New Guidance for Lawyers on the Ethics of Social Media Use
Do you need advice about the ethics issues involved in social networking? Chances are your questions will be answered by the Pennsylvania Bar Association’s recent Formal Opinion 2014-300. The 18-page opinion addresses issues that are important for lawyers in every state.
10 Ethics Issues That Are Addressed
The Pennsylvania opinion rests on the premise that Rule 1.1 of the Model Rules of Professional Conduct requires lawyers to have “a basic knowledge of how social media websites work,” as well as the ability to advise clients about the legal ramifications of using the sites. The Pennsylvania Bar Committee offers conclusions about 10 ethics issues involved in the use of social media for business purposes by lawyers and clients. Also, the committee emphasizes that lawyers should always assume their use of social media may be subject to the rules of professional conduct.
The topics addressed in the opinion are well supported with rules and opinions from many states. The bar committee reached the following conclusions:
- Attorneys may advise clients about the content of their social networking websites, including the removal or addition of information.
- Attorneys may connect with clients and former clients.
- Attorneys may not contact a represented person through social networking websites.
- Although attorneys may contact an unrepresented person through social networking websites, they may not use a pretextual basis for viewing otherwise private information on social networking websites.
- Attorneys may use information on social networking websites in a dispute.
- Attorneys may accept client reviews but must monitor those reviews for accuracy.
- Attorneys may generally comment or respond to reviews or endorsements, and may solicit such endorsements.
- Attorneys may generally endorse other attorneys on social networking websites.
- Attorneys may review a juror’s Internet presence.
- Attorneys may connect with judges on social networking websites provided the purpose is not to influence the judge in carrying out his or her official duties.
The discussion of each topic notes other issues, such as spoliation of evidence, which may prompt additional research about relevant state law. The opinion is limited to the use of social media by lawyers in their practice — advertising and marketing issues are not specifically addressed.
The opinion offers some excellent examples of the pitfalls of social media. For example, a client forfeited a substantial settlement when his daughter violated the confidentiality term in the settlement agreement by posting details about it on Facebook. Likewise, a lawyer was disciplined when he advised a client to delete damaging photos from Facebook and also withheld evidence about the photos and their deletion. The opinion discusses several cases where clients’ postings were held to be discoverable, and in some cases admissible in litigation, as well as other cases where discovery requests for postings were denied.
With respect to endorsements, the opinion states that an attorney “has a duty to remove or correct [an] inaccurate endorsement” on a LinkedIn page (such as when a lawyer who practices only criminal law is endorsed for expertise in matters that do not pertain to his or her criminal law practice), regardless of who posted the endorsement.
In other examples, a lawyer who revealed confidential client information on a public blog for the purpose of defending against accusations in a client’s public negative online review of the lawyer was reprimanded for that conduct. The responsive information went beyond what was needed to respond to the accusations.
Another case involved a lawyer publishing client confidences on a public blog. The lawyer was suspended for 60 days because the blog discussed her clients — all criminal defendants — in an identifiable way, and because she revealed confidential (and detrimental) information about some of them. (Note that First Amendment arguments raised in those cases were not discussed in the orders because the orders were entered by the Illinois Supreme Court on petitions for “discipline on consent”; see Illinois S. Ct. R. 762(b).)
The Pennsylvania Bar opinion is a good source of ethical analysis about the social media issues that often arise in law practices. It builds consistently on ABA Formal Opinion 462 (judge’s use of electronic social networking media).
Short Answer on Advertising and Marketing Issues
Although the Pennsylvania Bar opinion does not discuss use of social media for advertising and marketing purposes, as all attorneys know by now the usual rules about ethical lawyer advertising apply to websites and other social media. In fact, the short answer to all social media questions about advertising and marketing can be found in each state’s version of the Model Rules of Professional Conduct, Rules 7.1, 7.2, 7.3 and 7.4. Those rules:
- Prohibit “false or misleading communication about the lawyer or the lawyer’s services,” including both “material misrepresentations of fact or law” and “omission of a fact necessary to make the statement considered as a whole not materially misleading.”
- Require that any advertising include the name and address “of at least one lawyer or law firm responsible for its content.”
- Require compliance with rules about communicating areas of practice and specialties, use of trade names, information about jurisdictional limitations and accurate identification of lawyers’ practice affiliations (or lack thereof).
Individual states may have additional rules, such as the Illinois Rule of Professional Conduct 7.4 (lawyers ordinarily cannot use the words “certified,” “specialist,” “expert” or similar terms because the Supreme Court of Illinois does not recognize certifications of specialties in the practice of law). Beyond state rules, ABA Formal Opinion 10-457, addressing lawyers’ websites, offers important guidance for the marketing of lawyers’ services.
Taken together, these opinions and rules constitute a useful primer on the essential ethics issues involved in the use of social media for professional and marketing purposes. Most importantly, when in doubt, lawyers should assume that social media do not permit conduct or communications that would be improper if such conduct or communications were done in-person or through the use of more traditional forms of communication.
To read the full Pennsylvania Bar Formal Opinion 2014-300, click here (members only access).
Mary Pat Benz is an attorney in solo practice in Chicago, where she focuses on attorney discipline and professional responsibility matters, policyholder insurance coverage litigation, appeals and alternative dispute resolution. With more than 30 years in practice, she is an adjunct professor at Northwestern University School of Law, teaching trial practice. Previously Mary Pat was a litigation partner at Winston & Strawn; Quinlan & Crisham; and Phelan Pope & John.
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