3. Avoid making prohibited solicitations. Solicitations by a lawyer offering to provide legal services and motivated by pecuniary gain are restricted under RPC 7.3 and equivalent state ethics rules. Some state analogues recognize limited exceptions for communications to other lawyers, family members, close personal friends, persons with whom the lawyer has a prior professional relationship, and/or persons 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.
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 (RPC 1.6), former clients (RPC 1.9), and prospective clients (RPC 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.
5. Do not assume you can “friend” judges. Different jurisdictions have adopted different standards for judges. ABA Formal Opinion 462 concluded that a judge may participate in online social networking but in doing so must comply with the Code of Judicial Conduct and consider his or her ethical obligations on a case-by-case (and connection-by-connection) basis. Several states have adopted similar views, including Connecticut, Kentucky, Maryland, New York, Ohio, South Carolina, and Tennessee.
In contrast, states such as California, Florida, Massachusetts, and Oklahoma have adopted a more restrictive view. Florida Ethics Opinion 2009-20, for example, concluded that a judge cannot friend lawyers on Facebook who may appear before the judge because doing so suggests that the lawyer is in a special position to influence the judge.
6. Avoid communications with represented parties. Under RPC 4.2 and equivalent state ethics rules, a lawyer is forbidden from communicating with a person whom the lawyer knows to be represented by counsel without first obtaining consent from the represented person’s lawyer. This prohibition extends to any agents who may act on the lawyer’s behalf. These bright-line restrictions effectively prohibit lawyers and their agents from engaging in social media communications with persons whom the lawyer knows to be represented by counsel. This means that a lawyer may not send Facebook friend requests or LinkedIn invitations to opposing parties known to be represented by counsel in order to gain access to those parties’ private social media content. On the other hand, viewing publicly accessible social media content that does not precipitate communication with a represented party is generally considered fair game.
7. Be cautious when communicating with unrepresented third parties. Underlying RPC 3.4 (Fairness to Opposing Party and Counsel), 4.1 (Truthfulness in Statements to Others), 4.3 (Dealing with Unrepresented Person), 4.4 (Respect for Rights of Third Persons), 8.4 (Misconduct), and similar state ethics rules is concern for protecting third parties against abusive lawyer conduct. Issues commonly arise when lawyers use social media to obtain information from third-party witnesses that may be useful in a litigation matter. As with represented parties, publicly viewable social media content is generally fair game. If, however, the information sought is safely nestled behind the third party’s privacy settings, ethical constraints may limit the lawyer’s options for obtaining it.
Of the jurisdictions that have addressed this issue, the consensus appears to be that a lawyer may not attempt to gain access to non-public social media content by using subterfuge, trickery, dishonesty, deception, pretext, false pretenses, or an alias.
8. Beware of inadvertently creating attorney-client relationships. An attorney-client relationship may be formed through electronic communications, including social media communications. ABA Formal Opinion 10-457 recognized that by enabling communications between prospective clients and lawyers, websites may give rise to inadvertent lawyer-client relationships and trigger ethical obligations to prospective clients under RPC 1.18. The interactive nature of social media creates a real risk of inadvertently forming attorney-client relationships with nonlawyers.
The use of appropriate disclaimers in a lawyer’s or a law firm’s social media profile or in connection with specific posts may help avoid inadvertently creating attorney-client relationships, so long as the lawyer’s or law firm’s online conduct is consistent with the disclaimer.
9. Beware of potential unauthorized practice violations. A public social media post knows no geographic boundaries. If legal professionals elect to interact with nonlawyer social media users, then they must be mindful that their activities may be subject not only to the ethics rules of the jurisdictions in which they are licensed, but also potentially the ethics rules in any jurisdiction where the recipient of any communication is located. Under RPC 5.5 and similar state ethics rules, lawyers are not permitted to practice law in jurisdictions where they are not admitted to practice. Moreover, under RPC 8.5 and analogous state rules, a lawyer may be disciplined in any jurisdiction where he or she is admitted to practice or in any jurisdiction where he or she provides or offers to provide legal services. It is prudent for lawyers to avoid online activities that could be construed as the unauthorized practice of law in any jurisdiction where the lawyer is not admitted to practice.
10. Tread cautiously with testimonials, endorsements, and ratings. Many social media platforms heavily promote the use of testimonials, endorsements, and ratings. These features are typically designed by social media companies with one-size-fits-all functionality and little or no attention given to variations in state ethics rules. Some jurisdictions prohibit or severely restrict lawyers’ use of testimonials and endorsements. They may also require testimonials and endorsements to be accompanied by specific disclaimers. Lawyers must pay careful attention to whether their use of any endorsement, testimonial, or rating features of a social networking site complies with the ethics rules that apply in the state(s) where they are licensed. If not, then the lawyer may have no choice but to remove that content from his or her profile.
ABA Business Law Section
This article is an abridged and edited version of one that originally appeared in the online magazine Business Law Today, January 2014.
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