Sixth Annual In-House Counsel Conference Panel 5 Avoiding

Sixth Annual In-House Counsel Conference Panel 5 Avoiding a Bar Complaint from your BFF

Presenters Antone Johnson, Principal, Bottom Line Law Group John Lipsey, Vice President, Corporate Counsel Services, Lexis. Nexis Martindale-Hubbell Jason Romwell, General Counsel, Insurance. Leads. com Cortez Smith, Senior Legal Director, Yahoo! Inc. Moderator - David S. Cohen, Director of Legal Affairs and Risk Management, Angels Baseball LP 2

Best Practices Tips for Attorneys in Social Media John Lipsey 3

Best Practice 1 Join a lawyer-only online site to network/collaborate with legal peers - Research Corporate Counsel shows primary reasons Note: Item names have been shortened for display purposes 4 Question: What do you think are the top advantages of participating in an online legal professional network? Selectup to three.

Best Practice 2 Use Google Alerts or other reputation aggregation tool to monitor the Internet The conversations are happening whether you are a part of them or not. Opportunities await those who listen. Enormous risks await those who don’t. 5

Best Practice 3 Understand your goals in participating in an online network and vet the network accordingly Be cautious when: The site allows legal advice to be offered The site’s Terms and Conditions do not respect your privacy, or will sell or rent your contact information Company or entity creating the site is vague or unidentified Site allows solicitation and spamming There is no authentication process following a registration to ensure member identity Site allows anonymity Lacks robust privacy and communications settings 6

Best Practice 4 Your online profile is Your Public CV, so do it right This is how employers, colleagues, and peers research your skills and qualifications Keep it clean, keep it real, and make sure it’s complete Lack of online networking presence means you are “invisible. ” 7

Best Practice 5 Growing your network provides immediate business benefits “We have a new matter in an unfamiliar jurisdiction. Whom do I hire? ”… “Whom do I know who can give me the inside scoop on my opponent? . . . ” Search for lawyer based on practice area, region, firm, etc. Review profile for relevance Read articles/cases published by prospective lawyer Review rating and client reviews Instant referral via common connections Due diligence Selection decision 8

Best Practice 6 When online, segment your audience using public, private or confidential groups Find “Relevant” Colleagues Common interests Narrow peer groups into smaller, more focused clusters Enables “deep dives” into subject matter with trusted colleagues Groups are Focused and Intimate Introduce yourself to the group and offer brief background Participate frequently and offer ideas, questions and insights Be helpful and pro-active 9

Best Practice 7 Extend the “footprint” of your current networking activities by leveraging them online “What are you working on” feature (Linked. In) Use to promote or market ideas or activities Drive traffic to your blog and presentations Blog, Slide share, comments feed Articles you’ve written Important published decisions Organizations and committees Pro bono work Charitable work and community involvement 10

Best Practice 7 Use all aspects of the profile opportunity to demonstrate your thought-leadership so when others look you up, you stand apart 11

Best Practice 8 Leverage online lawyer ratings and client reviews to vet outside counsel Usergenerated reviews provide members reliable lawyer recommendati ons from other corporate counsel clients who have actually used an attorney’s services 12

Best Practice 9 When engaged online, truthfulness and transparency are essential Be transparent and clear in identity and intention Adhere to ethical rules and guidelines governing counsel YOYOW - You own your own words Be responsive and trustworthy Finish what you start Value and create thought leadership 13

Best Practice 10 Eight minutes per day is all it takes to fully engage online Spend 5 minutes a day scanning RSS feeds, blogs and emails 1 second to check reputation alert, topic or company key word alert 5 minutes to respond-- if need be -- to a blog post or social media entry Send email to author of great article – invites to connect if she responds 14

Best Practice 10 Log into professional network every few days for about 8 -10 minutes Connects to 1 -3 people every few visits Writes a personalized email to 1 -2 connections Scans forums or blogs Comments briefly or posts a message Once or twice a month (at least) – write or co- writes a blog entry or post content you’ve already created (article, presentation, case, etc. ) Twitter new blog post Post blog on network profile RSS sends blog entry automatically to all subscribers Respond to comments 15

COMPANIES/LAW FIRMS AND SOCIAL MEDIA USE BY EMPLOYEES AND ATTORNEYS Cortez Smith 16

SOCIAL MEDIA USE What should companies/law firms do when employees/attorneys use social media to talk about their companies/firms? 17

SOCIAL MEDIA USE Approaches No specific policy Total ban? Social Media Policy/Guidelines 18

SOCIAL MEDIA USE Common social media guidelines Protect company confidential/proprietary information Respect third party IP rights Truthful statements No offensive statements Media contacts/inquiries 19

Social Media and IP Antone Johnson 20

Social Media and IP Social media provide endless opportunities for employees and companies to get into trouble IP infringement Confidentiality breaches Loss of trade secret protection Defamation Harassment and discrimination Antitrust violations, unfair trade practices, etc. 21

Social Media and IP Laws do not keep pace with rapidly evolving usage patterns Four years ago, Twitter didn’t exist Facebook access was restricted to students until late 2006 Google Wave? Gravity? What’s next? 22

Social Media and IP Social media present unprecedented challenges to the enforcement of IP rights Mistakes can be costly Up to $150 K statutory damages per occurrence for copyright violations Attorneys’ fees, defense costs, court costs, etc. In June 2009, Jammie Thomas-Rasset was found liable for $1. 92 million damages in a case brought by RIAA for illegally sharing 24 songs 23

Social Media and IP Who is most likely to get sued? Hint: Plaintiffs’ lawyers work on contingency! Most rank-and-file employees are judgment-proof Most companies have substantial assets and/or insurance policies Case law re: vicarious liability is developing, but who wants to be the case of first impression? 24

Social Media and IP Safe harbors apply to operators of UGC sites, not users Copyright: DMCA Section 512 notice and take- down Everything else: CDA Section 230 immunity Good for them, but what about the rest of us? Trade secret protection can be lost by disclosure 25

Social Media and IP Every company, regardless of industry, needs a social media policy Policies mean little unless they are realistic, enforceable in theory, and enforced in practice Every employee with computer access should be educated about the basics of IP and online liability HR and/or IT departments should emphasize as part of new hire orientation 26

Social Media and IP Tips for crafting an effective social media policy: Keep it short so people will actually read it Flexibility by functional area/business unit is essential Everything starts with good judgment and oversight When in doubt, check with your manager or Corporate Communications Assume all statements made through social media are made to the entire world Avoid any references to confidential or proprietary information Maintain a clear boundary between personal and official communications Clarify ownership of IP created in or for social media 27

Social Media and IP Original content is king; post only your own words When referring to other content from around the Web, link to it rather than copying Attribution is key; many IP claims are motivated by credit rather than economics Steer clear of risky content (music, videos, photos) unless original For brand content owners, monitoring social media can be an effective tool for enforcing their own IP rights 28

Spying on your Potential BFF (or Using SM to Investigate Employment Candidates) Jason Romrell 29

A Wealth of Information… 30

Consider this unlikely scenario: 31

Consider this unlikely scenario: 32

Potential Problems Ethics Violations MRPC 4. 1 Lawyer shall not knowingly make false statements of material fact or law to a third person… CA B&PC 6068(d) Lawyer must employ…means only as are consistent with the truth… CA B&PC 6101 The commission of any act involving moral turpitude, dishonesty or corruption…constitutes a cause for disbarment or suspension. 33

Potential Problems Ethics Violations MRPC 8. 4 Misconduct for a lawyer to violate the RPC, knowingly assist or induce others to do so, or do so through the acts of another… CRPC 1 -100 Gives the State Bar Board of Governors power to discipline lawyers for a willful breach of any of the CRPC. CA B&PC 6128 Lawyer is guilty of misdemeanor who…is guilty of any deceit or collusion, or consents to any deceit or collusion… 34

More Potential Problems Discrimination Invasion of Privacy Terms of Use Violations Criminal Violations Bad Hiring Decisions Employee Morale Reputation (your and your client’s) 35

Potential Solutions Have a written policy on using SM for background purposes. Follow your policy…consistently. Keep accurate records (electronic discovery will make “hiding” your tracks difficult). Don’t be stupid. Consider what purpose your investigation will fulfill, then limit your search accordingly. Don’t forget people are people. Some people lie about themselves. Some people lie about other people. Do you know the difference? 36

Potential Solutions Don’t do anything you wouldn’t be proud to openly and completely share with others. Be “transparent” (but don’t breach any confidences). 37

30 Ethics Tips in 30 Minutes Antone Johnson John Lipsey Jason Romrell Cortez Smith 38

Mr. Romrell Understand the tools…or get the heebie jeebies 39

Mr. Lipsey Asking subordinate employees to hand over passwords to sites in order to review what other employees are saying about your brand constitutes “coercion, ” and therefore permission is not “authorized” according to the Stored Communications Act (Houston’s Restaurant Case) 40

Mr. Johnson Social media provide endless opportunities for employees or counsel to make damaging admissions - this can come back to bite you 41

Mr. Smith Do not disclose confidential company business or client matters in your online profile, blog or comment post 42

Mr. Romrell Don’t be a Twittiot 43

Mr. Lipsey Linked. In “Testimonials” may constitute “advertisements” in California and therefore subject to ABA Model Rule 7. 2 governing lawyer advertising 44

Mr. Johnson Communications regarding your location can cause an inadvertent violation of the attorney’s duty of confidentiality (Rule 3 -100) 45

Mr. Romrell Don’t defame (also known as “yes, SM counts as published”) 46

Mr. Lipsey Using third parties’ passwords to access social networking site in order to obtain impeachment evidence against a witness is unethical (Philly Bar Assn. Prof. Guidance Comm. ) 47

Mr. Johnson When addressing legal subjects in blogs, forums, or sites such as Avvo. com, take care to phrase discussions in terms of offering general legal information rather than legal advice to avoid inadvertent formation of an attorney-client relationship 48

Mr. Smith Check if your company or law firm has a social media policy and if so, make sure you comply with it 49

Mr. Romrell Don’t allow employees to play dirty 50

Mr. Lipsey Be honest and transparent about your identity online at all times 51

Mr. Johnson Data sharing can blur the boundary between personal and professional on-line conduct 52

Mr. Smith If you form an online business with a non- lawyer, do make sure that none of the business involves the practice of law 53

Mr. Romrell Beware the pitfalls of using pretexting as an investigative technique – good old fashioned investigative work not allowed when using Social Media tools 54

Mr. Lipsey When monitoring employees online behavior and punishing them for policy violations, punishments must be meted out even handedly to all employees engaged in similar infractions 55

Mr. Johnson Communications which would otherwise be protected by attorney-client privilege or attorney work product doctrine can lose the privilege if other parties are included in the communication 56

Mr. Smith Do not provide anonymous legal advice in online comment posts or chat rooms 57

Mr. Romrell Privacy Rules! The general rule is that you should not disclose anything that a “reasonable person” wouldn’t want disclosed. What does your company want (or not want) disclosed? 58

Mr. Lipsey Legal advice given online to unsophisticated non-professionals could inadvertently create attorney-client relationship and resulting ethical obligations 59

Mr. Johnson The duty of confidentiality can be compromised in many ways if an online social networking service is used to communicate with coworkers or co-counsel 60

Mr. Smith Do not use copyrighted material (i. e. , photos, text, etc. ) in your online communications without permission of the copyright holder or licensor 61

Mr. Romrell Guess what…the elements of negligence don’t change just because you’re on a Social Media site 62

Mr. Lipsey Using hypotheticals and eliminating any explicit or implicit references to client names are important to ensuring “safe” online communications 63

Mr. Johnson Geographic boundaries are nonexistent online. Formation of a long-distance attorney-client relationship can result in the unauthorized practice of law in a state in which you are not admitted to the Bar 64

Mr. Smith If you are using social media to attract clients, do retain for two years a true and correct copy of your written communication or recording (i. e. , video or audio) 65

Mr. Romrell Can you inadvertently contract (or modify a contract) through a Social Media site? Yes. 66

Mr. Lipsey Just because ethics rules and the law would allow you to deal with negative online activity directed at you or your company – it doesn’t mean you should use those methods (e. g. , cease and desists) 67

Mr. Romrell When a Friend is not a Friend (even if they follow you, invite you or otherwise stalk you) 68

Questions? 69

Contact Information Antone Johnson, Bottom Line Law Group (310) 776 -5484, AFJ@bottomlinelawgroup. com John Lipsey, Lexis. Nexis (323) 662 -0399 , john. lipsey@lexisnexis. com Jason Romwell, Insurance. Leads. com (800) 647 -2164 Ext. 192, jasonr@insuranceleads. com Cortez Smith, Yahoo! Inc. (310) 907 -2713, cortez@yahoo-inc. com 70