YourABA May 2013 Masthead

With social media, restraint is recommended

As more of the Internet becomes social, members of many professions find themselves logging on to Twitter, Facebook, LinkedIn and Pinterest to look for business opportunities, collect intelligence on competitors and share information about their business. But some legal ramifications can make certain online interactions tricky for lawyers who want to avoid gray areas in the practice of law.

As discussed in the ABA CLE “Social Media and Local Governments,” many recent examples have shown that the First Amendment, attorney-client privilege and deceitful conduct can become factors when using social media to discuss or pursue legal cases. Julie Tappendorf, partner at the law firm Ancel Glick and co-author of the new book Social Media and Local Governments: Navigating the New Public Square, recommends carefulness and restraint when implementing social media to build your practice.

Another action
to avoid is inadvertently building an attorney-client relationship through social-networking tools.

One example was a case of an online discussion about a settlement reached in a class action suit against McDonald’s. The settlement resulted in donations to charities and the payment of attorney fees, but only a small amount of financial compensation to the named plaintiff. An attorney in the area, who was not involved in the class action against McDonald’s, posted negative comments about the outcome of the settlement on a community Facebook page. A judge later decided that the attorney had to take down the Facebook post and filed an injunction for his actions.

Tappendorf believes this will be appealed due to the First Amendment. “The ACLU has come out pretty strongly that they think that the attorney’s speech was protected by the First Amendment,” Tappendorf said. This case brought up several questions about whether attorneys can openly comment about a case of public interest as a private citizen, or if you are stepping into a sensitive legal zone where prior restraint is involved. To exercise caution, Tappendorf recommends checking with state bar ethical opinions or court legal opinions on similar matters to stay within the lines at all times.

Another action to avoid is inadvertently building an attorney-client relationship through social-networking tools. It is critical to be careful of too much interaction and communication. To avoid a potential complication, Tappendorf recommends limiting reader feedback, keeping information shared as general as possible, as well as using a disclaimer. These social-networking sites are considered communications and advertising, Tappendorf said, and are subject to state legal advertising guidelines that often include disclosures.

“Keep information very general and not providing advice or answering legal questions back and forth so that social media doesn’t create a relationship you have no intention of creating,” Tappendorf said.

When using social media, you should also keep in mind the anonymity aspect of the Internet. Lawyers could be communicating with adverse parties and not know it. “We have to be aware that people don’t always use their real names,” Tappendorf warned. Lawyers are also advised to avoid providing legal advice in a state where the lawyer is not licensed, which is hard to determine when it is happening online.

While all lawyers should know this inherently, making false or misleading statements or engaging in deceitful conduct in the virtual, social world is to be discouraged just as much as it is in the real world. A recent Philadelphia Bar Association decision found that a lawyer who used a third party to “friend” a witness on Facebook was categorized as obtaining information in a deceitful manner because the friend request was simply to gain access to the person’s personal page. A recent bar opinion in New York said that lawyers cannot communicate with jurors over social media, either by their actions or through an acquaintance.

False statements also include declaring a specialization. Tappendorf said that lawyers “can’t say you are specialized unless you are certified.” So when completing a LinkedIn profile, she advised lawyers to ensure that they are not violating local regulations by saying they specialize in an area of the law. Rather than use the word “specialize,” she recommended that lawyers use “focus” to describe a particular area of interest for their practice.

Moving forward, Tappendorf recommends caution and trusting your instincts when embracing social media and its communication abilities.

“We need to be cognizant that this is an evolving area,” Tappendorf said.

The CLE was sponsored by the Section of State and Local Government Law, Government and Public Sector Lawyers Division and the Center for Professional Development.

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