Before You Tweet… Top Ethical Risks of Using Social Media

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By: The NBI Team

Tuesday, June 23, 2020

Before You Tweet… Top Ethical Risks of Using Social Media

Social media use by people of all ages has grown exponentially in recent years. In response, many law firms have established profiles on popular social networking sites, hoping to reach current and prospective clients by posting or sharing timely, relevant information related to the firms’ practice areas. Attorneys have also recognized that social media can be a source of information regarding the firm’s clients or opposing parties, helping shape case strategies.

Using tools like Facebook, Twitter, Instagram, LinkedIn, YouTube, and other platforms can be a worthwhile part of any law firm’s marketing and communications plans and can provide valuable insight when preparing for litigation or negotiations. However, attorneys should be aware of the potential ethical pitfalls of using social media tools in their practices. NBI’s OnDemand course, Legal Ethics and Social Media: What Attorneys and Law Firms CAN and Should Do, provides an in-depth look at social media use by legal professionals and offers guidance designed to help attorneys and firms operate within the rules.

Some of the potential ethical challenges attorneys face with social media use are highlighted below:

Compliance with State Bar Advertising Rules

Attorneys must ensure their social media use, including static profiles and postings, comply with their state bar’s rules related to advertising. In some states, profiles and posts must include specific disclaimers and be labeled as “attorney advertising” or something similar. Other state rules provide more specific definitions about what does/doesn't constitute advertising material.

It is also important to understand any state-specific distinctions between personal and professional social media use. Generally, attorneys are expected to comport themselves professionally at all times. Inappropriate social media postings using a lawyer’s personal account rather than their professional or firm profile could still land an attorney in hot water. Attorneys must also be conscious of developing online relationships with clients or other parties which could create real or perceived conflicts of interest.

False “Friending”

Viewing information that clients or adverse parties made publicly available online does not cross ethical boundaries. However, attempting to “friend” someone online to see the information they share with their circle of trusted online contacts can be problematic. An attorney who pretends to be someone they are not in order to gain access to content an opposing party has only shared with their friends, or who otherwise connects with someone online under false pretenses, could face allegations that they violated their state’s conduct rules related to communications.

Rule 4.2 of the Model Rules of Professional Conduct prohibits attorneys from communicating with anyone represented by another attorney unless the other attorney has consented to such contact or the attorney making contact is otherwise authorized by law or court order to do so. This bar on communications includes communicating through social media channels.

Solicitation of Clients

Attorneys using social media must ensure any targeted communications do not run afoul of client solicitation rules. Model Rule 7.3 prohibits attorneys from trying to obtain client engagements when “the target of the solicitation has made known to the lawyer a desire not to be solicited by the lawyer.” It can sometimes be difficult to ascertain the true identity of someone behind a social media profile; attorneys must exercise caution whenever sending direct messages to potential prospects, confirming that the recipient has not previously indicated a desire not to be contacted by the attorney or firm.

Similarly, lawyers using social media channels to communicate with the public must also walk the line between providing general information and providing legal advice so they don't inadvertently create attorney-client relationships with followers.

Failing to Preserve Information

Attorneys can also run afoul of the rules by inadvertently failing to preserve information related to the legal matters they handle. While attorneys may recommend that clients change their social media privacy settings, telling a client to delete posts, images, videos, or other content is tantamount to the destruction of evidence. Model Rule 3.4(a) prohibits the unlawful alteration, destruction, or concealment of potential evidence. Attorneys must be mindful of all applicable rules when advising clients on how to manage online social media presence during litigation.

Breaching Client Confidentiality

Social media use by attorneys can also inadvertently violate their duty to maintain client confidentiality. It can be tempting to use social media posts to share real-life legal case scenarios with followers, specifically as a way of advertising the firm’s practice areas and demonstrating the attorney’s skills and knowledge.

Of course, revealing actual client information is prohibited without the client’s informed consent. Lawyers, aware of this, sometimes try to create hypothetical scenarios using the actual underlying facts in their online comments or posts. However, doing so does not avoid a violation of Model Rule 1.6(a) if there is a possibility that someone could read the “hypothetical” and use the information therein to identify the client or the situation.

Leverage the Benefits of Social Media Safely

The bottom line is that attorneys need to understand ABA guidance and be aware of state-specific requirements related to social media use so they can operate effectively within that framework of rules.

In addition to courses on social media and ethics, NBI offers more than 16,000 live and OnDemand state-approved CLE courses in all 50 states, helping attorneys stay abreast of new developments. Explore the full course catalog today.

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This blog post is for general informative purposes only and should not be construed as legal advice or a solicitation to provide legal services. You should consult with an attorney before you rely on this information. While we attempted to ensure accuracy, completeness and timeliness, we assume no responsibility for this post’s accuracy, completeness or timeliness.

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