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Facebook Chronicles: Tests, Allies, and Enemies

by Barb Cashman on May 30, 2012

In the last post we crossed the threshold, which means we have finally committed to “the journey.”  Now we face certain obstacles, remember Homer’s “Odyssey”– or maybe you’re thinking of the more current rendition of it,  “O Brother, Where Art Thou?”

So – away we go!  Let’s look at some of our “tests” first.  Unlike some aspects of the hero’s journey, these tests for practicing lawyers are something we always have to have under active consideration.  Yep, I’m talking about the Colorado Rules of Professional Conduct.  Actually, I’ll be referring to the Model Rules of Professional Conduct for this discussion.  These apply to all communications to the public, whether they are made on a website, spoken comments at a cocktail party, written in a blog post, a tweet, or posted on Facebook.  Here’s my “top 5”:

Confidentiality – Rule 1.6

Rule of thumb: Don’t post anything about your clients or your cases on Facebook, Twitter, or your blog.  Lawyers have done this – in Illinois and Florida. Some of our colleagues have gotten into some trouble for this. And yes, courts already permit evidence from social networking sites to be admitted in court for criminal and domestic relations, and I’m certain lots of other types of proceedings as well.  Remember the lawyer’s duty to Google? (Oops – forgot, that was a book review I wrote in The Colorado Lawyer – not a blog post!)  Avoid discussion of ongoing client matters, except with those who are involved in or instrumental to the representation.  If you post details about how your current case is going, or let off steam about clients (or worse yet, how a judge is presiding over a case of yours in an online forum) you may have your words come back to haunt you.  You wouldn’t discuss your case in a bar with strangers, and you shouldn’t discuss it on a social network.

Solicitation Rules – Social Networking as “Advertising”

This will be interesting to watch develop.  “Social media law” is developing. In a federal court case in Virginia, the judge granted a motion for summary judgment on plaintiffs’ (two sheriff’s employees) who had “liked” the opposing sheriff candidate on that person’s fan page.  The court held there was no First Amendment protection because a “like” on a Facebook page was insufficient speech to warrant constitutional protection, as it is not a substantive statement. This field of law will be developing, so hang on for lots of different types of rulings in the future.

These vary from state to state, but typically require face-to-face contact for this banned activity. Thus online activities like “connecting,” “liking,” and “friending” are probably fine.

But wait a second Barb, what about LinkedIn recommendations (or other websites)?  If a lawyer has a LinkedIn profile and receives a recommendation from a former client, is the lawyer responsible for the content of that recommendation?  The lawyer is responsible for the recommendation since recommendations are “communications about the lawyer’s services.”  This runs from Martindale-Hubbell and Avvo “rating” services to more of the social media many of us use, such as LinkedIn. A LinkedIn recommendation from another person (colleague, client, etc.) requires approval from the owner of the profile prior to the posting of the endorsement, so the profile owner would have the opportunity to edit for appropriateness of content. Be especially wary of “comparative” testimonials or specific results obtained. This is advertising.

Inadvertent Creation of Attorney–Client Relationship

If an attorney answers a question online as an “expert” and gives specific advice, no amount of disclaimer will protect the attorney from potential problems with 7.4(b) (attorney as “expert” is violation) or attempts to limit liability in violation of 7.1.  Read this recent South Carolina Ethics Advisory Opinion about answering online questions.

Just like everywhere else on the Internet, be careful to offer only legal information of general application about a particular subject or issue or for educational purposes so that it is clear to the inquiring person that you are not giving them legal advice. Appropriate disclaimers may not go far enough, so be vigilant.

Opposition Research (pretexting), Judges on Facebook, and Government Lawyers

“Pretexting,” or using a pretext to obtain personal information about someone on a social networking site, is generally barred.  Check out the New York State and Philadelphia Bar Association ethics opinions about the use of social media for investigative purposes, and this opinion from Texas about pretexting, and other activities.

What about judges and social media?   Yes, judges have also been hurt on this playing field – in North Carolina and Florida judges are barred from adding lawyers who may appear in front of them as “friends.”

Last month a federal  prosecutor in New Orleans resigned after “anonymously” posting some vitriol online that came back to him.

What’s Next?

The ABA Commission on Ethics 20/20 is now looking at changes to the RPC that technology and globalization have necessitated.  Of particular relevance here is the additional language relating to electronic communications under Rule 1.18: Duties to Prospective Client.  Read the Resolution here. If you want an introduction and overview of the proposals, click here.

Perhaps you’re wondering now about the enemies and allies portion of the post?   OK – here goes.  Who is using social media?  Twenty-nine of the AMLAW 100 law firms have Twitter accounts, and 12 have Facebook pages. I don’t have numbers on solo and small firm attorneys, but since solos are their own brand personified, Facebook and other social media can provide them, just like the “little guys” in other business contexts of Facebook,  a more level “playing field.” It stands to reason their numbers may be proportionally bigger.

So, if you’re wondering what the “take away” is here, I would say …  you gotta look sharp! (with respects to Joe Jackson).

Lawyers who participate in online social networking should be careful anytime a person asks what the lawyer thinks about a specific matter – this applies whether it is an inquiry from your contact page on your website, in a Q&A forum, your blog post, or in a social media context.  If an attorney gives a fact‐specific response to a question, it could be interpreted as legal advice by the person to whom it was directed.  Consequently, an unintended attorney‐client relationship may be created.  Once that attorney‐client relationship is created, a number of ethics rules will apply as a result.

It’s not always easy to determine when a lawyer’s use of social media will violate ethics rules.  Part of the problem is that the rules are “rules of reason,” so they don’t specifically address social media.  It’s not always appropriate to take a message out of the social media context in which it was uttered and replace it with a cocktail party context, for example.  The proposed changes to the model rules are intended to streamline them to make it easier to apply to the use of social media, blogging, and other online communication. Some state bars have taken very restrictive approaches to online communications, and there is concern that such limitations may unduly restrict First Amendment rights.

So if you’re wondering, given the Facebook IPO and all, and find yourself asking the question, “Is Facebook a Passing Fad?” keep in mind – even if it is a passing fad, social media are here to stay, so buckle up!

Next post, we’ll be back with our mentor, Howard Rheingold, to help us explore and “approach the inmost cave.”

Read more about Barb’s Facebook Chronicles here.

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