Ethical and Professional Responsibilities
The first lesson is to understand the ethical and professional responsibilities you might have as a lawyer on social media in your particular jurisdiction. All normal confidentiality requirements apply to things you write online. You shouldn’t write publicly about your clients or cases unless the client is fully informed and consents. Some states even have ethical rules that specifically limit social media commentary by lawyers. Be careful about triggering your state’s rules about attorney advertising with your social media presence. Take extra steps during voir dire and throughout a jury trial to avoid accidentally contacting jurors. Don’t use social media to attack your opponents or judge.
Assuming you are already following those ethical rules, though, that still leaves the difficult question of how you want your social media account perceived. Or, to use one of the worst phrases in the English language, what you want your brand to be. The best image for a working litigator using social media under the litigator’s own name is that of a sober, knowledgeable lawyer with good judgment. Not without passion or fire, but above all a smart person who can be trusted with important legal issues. If that’s also your goal, the ideas I’ve gathered over two decades of being very online as a lawyer and law student should help you craft the public-facing presence you’re looking for. And, perhaps even more important, these ideas may help you avoid presenting yourself the wrong way online.
Pick a topic (or a few!). Even generalist lawyers are not equally adept at all things. The strongest lawyers I know are happy to refer work to specialist colleagues who can best help the client. Clients remember your professionalism and will come back to you when they have the right case. The same rule holds true when using social media. If you are using social media in your professional capacity and under your real name, one important goal could be to showcase your expertise to your colleagues, to your potential clients, or to the world at large. If so, then that expertise is what you should initially talk about on social media—incessantly, repeatedly, and nearly to the exclusion of all other discussion.
This laser focus helps showcase your expertise to colleagues and potential clients. A stray tweet about your deep antitrust mastery might be ignored, but daily tweets about interesting aspects of competition law in granular detail will eventually seep into social media’s hive consciousness. People will eventually think of you as the “antitrust person” they turn to when something important is happening.
Focusing on what you know also helps make sure that you avoid saying online something ill advised that brings you into public disrepute. The lawyer who comments confidently on everything is the most likely to know the least about anything in particular. These jack-of-all-trades commentators are the ones who are most likely to make a serious mistake that leaves colleagues, judges, and potential clients wondering about the lawyer’s judgment. All of this suggests you should at least start by writing about what you know before branching out into topics you’re less sure about.
Take my own account as an example. The core of my Twitter account, @RMFifthCircuit, is the decisions and oral arguments of the U.S. Court of Appeals for the Fifth Circuit. Since I began tweeting in earnest in 2014, I have tweeted more than 50,000 times and accumulated about 60,000 followers all over the world. I read every published civil decision of the Fifth Circuit. I read the court’s non-dispositive orders. I listen to oral arguments. I present all of those to the world in what I hope is a fair way. Does that mean I do not discuss other matters? No. I use Twitter to write about sports, food, and history, among other things. As I’ve become more comfortable with Twitter, I’ve been able to push beyond the Fifth Circuit to other topics of which I have substantial knowledge, such as federal litigation in general (I enjoy combining my love for professional football and procedural knowledge to cover sports cases) and corporate law (such as the Twitter v. Elon Musk litigation).
But I try to keep my social media presence focused on the things I know the most about. After all, who cares what I think about the geopolitical problem of the day? There are experts much better suited to those topics than I am. How to get a second extension of time in the Fifth Circuit when the court is already impatient? I’m your huckleberry. Find the right topic for you, focus on that topic, and keep focusing on it until you get traction.
Understand that your audience is the world. Social media allow writers sometimes to believe that they are writing for themselves alone. “I only have two hundred followers—who could possibly see this tweet?” This is incorrect. In fact, many judges use Twitter and other forms of social media, usually through anonymous accounts. One judge told me, “Who doesn’t want to read people’s reviews of their work?” If you write about a court and its decisions, you have to assume that judges and their clerks will see your commentary. Clients and other important stakeholders are also all over social media, whether using their own names or “lurking” anonymously. How will they find your tweets? The algorithms that rule social media will make sure that the relevant people see your tweets, even if they don’t follow you.
To be clear, none of this means that you should always pull your punches. If you’re writing about the Supreme Court, the fact that Justice Elena Kagan has a secret Twitter account, as she does, should not necessarily mean you can’t criticize her or the Court. Rather, the point is that your choice to make such criticisms must be intentional. Do not accidentally offend a client, or judge, or other important potential contact because you did not realize they might be reading. Everyone is reading, and you should assume everything you say online about someone will eventually end up in that person’s inbox. I would never tweet something about courts I practice before that I would not say at a continuing legal education class, with the judges themselves in attendance. Disagreeing with judges and courts is one thing, but unintentionally antagonizing them is another. Holding that line, even in social media, is crucial to success.
Let your personality show (some). Some lawyer social media accounts are, well, boring. They broadcast the lawyer’s professional work or law firm memos or litigation successes without any hint of the person who lies beneath the advocate. There’s nothing inherently wrong with that kind of social media post. It’s very unlikely to cause harm. But it is also quite unlikely to do the writer any good. Plain-vanilla social media accounts like those will float along without getting much traction in the larger world.
Broader success on social media, by contrast, thrives off the author’s personality. Many lawyers write about sports or their families or their other hobbies and passions. People share wonderful and even painful moments in their lives. I write occasionally about food and cookery. I have been an avid home cook for 20 years, and I love using social media to share that experience with my readers. I post the weekly menus I cook for my family. I share pictures of great successes in the kitchen—and even some of my worst setbacks. The feedback I get from lawyers and even judges is nearly always positive. It’s entirely appropriate to let out some of what makes you tick. It will make your social media experience both more fun and more fruitful. Presenting yourself as an interesting person even outside the courtroom is a good thing for your social media experience.
But be careful to set limits beforehand. Oversharing online both threatens your privacy and risks ruining the careful work you’ve done in developing your expertise. One red line many lawyers use online is to keep pictures of their children out of social media, to protect them from prying eyes. Similarly, it can make sense to leave some ambiguity over where you might be traveling for work or pleasure. Certainly, lawyers should carefully assess which of their interests are appropriate to share with thousands or millions of people. That is a judgment call each lawyer should make, but it’s important that a decision is made and the choice not left to inertia or whim.
Don’t lose your temper. There is nothing worse online than losing your temper and saying something you will regret the next day. Social media is sometimes forever—you can’t always count on just deleting your intemperate words and moving along. Bad tweets might be saved by outraged readers on their own devices, or a particularly ill-considered tweet might cause an immediate firestorm no one forgets. Just as in real life, people make judgments about you quickly. You may not have another chance to make a good impression.
So, when someone gets your goat online, take a deep breath and mute or block the user. Does that mean you can’t take strong positions about important topics for fear of seeming angry? No. But when you do so, make that choice deliberately and with a cool head, not in a fit of rage. As part of covering the Fifth Circuit’s docket, I write about prison misconduct and qualified immunity issues. My readers are aware that I have passionate views on those topics and that I am often writing to criticize the status quo. But I try to present those arguments in a calm manner by pointing to the facts that support my arguments, not castigating the judges or the litigants.
Some lawyers push back on this advice. Why shouldn’t a lawyer be a passionate online advocate? I confess perhaps my advice is too conservative—that a sharper tone can be better advocacy. But to me, the most effective online advocates successfully separate their passion from sheer anger. It’s also easier to increase your writing’s pitch than to tone it down once the precedent has been set.
Know when to retreat. What happens if you slip? What, for example, if you lose your temper and engage in a fight online? What if a bad tweet goes viral, and you find yourself on the receiving end of sharp criticism? Given today’s online culture, one temptation might be to double down and insist you’re right, that the tweet was fine, that your views are perfect, and that all your interlocutors are out to get you. That might all even be true. But in most cases where an honest mistake is made, the best plan is to admit the mistake, apologize, and maybe even take a break from social media. The world moves fast these days, and a poorly thought-out but innocent tweet or video will disappear from consciousness sooner than you might imagine.
Weigh the costs and benefits. For some, social media are a toxic environment. For one thing, men are treated better online than women. Some minority groups also face extraordinary harassment. There is not much that can be done on an individual level to address those issues, other than blocking, muting, and reporting the worst offenders. For some, the abuse they suffer online isn’t worth the candle. I wish it were otherwise, and everyone online should help make the environment better.
But even putting those systemic issues to one side, some lawyers are not suited for the social media rough-and-tumble. Their skin is too thin, and so normal internet criticism feels like a personal attack. Or they can’t help but try to persuade other people on Twitter, and therefore end up in vituperative disagreements. Perhaps they flit from political dispute to political dispute, dive into topics they don’t really understand, and make intemperate comments about cases or issues that skirt the ethical rules. If you find that you are one of those people, the best way to present yourself on social media might be to leave. The work of a lifetime should not be thrown overboard just because you’d like to participate in an online forum. For some people, the social media world is nothing but a stress and an extraordinary drain on productivity. It’s important to consider the possibility that the best choice might be to avoid social media.
Make social media your own. Social media are an incredibly powerful tool for networking and growing your practice. Like many other beneficial tools, social media can also be dangerous when used incorrectly. The key is to use social media intentionally. Ideally, every tweet and interaction should be filtered through that professional lens. To be sure, this buttoned-up approach might be less fun in the short term than letting your views fly. But over time, being able to create a vibrant online community for yourself will more than likely pay back that forbearance in spades. Moreover, it’s easy to abandon this advice and take a more freewheeling path once you’ve gained enough experience presenting yourself online. What’s harder is dialing back an ill-advised foray into social media. If you proceed carefully and deliberately, social media can be a wonderful addition to your professional life as a litigator.