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Wednesday, April 22, 2015

Coach Fired for Tweet

A high school softball coach was fired for posting the following "tweet" on her personal Twitter account:

The tweet was apparently a response to earlier statements made by restaurant owners to the press that "If a gay couple came in and wanted us to provide pizzas for their wedding, we would have to say no."  Although the coach has since deleted the tweet, it lives on in "screen caps" as well as the many replies and forwards of her tweet.

The Indiana coach had been serving a suspension since April 1st, but the school district superintendent confirmed that she was officially terminated earlier this week.  

Tuesday, April 21, 2015

Federal Government Issues Guidelines on Employee Use of Social Media

On April 9, 2015, the U.S. Office of Government Ethics issued a legal advisory titled "The Standards of Conduct as Applied to Personal Social Media Use" that apply to executive branch employees of the federal government.  You can read the legal advisory here.  

The introduction to the legal advisory states that the standards of conduct are not intended to prohibit executive branch employees from establishing and maintaining personal social media accounts but to serve as guidelines for these employees in engaging in personal social media activities.  

Here's a preview of the standards of conduct:

1.  Use of Government Time and Property

When employees are on-duty, they must make an "honest effort to perform official duties."  That means that access and use of personal social media accounts should be limited while on duty.  Further, government property must be used only to perform official duties unless an employee is authorized to use the property for other purposes.  Finally, employees must follow their agency policies on social media use, including any 'limited use" policies.

2.  Reference to Government Title or Position & Appearance of Official Sanction

As a general rule, employees are prohibited from using their official titles, positions, or any authority associated with their public offices for private gain or in any manner that could be interpreted as government endorsement of their activities. However, the standards do not prohibit an employee from identifying his or her official title or position on the site's biographical information area.  The standards set out 7 factors for agency ethics officers to consider in determining whether an employee has violated this standard, including whether an employee states that he or she is "acting on behalf of the government" or "refers to his or her connection to the government as support for the employee's statements."  Employees are not required to post disclaimers disavowing government endorsement, although they are encouraged to clarify that their communications reflect only their personal views and not the views of the federal government or agency.

3.   Recommending and Endorsing Others on Social Media

Employees are permitted to make recommendations or endorsements of others in their personal capacity, such as on LinkedIn.

4.  Seeking Employment Through Social Media

Employees must be cautious in using social media to seek employment to ensure that their conduct complies with other federal regulations, including applicable disqualification requirements and any additional agency regulations.  Posting a resume or summary of professional experience will not violate the standards.

5.  Disclosing Nonpublic Information

Employees are prohibited from disclosing nonpublic information to further their private interests or the private interests of others.

6.  Personal Fundraising

Employees may use personal social media accounts to fundraise for nonprofit charitable organizations in a personal capacity, so long as the employee does not personally solicit funds from a subordinate or a known prohibited source.  Employees may not use their official titles, positions, or authority to further fundraising efforts.

7.  Official Social Media Accounts

Employees who use official government accounts must apply with the agency directives, regulations, and policies and all conduct and activities must be for official purposes.

Monday, April 13, 2015

California Opinion Would Establish Guidelines for Attorney Bloggers

Lawyers blog. That in itself is not a problem, as blogging is neither illegal nor unethical.  However, the content or materials posted on a lawyer's blog could implicate any number of ethical rules that lawyers must follow.  Recently, California has proposed an opinion addressing the ethics rules that restrict or limit attorney advertising.  You can read the proposed opinion here.

In short, proposed opinion 12-0006 would provide guidelines on the type of blog content that would constitute advertising in California and, therefore, be subject to Rule 1-400 of the Rules for Professional Conduct that applies to California attorneys.  

The proposed opinion provides the following guidelines to California attorneys who blog:
  1. Blogging by an attorney is subject to the requirements and restrictions of the Rules of Professional Conduct and the State Bar Act relating to lawyer advertising if the blog expresses the attorney’s availability for professional employment directly through words of invitation or offer to provide legal services, or implicitly through its description of the type and character of legal services offered by the attorney, detailed descriptions of case results, or both. 
  2. A blog that is a part of an attorney’s or law firm’s professional website will be subject to the rules regulating attorney advertising to the same extent as the website of which it is a part. 
  3. A stand-alone blog by an attorney that does not relate to the practice of law or otherwise express the attorney’s availability for professional employment will not become subject to the rules regulating attorney advertising simply because the blog contains a link to the attorney or law firm’s professional website. 
Comments were accepted until late March.  A formal opinion will follow the committee's review of the comments.

Thursday, April 9, 2015

Case Claims Facebook "Tag" Program Violates Illinois Privacy Laws

On April 1, 2015, Carlo Licata filed a class action complaint in Cook County, Illinois, against Facebook, Inc. alleging that the company violated the Biometric Information Privacy Act (an Illinois statute) when it launched "Tag Suggestions" that recognizes and identifies friends in photos uploaded by users so the users can "tag" them in the photo.  Licata v. Facebook, Inc. (Cook County)

The Biometric Information Privacy Act (BIPA) was enacted in 2008, and makes it unlawful for a company to "collect, capture, purchase, receive through trade, or otherwise obtain a person's biometric identifiers or information unless the company provides advance notice and receives a written release for the use.  

Licata alleges that the "Tag Suggestions" program uses facial recognition technology to scan faces in photos to determine identities based on stored photos in user profiles.  In the complaint, Licata argues that the data stored by Facebook is derived, in part, from biometric identifiers collected from the image of a person's face.  The storage and use of this stored biometric data (which Licata alleges is millions of user faceprints) is done without prior notice and written consent in violation of BIPA.

Licata defines the "class" for the class action as all Illinois residents who had their faceprints collected, captured, received, or otherwise obtained by Facebook while residing in Illinois.

This will be an interesting case to watch.

Disclosure:  The author is an Illinois resident with a Facebook profile, so a potential plaintiff if the class is certified.

Monday, April 6, 2015

Use of Photos Without Permission Costs Lawyer $8,000

Now, here's an interesting (and maybe a little ironic) case out of D.C. involving use of stock photos without permission.  The plaintiff company claims that the defendant used two of the company's photos on the defendant's website without the company's permission.  The suit sought $150,000 for each instance.  The irony is that the defendant happens to be a patent lawyer.  Upon notice of the alleged infringement, the lawyer removed the photos, but didn't respond to the company's efforts to settle so the company filed the complaint.  The case eventually did settle, to the tune of $8,000.

Lesson?  You can't just copy or upload photos on your own site without permission - just because they are already on the internet does not necessarily make them fair game to everyone.

Wednesday, April 1, 2015

LinkedIn Endorsements and Attorney Ethics

I have written about the subject of ethical issues for attorneys in regard to LinkedIn endorsements a couple of times on this blog, including a post regarding the American Bar Association cautioning attorneys to be careful about misleading endorsements. Just last month, the New York County Lawyers Association Professional Committee issued a formal opinion on the ethical implications of attorney profiles on LinkedIn.  While the opinion is not binding on attorneys in other jurisdictions, it is instructive.  You can read the full opinion here.

In short, the NY Ethics Committee concluded that attorneys can maintain profiles on LinkedIn, including information about their education, areas of practice, skills, and recommendations written by other users. If an attorney's profile contains a description of areas of practice or skills or endorsements, then the profile may be considered attorney advertising and requires the disclaimers required by Rule 7.1.  Endorsements or skills do not, however, constitute a claim that the attorney is a "specialist" under Rule 7.4, so are not barred so long as the information is truthful and accurate.

In its opinion, the Ethics Committee cautioned attorneys to periodically review endorsements and recommendations made by other users to make sure they are truthful and not misleading.  While the Committee did not provide any specific guidance on what "periodic" means, it did note that it wouldn't obligate an attorney to review, monitor, and revise their LinkedIn sites on a daily or even weekly basis - just at "reasonable intervals."

An attorney should be careful in using the skills & expertise function on LinkedIn, and in allowing endorsements, so as not to violate any applicable ethics rules that could be seen as misleading. So, for example, if you are a real estate attorney who never goes to court, leaving an endorsement for "civil litigation" on your LinkedIn profile could be considered a violation of the ethics rules against false or misleading claims about the attorney's services, even if you did not put that information on your profile yourself.  


Blog comments do not reflect the views or opinions of the Author or Ancel Glink. Some of the content of this blog may be considered attorney advertising material under the applicable rules of certain states. Prior results do not guarantee a similar outcome. Please read our full disclaimer.