A Lawyer’s Duty to Understand Social Media
[Debbie the editor adds: John wrote this ages ago – my fault for the delay.]
At attorney disbarred for waging an online harassment campaign against the judges in two of her cases. A court attorney fired and publicly admonished for live tweeting a disciplinary hearing. A public defender suspended for 60 days, in part for revealing confidential client information on her blog. A judge removed from office for posting about his cases on a message board. But these are obvious breaches of the ethics rules. Surely an attorney can avoid a social media-induced breach of the ethical rules by just not posting?
Not so fast. Over half of states in the U.S. have adopted an ethical duty of technology competence for attorneys practicing in the state. But even where there is no explicit duty, an attorney has a duty of competence in any state adopting the ABA Model Rules of Professional Responsibility. Attorneys must be competent in any technology that affects their practice. Most law firms have a web site and many have social media accounts. Most lawyers are on at least one social network. And even if they do not participate on the internet, their clients probably do.
But guidance is available. Comprehensive social media guidelines from several jurisdictions, including New York, Pennsylvania, and the District of Columbia, offer guidance in seven major areas:
Advertising: Posts made on social media feeds may be considered attorney advertising under your jurisdiction’s rules. It may be necessary to review not only your own content but also posts made by others to your profiles. Rules about advertising specialties generally apply to LinkedIn profiles. Payments made to online referral services like Avvo may be considered unethical fee-splitting arrangements.
Furnishing legal advice through social media: Responding to legal questions on social media sites like Twitter and Facebook can open up a host of problems including breaching client confidentiality, inadvertent establishment of an attorney-client relationship, and conflicts of interest.
Use of social media material as evidence: Social media posts can be used as evidence, under traditional evidence rules. It must be properly admitted. Attorneys must properly instruct their clients on preservation of posts after litigation begins.
Communications with clients and others: Attorneys must act to protect confidential client information. This means not only keeping such communications from public sites like Twitter and Facebook, but possibly also assessing whether or not certain communications should be sent by email. In some jurisdictions, attorney responses to negative online reviews may not contain confidential client information. Attorneys must follow ethical and other rules when gathering information from social media sites: they may not deceive a party to gain access to their social media profiles or have others do so on their behalf, and they may not contact represented parties.
Researching jurors: Attorneys must not contact jurors if researching their online profiles. The notification that LinkedIn provides to users to let them know who has viewed their profile may be considered contact. Attorneys may be required to notify the court about any juror misconduct they find on a juror’s social media account.
Communications with judges: Contact with a judge on social media, if allowed, cannot be for the purpose of attempting to influence the judge.
Social media is a possible minefield, but attorneys ignore it at their peril. At a minimum, they must understand how their own use of social media fits within their ethical requirements. They must also understand their clients’ use of social media in order to competently advise them. Librarians are the most likely people in many organizations to understand how social media websites work and to be familiar with their terms and conditions.