TexasBarCLE Advanced Appellate Social Media Presentation

Use of Social Media by Lawyers and Judges

D. Todd Smith

“Social Media” Defined

http://www.merriam-webster.com/dictionary/social%20media

“Social Media” Defined

http://www.oxforddictionaries.com/us/definition/american_english/social-media

Social Media Platforms

“The Big 3” Others

The Power of Social Media1.5 Billion Active Users

http://thenextweb.com/facebook/2014/01/29/facebook-passes-1-23-billion-monthly-active-users-945-million-mobile-users-757-million-daily-users /

The Power of Social Media

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304M Active Users

http://www.statista.com/statistics/282087/number-of-monthly-active-twitter-users/

The Power of Social Media380M Users

http://www.statista.com/statistics/274050/quarterly-numbers-of-linkedin-members/

Q1 '09 Q2 '09 Q3 '09 Q4 '09 Q1 '10 Q2 '10 Q3 '10 Q4 '10 Q1 '11 Q2 '11 Q3 '11 Q4 '11 Q1 '12 Q2 '12 Q3 '12 Q4 '12 Q1 '13 Q2 '13 Q3 '13 Q4 '13 Q1 '14 Q2 '14 Q3 '14 Q4 '14 Q1 '15 Q2 '150

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First Tweets—@dtoddsmith• “Exploring this ‘Twitter’ thing and whether it can add anything to my

networking and business development efforts” (08/09/08)

• “Social media experiment: Will tweet from appellate CLE seminar tomorrow and Friday. Will anyone care?” (09/03/08)

• “Advanced Appellate Seminar under way. House is packed. Still strange not to see Justice Baker on the front row.” (09/04/08)

Then and Now2008

• “TSC Panel: First question out of the chute, what’s up with the backlog?”

• “David Keltner discussing City of Keller v. Wilson. 3 years later, even appellate lawyers don’t understand effect on standards of review.”

• “Discussion of e-filing in appellate courts: Please, please, please! Software is in development.”

2015

How Should Lawyers Use Social Media?Branding/claiming your digital real estate

Listen and learn

Engage and contribute

• What do you think about someone you can’t find through a Google search?

• Find conversations that interest you and pay attention

• Start/participate in discussions• Establish/solidify relationships • Build credibility and trust

Things to Avoid—Practical PerspectiveOvert selling/overposting

Flaming

Accepting all friend requests

• Polluting the stream will alienate others, rather than draw them in

• Bashing others may generate short-term interest, but you will lose out in the end

• Limit the noise you’ll have to filter through

Use Content-Management Tools• Consuming social media can be like drinking from a fire hose

• If active on more than one platform, use a desktop application such as HootSuite or Tweetdeck to help manage them

• Minimize distractions by turning off notifications

A Quick Example

Think Before Hitting “Send”

Think Before Hitting “Send”

Source: Forbes

Think Before Hitting “Send”

Think Before Hitting “Send”Potential clients check you out on the internet (good and bad)

You need to have an internet presence, but committing these errors will cost you

If employers reject job candidates for these reasons, potential clients will too

Things to Avoid—Professional PerspectiveA couple more potential landmines for lawyers…

…and one just for judges

• Disciplinary Rule Violations• Civil Barratry Statute

• Code of Judicial Conduct

Social Media and the Advertising RulesNo false, misleading, or deceptive communications about services (DR 7.02)

Prohibited solicitations (DR 7.03 & 7.05)

Advertisements and filing requirements (DR 7.04 & 7.07)

• Material misrepresentations or omissions

• Guaranteeing results or creating unjustified expectations

• Generally includes electronic contact

• Does the communication trigger them?

SBOT Advertising Review and Social Media

The Bad News…

• Social media landing pages are advertisements when generally available to the public

• “However, attorneys should be careful to ensure that such postings to not meet the definition of an advertisement subject to the filing requirements.”

The Good News…

• Status updates (and blog posts) that are educational or informational need not be filed with Advertising Review

Interpretive Comment 17, available at http://www.texasbar.com/AM/Template.cfm?Section=Advertising_Review.

Bottom Line on Advertising Review• The most common types of legal-related blog and social-media posts

do not trigger filing requirements or related rules, as long as the content would not otherwise be considered an advertisement and is not false or misleading

• Again, exercising good judgment is key

What’s Wrong with These Updates?• “Just published an article on

wage and hour breaks. Let me know if you would like a copy”

• “Case finally over. Unanimous verdict! Celebrating tonight.”

• States information about an article the author published. This is OK.

• Factual, so OK.

What’s Wrong with These Updates?• “Another great victory in court

today! Who wants to be next?”

• “Won a million dollar verdict. Tell your friends to check out my website.”

• “Won another personal injury case. Call me for a free consultation.”

• Arguably a solicitation

• Construed together, could be read as soliciting employment

• Construed together, could be read as soliciting employment

Barratry?• DR 7.03 forbids unsolicited electronic contact with a nonclient seeking

professional employment on a particular matter when made for pecuniary gain

• Violations of DR 7.03 fall within the civil barratry statute’s scope

• Available remedies for civil barratry include fee forfeiture, damages, a $10,000 penalty, and attorney fees

Tex. Gov’t Code § 82.0651

Should Judges Participate in Social Media?

Says SCOTX Justice Don Willett, a thought leader in this area:

“It’s political malpractice not to engage smartly via social media.”

http://www.washingtontimes.com/news/2015/jul/22/celebrate-liberty-month-the-tweeter-laureate-of-te/print/

Should Judges Participate in Social Media?• @JusticeWillett currently has more than

24,000 Twitter followers and has tweeted more than 18,000 times

• His tweeting has been the subject of articles in the New York Times and the Dallas Morning News, among others

Should Judges Participate in Social Media?• @JusticeWillett sees tweeting as a way

judges can demystify and humanize themselves and their courts

• In his view, elected judges—particularly those holding statewide office—can’t afford not to engage

@JusticeWillett’s Ground Rules• He doesn’t talk about matters that could

come before SCOTX

• He doesn’t “throw partisan sharp elbows or try to score cheap political points”

• He “resolutely tr[ies] to stay above the fray”

http://www.dallasnews.com/news/politics/state-politics/20150605-meet-the-state-supreme-court-justice-who-s-also-texas-tweeter-laureate.ece

Another Example—@JudgeDillard• Judge Stephen Dillard currently has nearly

4,700 Twitter followers and has tweeted just under 9,000 times

• He set up his Twitter account to promote transparency in the appellate judiciary and as a way to provide information about what appellate judges do

• He follows ground rules similar to @JusticeWillett’s

https://lawyerist.com/87531/podcast-33-steven-dillard-on-judges-using-social-media/

Judges Tweeting at Judges

Other SCOTX Judges Active on Social Media

But Consider These Scenarios• FL: A judge resigned during an investigation that included allegations

of retaliation against a lawyer for refusing a Facebook friend request

• TX: A judge was recused from a case for being one of the defendant’s 7,000 Twitter followers, even though the follow was not reciprocated

• TX: The Commission on Judicial Conduct admonished a judge for Facebook posts about ongoing criminal cases, citing Code of Judicial Conduct provisions governing impartiality

http://www.texaslawyer.com/id=1202734146961/In-Era-of-Social-Media-Whats-a-Facebooking-Judge-To-Do?slreturn=20150810011601

Guidance for the Judiciary• ABA Formal Opinion 462 blesses judges’ use of social media, calling it

“a valuable tool for public outreach” and likening it to other means of communication

• Citing Opinion 462, the Dallas Court of Appeals has held that recusal is not required merely because a judges and a particular lawyer are Facebook friends. Youkers v. State, 400 S.W.3d 200, 206 (Tex. App.—Dallas 2013, no pet.)

http://www.americanbar.org/dam/aba/administrative/professional_responsibility/formal_opinion_462.authcheckdam.pdf

Guidance for the Judiciary• A forthcoming law review article (with @JusticeWillett as a co-author)

is expected to provide more detailed guidance

• For now, judges—like lawyers—should treat social media as any other form of communication and fall back on existing rules

Takeaways• Social media is no fad—it’s a fundamental shift in how we communicate

• Using social media allows both lawyers and judges to reach a wide audience and engage with people they might not otherwise meet

• Some jurisdictions are concluding that lawyers have an ethical obligation to educate themselves about technology

• Transparency in the judiciary is a good thing

Takeaways• These factors advise toward establishing a social media presence—or

risk getting left behind

• Avoid the landmines by reviewing ethics rules and using good judgment

Use of Social Media by Lawyers and Judges

D. Todd Smith