The 2012 ABA Legal Technology Report indicates that 95 percent of lawyers have a presence on the professional-oriented social media site LinkedIn, while 22 percent maintain a presence on Twitter. Many law firms also maintain Facebook pages, blogs and enhanced websites to attract clients without spending precious marketing dollars.
Social media presents great opportunities for attorneys, allowing them a widespread, inexpensive platform to exhibit their areas of practice and expertise. In particular, blogs provide a large marketing demographic, enhanced client interaction and visibility and timely feedback. Social media is an effective tool to facilitate reputation and relationships — timeless concepts of business development.
These benefits, though, come with real risks. Among the most common landmines are attorney advertising restrictions; breaching client confidentiality; unintentionally creating an attorney-client relationship; and accidently engaging in the practice of law in jurisdictions in which you are not licensed to practice. Each is addressed below.
Ethics and Lawyer Liability
Rules 7.1–7.5 of the Pennsylvania Rules of Professional Conduct, which generally parallel the ABA Model Rules of Professional Conduct, govern advertising and other communications about lawyers and their services. While there may be some debate about whether these rules apply to social media, the safest approach is to assume that they do, at least to the extent online posts are aimed at attracting clients.
It is easy to imagine ordinarily careful and conscientious lawyers casually chatting on social media and, without intending to advertise or solicit clients, unwittingly invoking Rule 7.1 governing communications regarding a lawyer’s services. Rule 7.1 requires that a description of a law firm and the services it provides be accurate and truthful. That means that lawyers must ensure that all professional information available on their social networking sites is accurate and truthful and that any postings that do not meet these criteria are removed, even if the information or statements on the site were posted by a third-party.
LinkedIn has a feature that allows lawyers and clients to write testimonials of each other. Some states prohibit the use of recommendations or require certain restrictions or specific disclaimers, but Pennsylvania has taken a more relaxed approach. Still, lawyers should avoid making reciprocal recommendations where the lawyer agrees to post a recommendation in exchange for receiving one. Rule 7.2 prohibits anything of value in exchange for a recommendation.
Although YouTube provides a unique way for attorneys to broadcast their services and abilities to the world, if the video goes beyond strictly educational or informational content, it constitutes advertising, subject to the same rules that apply to television advertising.
As of December 2012, Facebook has more than 1 billion active users. Law firms must be mindful of where and what they post. When using Facebook, avoid solicitation and do not target a specific "friend" in an attempt to generate a new client. If you keep comments and commentary general, you will avoid accusations of improper solicitation.
Further, statements made on Facebook may trigger defamation claims; in fact, because of the extraordinarily large social media audience, its use may actually increase exposure to liability. Always be careful what your "friends" say about you online. While attorneys are not responsible for online postings by third parties (unless the lawyer prompts the post), the lawyer is responsible for monitoring and removing information from the site if it does not comply with advertising rules.
In addition to advertising, lawyers are increasingly using Facebook and other social media during litigation to obtain informal discovery. Indeed, it might even be malpractice in some cases not to check. This frequently discussed ethical issue of social networking by lawyers is the subject of ethics opinions. The Philadelphia Bar Association professional guidance committee concluded that lawyers may not ask a third party to send a friend request to an adverse witness in the hopes of finding possibly impeaching evidence on a Facebook page. Thus, while lawyers may be tempted to disguise their identity to friend a target, or to ask someone to friend the target and share what he or she discovers, an emerging trend is that it is ethically improper for lawyers or their agents to obtain such information through subterfuge or deceit.
Anything you tweet can be used against you. Some of the risks include engaging in ex parte communications during litigation, directly contacting an adverse party represented by counsel or simply not taking the time to ensure the comments one posts are correct.
Twitter has such open conversation and rapid-interaction capability that a lawyer must keep ABA Model Rule 7.3 (or the local equivalent) in mind. The rule forbids using real-time electronic contact to solicit business directly from a potential client. However, the Philadelphia Bar Association professional guidance committee has opined that communications in chatrooms do not constitute real-time communications that would violate Model Rule 7.3. Thus, until more concrete guidance is available, one should use caution when using Twitter as a marketing platform.
Other Attorney Pitfalls
Beyond the advertising concerns inherent in using social media as a marketing tool, online networking can create other ethical risks for attorneys that might not be readily apparent.
• Breaching Client Confidentiality
Revealing client confidences while using social media occurs more often than you might think. A lawyer tweets, "Just talked to my client, who totally lied to me." Because the date and time of the tweet is included within the post, it has the potential of revealing information to someone who now knows the client was meeting with the lawyer that day. Even tweeting or blogging about a decision already in the public record may breach client confidentiality because attorneys have an independent obligation to protect that information from being further published. Thus, as a general rule, lawyers should refrain from posting any information about client matters, even if another source has already made the information public.
• Attorney-Client Relationships
Attorneys must be careful not to cross the line from offering general legal information to offering specific legal counsel through a blog or social media post, which can inadvertently trigger an attorney-client relationship and the attendant duties. Answering questions with general advice is an effective way for attorneys to establish their expertise and market their practice. Nevertheless, firms must be mindful that an attorney-client relationship can be formed with very little formality. Particularly online, the distinction between information and advice easily becomes blurred when a lawyer engages in back-and-forth communication with a prospective client. The attorney also can run afoul of the unauthorized practice of law where the legal advice relates to a jurisdiction in which the attorney is not licensed.
Lawyers seeking to use social media may find it appearing more like an ethical minefield than a valuable marking tool and steer clear of it altogether. The risks of social media use may be unavoidable, but can be effectively managed with proper prevention.
Always include a disclaimer in any online communication that the information you are providing does not create an attorney-client relationship and is based on the law of your state only.
Because of the serious potential for liability associated with social media use, it is essential that law firms provide guidance on its use and educate attorneys and staff on the risks of posting information, comments and criticisms online. Prudent law firms can avoid ethical missteps by implementing a social media policy that:
• Identifies the permissible use of social media and includes language that specifically states the major risks of irresponsible online activities including unintended attorney-client relationships, conflicts of interest and advertising violations.
• Defines clearly what constitutes online firm-related activities and specifically prohibits giving legal advice through any post.
• Reinforces the ethical responsibility to keep client information private even if it is already in the public.
• Cautions about giving legal advice online and provides disclaimer language to be used on all postings.
• Prohibits dishonest behavior and misrepresentation, such as using an alias or soliciting a third party to improperly obtain discovery.
• Designates an individual — or team of individuals — as the go-to person for more information and clarification and to monitor all uses of social media.
A social media policy can be an easy, effective method to prevent legal malpractice and ethical violations if it is implemented properly and enforced.
Prevention Is Key
Social media changes how attorneys interact and communicate and is a powerful, relatively low-cost marketing resource. However, its use can be particularly challenging, as it is still evolving and lacks clear ethical guidelines. Without proper prevention, lawyers risk losing control of their messages, inadvertently creating an attorney-client relationship and generally running afoul of the Rules of Professional Conduct. Common sense and good judgment serve as good points in guiding social media use. •
Philip Voluck is a partner at Kaufman Dolowich Voluck & Gonzo. He concentrates his practice in the area of employment practices liability, with a particular emphasis on defending and resolving claims of sexual harassment, employment discrimination and wrongful discharge. He can be reached at firstname.lastname@example.org.
Gregory Hyman has been defending employers in employment practices liability cases for more than 20 years and counsels employers on a wide range of workplace issues and employment policies. His practice also includes professional liability defense for attorneys. He can be reached at email@example.com.