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While most attorneys recognize the value of social media in promoting their practices, attorneys do not always apply the same level of care when using social media in a supposedly personal capacity. However, recent developments make clear that attorneys may not be able to simply take their attorney hats off and ignore their ethical obligations when using social media.
Indeed, a recent ethics opinion issued by the District of Columbia Bar observed that “[s]ocial networking sites, and social media in general, make it easier to blur the distinctions between communications that are business and those that are personal.” D.C. Ethics Opinion 370. This is especially true where an attorney intends to use social media for personal purposes but nonetheless identifies the name of her or his law firm (e.g., in a Facebook profile or Twitter biography).
Where an attorney’s social media account identifies the attorney’s profession or even law firm, members of the public may associate any posts made with that law firm. Even without such an identifier, clients and others may often easily locate (and often “follow” or “friend”) attorneys on social media platforms, such as through a simple search on Twitter. Because of this, it can be hard for attorneys to disassociate from their profession on social media, even for “personal” accounts.
One issue implicated by the pervasive use of social media is the possibility that the attorney’s social media posts will create a “positional” conflict. A positional conflict is one that may exist, for example, if an attorney argues for a certain interpretation of a statute in one lawsuit because it is in the best interests of one client, but then at the same time argues for the opposite interpretation of the same statute in another lawsuit on behalf of a different client. Typically, such conflicting representations are not per se inappropriate unless one representation has an adverse impact on the other, but the bar rules suggest that pursuing conflicting issues before an appellate court could be improper.
While the Georgia Rules of Professional Conduct address this type of positional conflict (see Comment 9 to Rule 1.7), they do not address the situation where the attorney takes one position on behalf of a client but separately argues or expresses support for an opposing position in a personal capacity, which today most commonly could occur on social media.
Such an event may be informed by Comment 6 to Rule 1.7, which states that a lawyer’s “personal or economic interests should not be permitted to have an adverse effect on [the] representation of a client.” Interpreting a similar rule, the District of Columbia Bar recently became one of the first bar associations to address the potential conflicts created by the use of social media and suggested that there could be additional risks for social media-savvy attorneys.
In Ethics Opinion 370, the District of Columbia Bar stated that attorneys sharing information on social media sites should exercise caution “when stating positions on issues, as those stated positions could be adverse to an interest of a client, thus inadvertently creating a conflict.” Indeed, the District of Columbia Bar warned that “[c]ontent of social media posts made by attorneys may contain evidence” of conflicts.
Thus, seemingly innocent social media posts made in a personal capacity may create serious ethical issues for attorneys. Attorneys providing their personal opinions on matters may not even be aware that they are making comments that are potentially adverse to other clients of their firms. Although some commentators have suggested that the D.C. bar’s opinion goes too far to limit attorneys, social media posts can also create sticky client relations issues (even if the posts do not create a traditional conflict of interest). Before creating any unintended consequences, attorneys can consider the following three tips.
Avoid Taking Sides
Social media is generally not a place for balanced, well-reasoned assessments of issues but is used by many to express visceral reactions to news events. While attorneys may feel the urge to immediately share their thoughts with the world, they do so at their own risk.
For example, if the U.S. Supreme Court agrees to hear a controversial case, an attorney may be inclined to immediately offer her or his opinion as to the proper result. Even if the attorney’s posting does not create an actual conflict, a client certainly may be less than pleased to see its law firm advocating for a position if that position stands to harm the client’s interests.
While commenting on ongoing cases is inherently risky, attorneys who feel compelled to do so can limit their risks by avoiding taking a definite stance and instead presenting a balanced analysis. That could help avoid creating any potential positional conflict with the interests of a client of the attorney and her or his law firm.
In practice, attorneys generally communicate through carefully crafted correspondence and briefs that are consistent with the level of decorum expected of attorneys. Social media, on the other hand, has no such decorum. Attorneys nonetheless should not be deluded into believing that social media is a free zone for unprofessional conduct.
A good rule of thumb is to ask whether the comment made on social media would be appropriate if standing outside a courtroom or at a dinner party. Many times, attorneys post comments on social media that they would never say in a face-to-face conversation, much less one with a client.
Comments on social media are in some respects worse than face-to-face conversations, as they are generally broadcast to the world and preserved for posterity. Further, courts and bars are increasingly recognizing that online content is subject to the same bar rules as traditional legal correspondence.
Think Before Posting
The most obvious tip can often be the hardest in practice. Before posting on any substantive issue (e.g., legal or political issues), attorneys should stop and think practically about the post and the possible response from their firms, clients, and potential clients. Too often, attorneys let their emotions take over and fire off a post without giving sufficient consideration as to the implications.
As a precaution, it may be a good idea to first run the posting by a colleague or firm leadership to ensure that it does not create any unintended conflicts or client relations issues. While social media can be a valuable marketing tool, careless attorneys can undermine the benefits of social media in the time it takes to tweet.
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