Our Mini-Theme: Social Media and Business Law – People Get Ready, There’s a Train a’comin’

The explosion of the use of social media has affected many aspects of our lives, and the relationship of social media to business law is no exception. In virtually every area of practice, social media have been a curse or a blessing, and sometimes both.  The benefit social media provides by enabling the immediate dissemination of information to a large number of people and the ability to obtain vast amounts of information though social networks, is also a potential trap, exposing attorneys and their clients to a wide range of potential liabilities.  And this area is very dynamic – as the use of social media expands, legislatures, courts, regulatory agencies, and other entities are rushing to grapple with the issues social media present while at the same time trying to anticipate developing practices that may implicate their mandates.

In this issue, we will explore four facets of the effect of social media on business law.

In the Threat of Social Media Diligence on the Confidentiality of the M&A Process: The Problem and Possible Solutions, Jonathan Gworek discusses the use of social media as part of the M&A diligence process, and the threats to transactional confidentiality posed by social media due diligence, such as a potential acquirer’s employee’s becoming aware of multiple LinkedIn reviews of his or her profile by persons associated with the target company and potential breach of contract claims from lost confidentiality.  In his article, Jonathan provides some possible solutions, and discusses as well some related issues.

In 10 Tips for Avoiding Ethical Lapses When Using Social Media, Christina Vassiliou Harvey, Mac R. McCoy, and Brook Sneath focus on legal ethics issues, and discuss a range of considerations applicable to the use of social media by lawyers, including whether postings by lawyers may constitute legal advertising or prohibited solicitations, implicate duties of confidentiality, or constitute impermissible communications with represented parties or unrepresented third parties. The tips are far-ranging, and also address whether online activities may be deemed to constitute the unlicensed practice of law, and whether it is proper to “friend” a judge.

In Discovery and Preservation of Social-Media Evidence, Margaret (Molly) DiBianca discusses the role of social media as a source of evidence, and the duties that arise from that role, including the obligation to preserve social media evidence, social media discovery, and the means by which social media can be accessed.  The burgeoning of social media has changes the landscape of much litigation discovery and, as the article notes, parties and counsel are well advised to adjust their thinking so that social media is seen as just another type of electronically stored information.

In Privacy and Social Media, Ted Claypoole reviews some of the implications arising from the sharing of personal information through social media sites, and some of the recent legislative and regulatory efforts to address perceived problems in this area, including misrepresentation of privacy policies, consequences of security breaches, rights of employers to access and monitor employee presence on social media sites, disclosures about tracking policies, and a recent effort in California to enable younger users to delete their posts from social media sites.

We hope that you find these articles to be of interest to you, both in your practices and in your personal lives.

I would like to express my appreciation to Ann Yvonne Walker for her assistance in assembling this issue.

Additional Resources

For other materials on this topic, please refer to the following. 

Business Law Today 

Ethics Update: Lawyers Must Keep Up With Technology Too
By Lois D. Mermelstein
March 2013 

The NLRB's Evolving Stance on Regulating Employee Social Media Use
By Susy Hassan
November 20, 2011 

Retaining and Supervising Social Media Communications under New FINRA Regulatory Notice 11-39
By Philip J. Favro
November 20, 2011

BLS Programs Material Library 

Navigating Ethical Quandries in the Social Media Age: How do the Rules Impact a Lawyer's Favorite Social Media Activities? (PDF)
2013 Committee Meeting
Presented by: Consumer Financial Services 

Things My Ethics Professor Didn’t Tell Me: Top Ethical Pitfalls for the Social Media (PDF) (Audio)
2013 Annual Meeting
Presented by: Young Lawyer, Consumer Financial Services, Cyberspace, Professional Responsibility 

To Tweet or Not to Tweet: What Boards of Directors and Those Who Advise Them Need to Know about Corporate Uses of Social Media and Avoiding Potential Minefields (PDF) (Audio)
2013 Annual Meeting
Presented by: Corporate Governance, Cyberspace, Federal Regulation of Securities




Nominations Sought for Section Leadership Positions

Do you know anyone who has what it takes to be a good Section leader? The Nominating Committee of the Section needs your recommendations for leadership positions for the 2017-2018 association year. Nominees will be selected for: Chair-elect (who automatically assumes the position of chair the following year); Secretary (who automatically assumes the position of vice chair the following year); Content Officer; two Section Delegates to the ABA House of Delegates; and five additional Council members for a four-year term expiring in 2021. The Nominating Committee will take into account the following principles in making its selections. It will: select nominees who have been substantial and active contributors to the Section; seek geographic diversity in the leadership of the Section; strive for representation from a broad cross-section of the areas of law represented in the Section; and seek to draw leaders from a broad cross-section of the various sectors of practice, including corporate law departments, government, academia and private law firms; and actively recruit nominees that reflect the diversity of the Section. Please send your nominations by email to susan.tobias@americanbar.org no later than November 18.

Question: Between November 2, 2015 and November 4, 2015, Harris Poll conducted an online survey of 2,017 adults ages 18 and older on behalf of NerdWallet, Inc. to understand U.S. consumers’ credit card payment habits and feelings around different types of debt. The results of this study were published in the 2015 American Household Credit Card Debt Study. According to the 2015 American Household Credit Card Debt Study, what percentage of U.S. adults would be more embarrassed to tell others about credit card debt than any other type of debt?
A. 10%
B. 35%
C. 55%
D. 90%

Question: From the late 1600s to the early 1800s, “debtors’ prisons” were commonplace with many cities and states operating brick-and-mortar detention facilities that were designed for incarcerating individuals who were unable or unwilling to pay their debts. Imprisonment for indebtedness was so commonplace that two signatories of the Declaration of Independence were jailed for failure to pay their debts. Can you name those two signatories?

The November issue of Business Law Today will focus on Nonprofits. Articles will range from the “Delaware Advantage” to nonprofit organizations needing nonprofit lawyers. In addition, other features include keeping pace with disruptive technological change, insurance bad faith recoveries, and constitutional issues in granting Americans a “Right to Dispute.”

Do you have a great idea for a BLT article? Would you like to see more of a featured column? Let us know how we can make Business Law Today the best resource for you and your clients. We welcome any suggestions. Please send us your feedback here.

Business Law Section Fall Meeting
November 18-19, 2016
Washington, DC

Business Law Section Spring Meeting
April 6-8, 2017
New Orleans, LA

Miscellaneous IT Related Legal News (MIRLN) 25 September - 15 October 2016 (v19.14)

BLT is a web-based publication drawing upon the best of the Section's resources, including featured articles and other information from around the Section. Stay informed on the latest business law practice news and information that will benefit you and your clients.