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5 Legal Ethics Pitfalls to Avoid in Your Law Firm’s Social Media Campaign
Friday, September 20, 2013

Social Media can be a powerful tool for gaining exposure for your law firm and cultivating relationships with past, current and potential clients. However, as with any client-development method, lawyers who use Social Media must use caution to stay within the bounds of their jurisdiction’s rules of professional conduct.

“If you can’t do it through other channels, you also can’t do it through Social Media,” is good general advice for lawyers who are active on Twitter, Google+, Facebook, LinkedIn and other social sites.

Despite recent efforts by the American Bar Association’s Ethics 20/20 commission to clarify how the Model Rules of Professional Conduct apply specifically to attorneys’ online activities, legal ethics experts say a great deal of ambiguity remains.

“The Ethics 20/20 Commission did an extraordinary job. But so much electronic communication is running so far ahead of ethics rules, and the commission may still have been focused on what was rather than what will be,” panelist Juliet M. Moringiello said during the ABA Annual Meeting on Aug. 10, 2013.

Moringiello, a law professor, was speaking during a program entitled “Things My Ethics Professor Didn’t Tell Me: Top Ethical Pitfalls for the Social Media Age,” according to an ABA Journal Now blog post.

The practice of law continues as national and local institutions work to keep up with the forward march of technology. Based on the legal ethics guidance currently available from the ABA and state ethics rulings, here are five points to consider about social marketing and legal ethics:

1. 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.

According to a 2010 ABA Ethics 20/20 Issues Paper, there is a greater risk of creating an inadvertent attorney/client relationship on Social Media than on a typical website. This is 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.

2. 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 communicate with someone in a jurisdiction where you are not licensed to practice. The Indiana State Bar Association raised this issue in an article in the March 2011 issue of its journal, Res Gestae. The article referenced Indiana Rules of Professional Conduct 5.5, which governs the unauthorized and multijurisdictional practice of law.

3. Privacy on Social Media is an illusion.

You should assume that everything you post on a Social Media site is 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 handling 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.

4. If you can’t tweet something nice, don’t tweet anything at all.

Infuriated by that boneheaded judge’s idiotic ruling on your motion? 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.

5. 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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