YourABA: March 2014
YourABA March 2014 Masthead

4 tips for avoiding ethical lapses when using social media

You may be among the thousands of legal professionals flocking to social media sites such as LinkedIn (see also First Focus), Facebook or Twitter to expand your professional presence in the digital frontier. If so, have you paused to consider how the ethics rules apply to your online activities?

Christina Vassiliou Harvey, an associate at Lomurro Davison Eastman & Muñoz, Mac R. McCoy, a shareholder at Carlton Fields Jorden Burt, and Brook Sneath, a business development and marketing coordinator at Phelps Dunbar LLP, have gathered these tips for avoiding ethical lapses while using social media. They primarily cite the ABA Model Rules of Professional Conduct and select ethics opinions from various states. In addition to considering the general information in this article, you should carefully review the ethics rules and opinions adopted by the specific jurisdictions in which you are licensed and in which your law firm maintains an office.

These tips come from a recent article in Business Law Today, a Web publication of the ABA Business Law Section.

  1. Social media profiles and posts may constitute legal advertising.

    In many jurisdictions, lawyer and law firm websites are deemed to be advertisements. Because social media profiles (including blogs, Facebook pages and LinkedIn profiles) are by their nature websites, they may also constitute advertisements.

    For example, the Florida Supreme Court recently overhauled that state’s advertising rules to make it clear that lawyer and law firm websites (including social networking and video sharing sites) are subject to many of the restrictions applicable to other traditional forms of lawyer advertising. Similarly, California Ethics Opinion 2012-186 concluded that the lawyer advertising rules in that state applied to social media posts, depending on the nature of the posted statement or content.

  2. Avoid making false or misleading statements.

    The ethical prohibition against making false or misleading statements pervades many of the ABA Model Rules, including Rules 4.1 (Truthfulness in Statements to Others), 4.3 (Dealing with Unrepresented Person), 4.4 (Respect for Rights of Third Persons), 7.1 (Communication Concerning a Lawyer’s Services), 7.4 (Communication of Fields of Practice and Specialization) and 8.4 (Misconduct), as well as the analogous state ethics rules. ABA Formal Opinion 10-457 concluded that lawyer websites must comply with the ABA Model Rules that prohibit false or misleading statements. The same obligation extends to social media websites.

    South Carolina Ethics Opinion 12-03
    concluded that lawyers may not participate in websites designed to allow nonlawyer users to post legal questions where the website describes the attorneys answering those questions as “experts.” Similarly, New York State Ethics Opinion 972 concluded that a lawyer may not list his or her practice areas under the heading “specialties” on a social media site unless the lawyer is appropriately certified as a specialist — and law firms may not do so at all.

    Although most legal professionals are already appropriately sensitive to these restrictions, some social media activities may nevertheless give rise to unanticipated ethical lapses. A common example occurs when a lawyer creates a social media account and completes a profile without realizing that the social media platform will brand the lawyer to the public as an “expert” or a “specialist” or as having legal “expertise” or “specialties.” Under Model Rule 7.4 and equivalent state ethics rules, lawyers are generally prohibited from claiming to be a “specialist” in the law. The ethics rules in many states extend this restriction to use of terms like “expert” or “expertise.” Nevertheless, many professional social networking platforms (e.g., LinkedIn and Avvo) may invite lawyers to identify “specialties” or “expertise” in their profiles, or the sites may by default identify and actively promote a lawyer to other users as an “expert” or “specialist” in the law. This is problematic because the lawyer completing his or her profile cannot always remove or avoid these labels.

  3. Avoid making prohibited solicitations.

    Solicitations by a lawyer or a law firm offering to provide legal services and motivated by pecuniary gain are restricted under Model Rule 7.3 and equivalent state ethics rules. Some, but not all, state analogues recognize limited exceptions for communications to other lawyers, family members, close personal friends, people with whom the lawyer has a prior professional relationship and/or people who have specifically requested information from the lawyer.

    By its very design, social media allows users to communicate with each other or the public at-large through one or more means. The rules prohibiting solicitations force legal professionals to evaluate — before sending any public or private social media communication to any other user — whom the intended recipient is and why the lawyer or law firm is communicating with that particular person. For example, a Facebook “friend request” or LinkedIn “invitation” that offers to provide legal services to a nonlawyer with whom the sending lawyer does not have an existing relationship may very well rise to the level of a prohibited solicitation.

    Legal professionals may also unintentionally send prohibited solicitations merely by using certain automatic features of some social media sites that are designed to facilitate convenient connections between users. For instance, LinkedIn provides an option to import email address books to LinkedIn for purposes of sending automatic or batch invitations. This may seem like an efficient option to minimize the time required to locate and connect with everyone you know on LinkedIn. However, sending automatic or batch invitations to everyone identified in your email address book could result in networking invitations being sent to people who are not lawyers, family members, close personal friends, current or former clients, or others with whom a lawyer may ethically communicate. Moreover, if these recipients do not accept the initial networking invitation, LinkedIn will automatically send two follow-up reminders unless the initial invitation is affirmatively withdrawn. Each such reminder would conceivably constitute a separate violation of the rules prohibiting solicitations.

  4. Do not disclose privileged or confidential information.

    Social media also creates a potential risk of disclosing (inadvertently or otherwise) privileged or confidential information, including the identities of current or former clients. The duty to protect privileged and confidential client information extends to current clients (Rule 1.6), former clients (Rule 1.9) and prospective clients (Rule 1.18). Consistent with these rules, ABA Formal Opinion 10-457 provides that lawyers must obtain client consent before posting information about clients on websites. In a content-driven environment like social media where users are accustomed to casually commenting on day-to-day activities, including work-related activities, lawyers must be especially careful to avoid posting any information that could conceivably violate confidentiality obligations. This includes the casual use of geo-tagging in social media posts or photos that may inadvertently reveal your geographic location when traveling on confidential client business.

    There are a few examples of lawyers who found themselves in ethical crosshairs after posting client information online. For example, in In re Skinner, 740 S.E.2d 171 (Ga. 2013), the Georgia Supreme Court rejected a petition for voluntary reprimand (the mildest form of public discipline permitted under that state’s rules) where a lawyer admitted to disclosing information online about a former client in response to negative reviews on consumer websites. In a more extreme example, the Illinois Supreme Court in In re Peshek, M.R. 23794 (Ill. May 18, 2010) suspended an assistant public defender from practice for 60 days for, among other things, blogging about clients and implying in at least one such post that a client may have committed perjury. The Wisconsin Supreme Court imposed reciprocal discipline on the same attorney for the same misconduct in In re Disciplinary Proceedings Against Peshek, 798 N.W.2d 879 (Wis. 2011).

    Interestingly, the Virginia Supreme Court held in Hunter v. Virginia State Bar, 744 S.E.2d 611 (Va. 2013) that confidentiality obligations have limits when weighed against a lawyer’s First Amendment protections. Specifically, the court held that although a lawyer’s blog posts were commercial speech, the Virginia State Bar could not prohibit the lawyer from posting nonprivileged information about clients and former clients without the clients’ consent where (1) the information related to closed cases and (2) the information was publicly available from court records and, therefore, the lawyer was free, like any other citizen, to disclose what actually transpired in the courtroom.

For six additional tips, see the full article from Business Law Today.

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