Law firms devote significant resources to identifying and resolving conflicts of interest. Increasingly, attorneys also work on their professional social media presence to help promote their practices, connect with others in the field, and participate in discourse about their area of expertise. However, there can be risks for attorneys when using social media in their personal capacity that can create potential conflicts of interest, separate and sometimes more complicated than traditional issues.
An ethics opinion from the District of Columbia bar, which received significant attention, posited 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).
The risk, of course, is that it can be difficult for members of the public to distinguish between when an attorney is acting in a solely “personal” capacity and when that attorney is acting as an attorney. Even if the attorney tries to stay anonymous or just uses their name without identifying their profession or firm, it often is not difficult for members of the public to identify the attorney and the attorney’s firm. 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.
While the Texas Disciplinary Rules of Professional Conduct, in the comments to Rule 1.06, recognize this type of positional conflict (including that it may be a conflict for an attorney to simultaneously take opposite legal positions in cases on appeal), they do not specifically 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 5 to Rule 1.06, which provides that a lawyer’s “own interests should not be permitted to have adverse effect on [the] representation of a client.” Interpreting a similar rule, the District of Columbia Bar 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 in limiting attorneys, social media posts can also create sticky client-relation issues (even if the posts do not create a traditional conflict of interest) and, as a result, headaches for attorneys. 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. Thus, if attorneys feel the need to comment on a pressing legal issue of the day, it may behoove the attorney to write about the potential legal issues, precedent, and possible outcomes, instead of taking a position on which party or side “should prevail.” This could help avoid the possibility that the attorney—or the attorney’s firm—is viewed as taking a position that could be contrary to the interests of the firm’s clients.
Take a Breath
The most obvious tip can often be the hardest in practice. Before posting on any substantive issue (e.g., legal or political issues), attorneys can stop and think practically about the post and the possible response from their firms, clients and potential clients. The risk comes when 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 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.
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 little, if any, such decorum. Most attorneys recognize, however, that social media is not a free zone for unprofessional conduct.
As recognized in Opinion 671 from the Professional Ethics Committee, if an attorney cannot do something in person under the ethics rules, the attorney generally cannot do it online (or designate a deputy to do the same online).
Some attorneys in considering whether to post will ask whether the social media comment would be appropriate if standing outside a courtroom or at a dinner party. Comments on social media are in some respects more risky 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.
Shari L. Klevens is a partner at Dentons and serves on the firm’s U.S. board of directors. She represents and advises lawyers and insurers on complex claims and is co-chairwoman of Dentons’ global insurance sector team. Alanna Clair is a partner at Dentons and focuses on professional liability defense. Klevens and Clair are co-authors of “The Lawyer’s Handbook: Ethics Compliance and Claim Avoidance.”