Happy New Year! Some of you may recall when I wrote about this proposed opinion back in early June. It addresses when a social media post by an attorney might cross the line from a statement to an advertisement, thereby triggering additional state bar rules. In late December, apparently with little fanfare, the opinion was formalized as CAL 2012-186.
Welcome back, all. I hope you had a nice holiday and are fully rested so that you may now spend the rest of the season…at the mall! We're getting close to the New Year and as is true each time we approach January 1st, we have a bunch of new laws taking effect. California employers and post-secondary institutions should take note of two of them; AB 1844 and SB 1349. Both were signed into law by Gov. Jerry Brown back on September 27th, 2012.
Although the language in each bill is different, essentially, AB 1844 prevents employers (also potential employers) from demanding, using or exploiting an employee's (or potential applicant's) social media passwords and information.
SB 1349 is substantially similar, except that it applies to post-secondary institutions; both public and private.
There is speculation in the media about the necessity of these types of regulations. Many believe that a substantial risk of invasion of privacy doesn't exist. Maybe not; but moving forward, I believe the risk will increase exponentially.
What's next – bionic mannequins???
The original quote, by Mark Twain, is "A lie can travel half way around the world while the truth is still putting on its shoes."
Not true anymore, in this era of Social Media.
The original title I considered for this post was, "Will Social Media End Lying?" The problem is, I have the ready answer. No. The better question is, will it change lying as we know it? Yes, and it's already having that effect. Unfortunately, there's still a huge contingent out there who didn't get the memo. Yet.
This process was well illustrated during the recent political conventions. The cycle between one of our major politicians lying, the lie being refuted (in this particular example, via Twitter), then the campaign issuing a "correction" was less than 30 minutes.
This sure ain't the old days. That would be circa 2008…
That's why to me, the question is, "Will Social Media…" as opposed to, "Has Social Media…". Perhaps there'll be a little more truth in politics.
Now that's change I can believe in…
First, my disclaimer: This is a State Bar of California Opinion – and I'm Vice-Chair of their Law Practice Management & Technology Section Executive Committee (LPMT). I want to remind you, "This blog site is published by and reflects the personal views of Perry L. Segal, in his individual capacity. Any views expressed herein have not been adopted by the State Bar of California's Board of Trustees or overall membership, nor are they to be construed as representing the position of the State Bar of California."
The last time I analyzed one of these, it pertained to VLOs. I found that Opinion much more difficult to address. Formal Opinion Interim No. 10-0001 (Social Networking) is easier in some respects, because its main purpose is to apply current California rules (specifically, Rules of Professional Conduct: Rule 1-400 Advertising and Solicitation and sections of the Business and Professions Code) to what it refers to as, "social media websites". That's where the trouble begins; with the adjective. We'll get to that in a moment.
There's no reason for me to do a dissertation on 1-400. California attorneys should already be familiar with this Rule (or they can look it up, above). Suffice it to say, for our purposes, this can be like Jeopardy, because we need ask ourselves two questions:
- What is a communication?
- If a posting is determined to be a communication, is it an advertisement or solicitation?
The only major problem I have with the document is Footnote Two on Page One (link opens the 6-page PDF). It attempts to describe Facebook "friending" as an example of what it considers a "controlled" group. It doesn't seem to take into account that, like Twitter, et al, your control group can republish your post (e.g. Re-tweeting). My view? Continue to treat your posts as if they're visible to the entire world!
Page Five reminds us of Rule 1-400(F): "…the Committee notes that a true and correct copy of any “communication” must be retained by Attorney for two years. Rule 1-400(F) expressly extends this requirement to communications made by “electronic media.” If Attorney discovers that a social media website does not archive postings automatically, then Attorney will need to employ a manual method of preservation, such as printing or saving a copy of the screen." [italics added]
Gulp! How many of you remembered that part of the Rule?
Concluding, the Opinion has an adject(ive) issue. It refers to "social media websites", but it also refers (as it should, in my opinion) to general attorney websites. If I were to make one glaring modification to this document, it would be to find the phrase, "social media website(s)" wherever it appears, and replace it with, simply, "websites".
The qualifier serves no purpose.
By the way, if you'd like to comment on the Opinion, the 90-day period is open through 5pm, July 2nd, 2012.