By now, you’re probably convinced that social media has real potential for your law firm’s marketing plan. But, as a prudent lawyer, you also want to make sure that your social media activities on Facebook, LinkedIn, Twitter and Google+ don’t run afoul of your state’s legal ethics rules.
Guidance is on its way – later this year, the American Bar Association’s Ethics 20/20 commission will release revised model rules that address online legal marketing. Meantime, some states are also mulling revisions to their rules of professional conduct and issuing ethics advisory opinions.
As you await those rules and rulings, here are five points to consider about social marketing and legal ethics:
- Avoid unintentionally turning a “friend” into a client. Many people are trying to find answers to their legal problems through social media. Avoid the temptation to provide legal advice in this context. It could lead to the formation of an attorney/client relationship – and all of the responsibilities and liability that go with it. A 2010 ABA Ethics 20/20 Issues Paper notes that there is a greater risk of creating an inadvertent attorney/client relationship on social media than on a typical website. That’s because the lawyer has less control over the flow of information from prospective clients on social media. Keep responses general and encourage social media visitors to seek legal counsel.
- Social media sites don’t respect state lines. Social networking could also land you in hot water for the unauthorized practice of law if you are communicating with someone in a jurisdiction where you aren’t licensed to practice. The Indiana State Bar Association raised this issue in an article in the March 2011 issue of Res Gestae, its journal. The article referenced Indiana Rules of Professional Conduct 5.5, which governs the unauthorized and multijurisdictional practice of law.
- Privacy on social media is an illusion. You should operate on the assumption that everything you post on a social media site is potentially available to everyone on the Internet. Be very cautious about writing anything that could expose confidential client information. Even a seemingly innocent post about a case you are trying could waive the attorney/client privilege and land you in ethical hot water. Your jurisdiction most likely has rules similar to Model Rules 1.6 (Client-Lawyer Relationship – Confidentiality of Information) and 1.18 (Duties to Prospective Clients). Revealing confidential client information on social media could run afoul of these rules.
- If you can’t tweet something nice, don’t tweet anything at all. Infuriated by that boneheaded judge’s idiotic ruling on your motion? Unless you are Charlie Sheen, resist the urge to vent by pecking out 140 characters in Twitter to share your frustration. Keep in mind that saying nasty things about judges – or anyone else for that matter – on social media could get you in trouble with disciplinary authorities and invite a defamation suit, which generally isn’t covered by malpractice insurance. The Florida Supreme Court has upheld sanctions against an attorney who called a judge an “evil, unfair witch” in a blog post. The case is The Florida Bar v. Sean William Conway (Case No. 08-326). The Bar found violations of several ethics rules, including Rule 4-8.2(a), which prohibits making false or reckless statements about the qualifications or integrity of a judge.
- If you can’t do it yourself, don’t get someone else to do it for you. It might be tempting to enlist the help of non-lawyer friends, co-workers or even former clients to post glowing reviews about your practice on your LinkedIn profile or Facebook page. Be wary of ethics rules that could make you responsible for the truth of anything that is posted on a site you control. For example, South Carolina Ethics Advisory Opinion 09-10 (2009) states that client comments on social media sites could violate state ethics rules governing client endorsements and testimonials.
This list isn’t exhaustive and rules vary by jurisdiction, but these considerations are a good way to start thinking about the ethical implications of social media. As with everything else a lawyer does, a little caution up front can prevent a lot of grief later.
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