Lawyers Must Embrace Social Media, Part 1

by Bradley A. Friedman on July 6, 2011

Source: http://lawyerist.com/social-media-ethics-lawyers-top-5/

The Code of Professional Responsibility, Rule 1.1 Competence provides, “A lawyer shall provide competent representation to a client.  Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”  Comments to Rule 1.1 provide, in part, “Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners.”

I can make an argument that an attorney’s failure to embrace the Internet and all its power, particularly social media, is a violation of Rule 1.1 Competence.

The court system itself is sending this message to attorneys, evidenced by the fact that most court systems accept only electronically filed pleadings (filed over the Internet).  And it goes without saying, lawyers are expected to utilize the Internet to obtain information about witnesses, opposing parties and even clients.

In addition to enabling an attorney to provide competent counsel, keeping up with the online world, along with social media networks, is just good business.  Social networks like Twitter and LinkedIn, as well as blogs and other interactive social platforms, allow lawyers to keep up with current law, collaborate with colleagues, communicate with clients and reach out to prospective clients and referral sources.

Though we insist attorneys must embrace what’s happening online, we strongly suggest it not be done haphazardly. Creating a thoughtful online or social networking plan is essential.  Turning over one’s online presence to the firm’s 25-year-old intern is a recipe for disaster.  Though it is essential to keep up with the ever-changing Internet, one must do so while continuing to comply with the Code of Professional Responsibility. This new world provides many ways for attorneys to unknowingly breach confidentially, mislead clients, fall short of the standard of care, violate ethics rules, state and federal privacy laws and data security laws.  Careful planning must include an acknowledgement of the risks and a plan to avoid them.

Let’s look at a few examples of the risks.

The Use of Social Networks
Some attorneys have begun to participate in social networks like Facebook, LinkedIn, Legal Onramp, JDSupra and Twitter.  There is no doubt these networks can be beneficial to one’s practice on a number of different levels.  Using these networks can enable one to have up-to-the-minute information on a new legal precedent, as well as enabling attorneys to obtain referral sources and potential clients.  But, if the use of these networks is not done in a thoughtful manner, according to a plan, attorneys risk breaching confidentiality or violating the attorney/client privilege through even the most seemingly innocuous status updates and tweets.

The attorney who cancels date night with her husband by tweeting, “Can’t make dinner, must meet with the CEO of XYZ Corp. Don’t wait up.  Love you!” may inadvertently have caused XYZ stock to go up or down while violating confidentiality rules as well as state or federal insider trading laws.  Keep in mind, the problem here is not so much the fact that she communicated this information to her spouse.  The problem is she has no control over a tweet, or Facebook status update, once its online. Comments to the tweet or status update multiply the number of people who see it and serve to increase the risk of a rules violation.  This would also be true for the attorney who “Friends” her client and communicates with her over the Internet.  The risk of an inadvertent waiver of privilege or the unanticipated breach of confidentiality is high.

The Philadelphia Bar Association Professional Guidance Committee promulgated Opinion 2009-02 in March 2009. Here an attorney deposed an 18 year-old non-party witness who, during the course of her testimony, revealed she had a Facebook account.  The committee opined that an attorney who engages a third-party to “Friend” a non-party witness with the hope of discovering damaging evidence on her Facebook page violates ethical Rule 8.4 by knowingly assisting or inducing another to engage in conduct involving dishonesty, fraud deceit or misrepresentation.

Additional examples like these exist.  As attorneys embrace social media networks they must not forget their responsibility to comply with confidentiality and privacy rules.  Attorneys must be mindful of the risks involved in utilizing the Internet for any part of their business or personal life.  Part 2 of this series offers some suggestion for managing these risks while taking advantage of the new technology and all its benefits.

In the video below, from a recent CLE presentation on social media, you’ll see more of what I’m talking about. In the comments area, tell us what you’re doing and how it’s working.

Social Media For Lawyers, By Lawyers from Colorado Bar Association on Vimeo.

Our Own Disclaimer

The information we share in Part 1 and Part 2 of this series is for informational purposes only.  We are not, under any circumstances, providing legal advice of any kind.  Examples used in these blog posts were used for illustrative purposes only and are not intended to establish any standards of care or serve as legal advice.  Accordingly, these posts should not be viewed as a substitute for the guidance and recommendations of a professional you engage to give such advice.

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