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 was to 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 — considered 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.
Meanwhile, staying out of trouble when using social media is not difficult, provided you are aware of the dangers and use some common sense.
REMEMBER: 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 December 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.”
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.
AVOID INADVERTENT 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.
A lawyer can participate in these forums but also disavow any “reasonable expectation” by expressly using cautionary language and disclaimers in an answer. Keep your answers generic, avoid addressing highly specific facts and expressly state that your answer should not be considered legal advice.
DO NOT SOLICIT
Ethical rules prohibit lawyers from soliciting potential clients for pecuniary gain. Fear of solicitation keeps lawyers off of Twitter, Facebook and other social networks. Such fear is unfounded.
No question, a lawyer could solicit through any of these media — but the lawyer would have to be trying very hard to do so. For it to be a solicitation, it has to be targeted at a specific individual and intended to be perceived as an offer to provide legal services. Merely engaging with the public in an online forum of any kind is not solicitation.
STEER CLEAR OF UNAUTHORIZED PRACTICE
In my opinion, the current rules against unauthorized and multijurisdictional practice are archaic and senseless in today’s highly connected world. But they remain the rules. If you are admitted only in one state, you cannot give legal advice in another state.
To my knowledge, there has never been an ethics complaint against a lawyer for answering questions online in a Q&A forum or for participating in a discussion on Twitter or elsewhere online.
Even so, lawyers are well advised to refrain from giving fact-specific advice online — and to include disclaimers in any answers they provide to consumer questions. There is a big difference between educating about law and advising about law.
UNDERSTAND THE RULES ON RECOMMENDATIONS
ABA Model Rule 7.2 says, “A lawyer shall not give anything of value to a person for recommending the lawyer’s services.” Does this mean you cannot provide an endorsement of a colleague on sites such as LinkedIn or Avvo? Absolutely not, provided nothing of value is exchanged. But can you promise to provide an endorsement if the other attorney promises to endorse you in return? That quid pro quo could be seen as an exchange of value.
The ABA 20/20 Commission provided a very different example. One law firm distributed free T-shirts emblazoned with its name. It then offered a chance to win a prize to anyone who posted a photo on Facebook wearing the firm’s shirt. “The firm arguably gave people something ‘of value’ (the shirt and the opportunity to win a prize) for ‘recommending the lawyer’s services’ and thus might be viewed as running afoul of the existing version of Rule 7.2,” the commission wrote.
REMEMBER THE RULE ON TRIAL PUBLICITY
ABA Model Rule 3.6 limits what a lawyer can say about his or her own cases. The rule says that you cannot say anything that “will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.”
Consider Florida lawyer Mark O’Mara, who recently launched a social media campaign on behalf of his client, George Zimmerman, a neighborhood-watch volunteer accused of killing teenager Trayvon Martin. O’Mara’s efforts included a blog, Twitter account and Facebook page. Was that not meant to somehow “prejudice” the matter? This is a very gray area, but one lawyers should be mindful of when they blog or tweet about their cases — and another good reason not to blog about your own cases in the first place.
MAKE NO FALSE OR MISLEADING STATEMENTS
If the profession were to have only one ethical rule, it would be this: Do not misrepresent yourself, your services or your capabilities. This is embodied in ABA Model Rule 7.1, which prohibits false or misleading communications. Social media offer a powerful form of marketing, especially for young and less-experienced lawyers.
In the enthusiasm to build a practice, lawyers should be cautious not to overstate their capabilities and experience.
BECOME COMPETENT IN TECHNOLOGY AND SOCIAL MEDIA
You will not find anything in the ABA Model Rules or your own state’s ethical rules about competence in technology. Yet it only makes sense: The best way to stay out of trouble with any medium is to understand how it works. If you are uneducated about technology and social media, you are more susceptible to tripping up.
Although the Model Rules are silent on this, the ABA 20/20 Commission has proposed to change that. The commission has suggested that the comment to Model Rule 1.1, on competence, be amended to require that lawyers not only maintain competence in law and practice, but also in “the benefits and risks associated with technology.”
USE COMMON SENSE
To me, it all comes back to this. Exercise common sense in your use of social media and you are unlikely to get into trouble.
Think carefully about that blog post before you publish. Consider all 140 of those characters before you send out a tweet.
Always be mindful of that now-old saying, “If you wouldn’t want to read it on the front page of The New York Times , don’t post it online.”
To learn more about ethics and social media, a good place to start is the website of the ABA Commission on Ethics 20/20, www.americanbar.org/ethics2020. It has a library of reports, issue papers, meeting minutes and other documents compiled during the commission’s three years of study.
If you want to get right to the meat of the issues, read the reports the commission filed with the ABA House of Delegates that were under consideration at the August meeting. There are six reports plus an overview. But the two that most directly relate to social media are the reports on technology and confidentiality, and technology and client development. •