Like most lawyers, you probably would rather be cleaning your desk and reorganizing all your files instead of thinking about how you should be using social media. There is a significant reluctance from lawyers on the topic of implementing a social media strategy, but the reality is this: Social media is not going away, and you need to be prepared to use it while also understanding how it can get you or your clients in trouble.
Most Common Ethics Offenses
The majority of the conversation about the ethics of social media currently focuses on:
There are other ways lawyers can get themselves in trouble, but these are the easiest and most common offenses. Before diving deeper into the major issues surrounding the use of social media by lawyers, I want to make you aware of the conversation surrounding a lawyer’s responsibility to understand social media networks.
Interestingly, one of the topics of this conversation is the possibility of adding technology to ABA Model Rule 1.1: Competence, and the implementation of this change appears to be happening sooner than you might think. Just recently, a South Carolina lawyer was suspended because she refused to get an email address.
This will likely include understanding how social media networks function. Many of your clients are using social media on a daily basis. For you to give your clients proper guidance on how to avoid pitfalls that could cause problems, you should understand the environment in which they communicate both publicly and privately.
Though having a basic understanding of how the various social media channels function is not yet an ethics requirement, it is certainly plausible that it will be. Getting ahead of this curve will save you time and effort later. It will also help you provide better guidance to your clients. Do you know when a tweet is public or private? What information can be seen publicly on your Facebook or LinkedIn profiles, and how can you change those privacy settings?
Over the last two years, the media has highlighted several instances where a law firm’s client caused a lot of problems due to a misstep with his or her use of social media. If you can, at a minimum, communicate clearly to your clients the liabilities of participating in each of these networks, you can stave off potential future issues. Simply telling clients to “not” interact with social media at all is akin to telling them to not use their phone or email; it is just not realistic.
You may also need to address actions taken on social media by your client, a witness or even an opposing counsel’s client. A prime example of this is the George Zimmerman case, where neither the prosecutor nor the defense counsel understood how Twitter functions. If you are going to submit social media activity for a trial, you should at least understand the basics of that social media platform.
That is for the future. What is really pressing is your own activity on social media and knowing the ethical mistakes to avoid.
Today’s clients expect a law firm of any size to have a minimum web presence. This certainly includes your website, but it also extends to review sites, online profiles and, yes, social media.
This is not to say that you must share what kind of coffee you had that morning or pictures of your vacation. What clients are looking for is that you have a professional presence that is well rounded on the Internet. Since social media networks rank so well in Google, you would be remiss not to take advantage of the opportunity to create these profiles. At a minimum, post your blog updates, news or information you find interesting to your accounts.
Common Ethics Missteps
Here are the common mistakes and how to avoid them (of course, every state is unique, so please check with your local bar association for more guidance):
Solicitation. A hat-tip to The State Bar of California for releasing Formal Opinion No. 2012-186 that clearly outlines several social media posts and how they may or may not violate California’s ethics. The biggest misstep concerns commercial speech. At the point you ask someone to contact you or visit your website, or invite them to become clients for pecuniary gain, you are soliciting business and therefore must have a proper disclaimer. For one lawyer, merely saying “who wants to be next” was enough to move that post from an announcement to solicitation.
The best way to avoid this pitfall is to pause before you hit Send and ask yourself if this post contains commercial speech.
Advertising. Some states have very strict guidelines pertaining to how you can advertise, the kind of disclaimer you must have, images you can use, and how long you must keep a record of your advertisements. A good rule of thumb is this: Posting on social media networks is not inherently advertising unless that post contains commercial speech.
The best practice is to include a link in the “about” section of the social media network to your disclaimer and avoid commercial speech when you are posting.
Discovery. Getting access to what people post on social media networks can completely sway a case to your favor. How you obtain that information is up for debate. The common network at question is Facebook. If the user’s profile is set to private, then to gain access to their posts you must “friend” them. In states like New York, there is a more liberal policy on whether you can “friend” someone solely for the sake of discovery; Pennsylvania, on the other hand, is not so liberal. The best option here is to check with your state bar association and ask specifically if you, or a third party, can connect with someone for the sake of discovery and what information you are required to disclose.
Confidentiality. This one is a little surprising, but it still happens. Often the situation occurs when a lawyer reveals too many details about a client, for example, the chief of police in Cincinnati, Ohio. There have been times when an attorney posts about a client by name (an obvious confidentiality issue). Other issues include lawyers thinking they had proper consent to talk about a case when they didn’t. In the case of Hunter v. Virginia, you can see how posting about clients by name can lead to a serious headache for a lawyer.
The best practice is to avoid talking about clients on social media — period. There really is no need. You can take full advantage of social media without having to mention anyone, specifically or vaguely.
If you intend to be competitive over the next five years, social media is something you will want to learn so you can market your firm better and be able to give your clients the best advice.