just isn’t the world we live in. Attorneys have to expect that whatever they post on social media will reflect on the attorney and the attorney’s firm. With that in mind, part 3 of my presentation, The Ethics of Social Media, discusses the personal use of social media by attorneys: Ethics of Social Media Part 3: Personal Use of Social Media from Brian Focht We tend to believe that when we’re “off the clock,” we are able to become entirely private citizens, and post to social media are unrelated to our professional lives. The reality is, unfortunately, quite different. Take, for example, the case of Pittsburgh attorney Steven Regan, which I discussed in detail in this article. The situations that one must pay close attention to are numerous, and cover a wide variety of activities. Regardless of what platform you’re using, from... read more
by Brian Focht | May 19, 2014
Part 1: The Importance of Social Media to the Modern Law Practice Part 2: Marketing Your Practice on Social Media Part 3: Personal Use of Social Media Part 4: Social Media in Discovery Part 5: Social Media as a Research Tool Part 6: Advise Your Clients Wisely! (June 12, 2014) As you saw in Part 1, Social Media is a tool that lawyers can ill-afford to ignore. It’s used by essentially everyone: your family, your friends, your clients, your judge, your competition. Understanding how to use social media, and even more importantly – understanding how to use it ethically, is critical for lawyers in the 21st century. One of the best ways a lawyer can harness social media to improve their practice is to utilize the phenomenal marketing capabilities found on social media. However, before you dive headlong into promoting your practice on Facebook, Twitter, Instagram, and other sites, you need to make sure your marketing complies with ethical rules. In Part 2 of my presentation, find out how to promote your firm on social media, ethically: The Ethics of Social Media Part 2: Marketing Your Law Practice from Brian Focht The real story about the ethics of social media is that lawyers must remember that the rules still apply! All the general rules that you apply to your other types of advertising will apply generally to advertising on social media: Make sure that your advertisements aren’t false or misleading; If you compare your services to that of another attorney/law firm, be sure you have objective information to back up your comparisons; Only post testimonials that you have personally fact-checked;... read more
