Illustrator: Scotty Reifsnyder
There's trouble in social media, with a capital "t" and that rhymes with "e" and that stands for ethics. For legal professionals, social media offer a powerful and economical set of tools for marketing, research, networking, collaboration and more. But as with any emerging media, there are uncharted pitfalls as well.
Ethics and social media will be front and center at the American Bar Association's annual meeting this month in its hometown, Chicago. The ABA's House of Delegates — its governing body — will consider the recommendations of the ABA Commission on Ethics 20/20, which has proposed revisions to the Model Rules of Professional Conduct to address changes in technology. (See "Too Late & Too Little," by Michael Arkfeld, page 45, and "ABA to Tackle Technology Issues," by John Barkett bit.ly/LTN812e.)
Meanwhile, staying out of trouble when using social media is not difficult, provided you are aware of the dangers, and use some common sense.
1. REMEMBER THAT THE SAME RULES APPLY.
Blogs, social networks, Twitter, and the like remain relatively new forms of media, but the same old ethical rules apply. In fact, these new media generally do not require new rules.
Even the Ethics 20/20 Commission, after studying these issues for three years, concluded in a Dec. 28, 2011, report, "In general, we have found that the principles underlying our current Model Rules are applicable to these new developments. As a result, many of our recommendations involve clarifications and expansions of existing Rules and policies rather than an overhaul."
2. DO NOT BETRAY CLIENT CONFIDENCES.
Exhibit A for how lawyers can get themselves into trouble online is Kristine Ann Peshek, the former Illinois assistant public defender whose law license was suspended for 60 days because of her blog postings that authorities said exposed client confidences.
Peshek believed and maintained that she was blogging about her clients anonymously. Bar authorities, however, concluded that she provided sufficient detail in some posts to allow specific clients to be identified.
My advice: Do not blog about your own clients or cases, except as to details that have unequivocally become public, such as when a case of yours is reported in an appellate opinion. There is plenty else for you to blog about.
3. AVOID INADVERTENTLY FORMING ATTORNEY-CLIENT RELATIONSHIPS.
Many lawyers don't answer consumer questions in Q&A forums on sites such as Avvo and LinkedIn for fear of forming an attorney-client relationship.
The Ethics 20/20 Commission takes a reasonable approach to this issue, suggesting that this danger exists only when the lawyer gives the prospective client a "reasonable expectation" that he or she is willing to form an attorney-client relationship.
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