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Avoiding Ethical Pitfalls When Using Social Media

By Mindy Rattan

GC New York

November 8, 2012

The modern day practice of law, as well as everyday life, has been greatly impacted by social media. Many lawyers have a good understanding of what social media encapsulates. Facebook, Google+, Linkedin, MySpace, Twitter, YouTube, and Pinterest are well known examples. But lawyers also must be mindful of the ethical issues that arise when using social media. Electronic communications and content sharing are two prominent features of social media.1 These same features implicate numerous ethical issues concerning this now ubiquitous medium. Here are some key questions every lawyer should ask to avoid the ethical pitfalls of utilizing social media.

1. Is an attorney-client relationship being created when lawyers use social media?

Whether lawyers are posting information on a website, exchanging messages on Facebook, tweeting, or blogging, they must be mindful of whether an attorney-client relationship is being formed.

Rule 1.18 of the ABA's Model Rules of Professional Conduct (MRPC) states that a prospective client is someone "who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter." Even if no client-lawyer relationship is commenced, a lawyer cannot use or reveal any information learned, except as provided by MRPC 1.9 (duties to former clients). Further, lawyers must be wary of providing online legal advice to prospective clients who may be located in numerous jurisdictions to avoid the unauthorized practice of law. See MRPC 5.5; MRPC 8.5. Further, potential conflicts of interest must be avoided when exchanging preliminary communications online (MRPC 1.7-1.13).

Carefully crafted, conspicuously placed disclaimers regarding a lawyer's obligations are often found on a law firm's website and emails. Such disclaimers are not always possible when using social media. For instance, what if a lawyer is limited to 140 characters on Twitter? Lawyers must ask whether it is clear to potentially prospective clients on Facebook, or to listserv or chat room participants, what the lawyer's obligations are. And at what point is the lawyer obligated to preserve even a prospective client's confidential information under MRPC 1.6? There are numerous opinions that address these and related issues. See e.g., Florida Bar Standing Committee on Advertising Advisory Opinion A-00-1 (Revised August 29, 2011); Wisconsin Op. EF-11-03 (July 29, 2011); State Bar of California Op. 2005-168 (2005); ABA Op. 10-457 (Aug. 5, 2010); DC Op. 316 (July 2002); Philadelphia Op. 98-6 (March 1998).

Under newly amended Comment 2 to MRPC 1.18, a consultation is likely to occur if a lawyer solicits and receives information regarding the potential matter without providing any disclaimers or qualifiers limiting the lawyer's obligations to the prospective client. Merely providing background information on the lawyer's experience should not, according to the revised Comment, result in a consultation. Even though the District of Columbia Rules of Professional Conduct do not prohibit all in-person solicitation, an ethics opinion advises lawyers chatting online to provide general legal information, but not legal advice tailored to specific facts. D.C. Op. 316. Similarly, an Arizona opinion cautions against responding to legal questions in a chat room because of the inability to screen the potential client for conflicts and the danger of disclosing confidential information. Arizona Op. 97-04 (1997).

2. Are a lawyer's Internet marketing efforts running afoul of the ethics rules?

Social media provides a smorgasbord of opportunities for lawyers to market themselves to a wide audience. A quagmire of ethical issues exists when potential clients are just a few mouse clicks or taps of the iPad away.

MRPC 7.1 requires that all communications about the lawyer and the lawyer's services be truthful and not misleading in any way. MRPC 7.2 provides that a lawyer may not, subject to a few exceptions, "give anything of value to a person for recommending the lawyer's services." Under MRPC 7.3, lawyers cannot solicit work either in person, over the phone, or by real-time electronic contact. Restrictions are also placed on a lawyer claiming a specialty. MRPC 7.4. Lawyers must also ensure they are complying with all applicable rules of professional conduct (MRPC 8.5) and that they are not running afoul of MRPC 5.5 (unauthorized practice of law).

Many issues are raised when attempting to apply these rules to social media. See generally Florida Bar Guidelines for Networking Sites (Revised Jan. 10, 2012); State Bar of California Draft Op. Interim No. 10-0001; DC Op. 316 (July 2002); Arizona Op. 97-04. For instance, obtaining recommendations from third parties, such as on Linkedin, should be scrutinized to ensure that the controlling jurisdiction does not prohibit such references. Is a lawyer subject to the ethical rules if the recommendation is made on a third-party sites such as Avvo or Martindale Hubble? What if the lawyer's website includes a link to the ratings site? South Carolina Op. 09-10 (2009). To what extent can a lawyer pay for Internet advertising services? Arizona Op. 11-02 (October 2011).

Also, what constitutes real-time electronic solicitation? Despite its often near-instantaneous transmission, email is not universally acknowledged to be real-time electronic contact. Whether chat room discussions are real-time solicitations is also subject to debate, as some jurisdictions prohibit solicitations in chat rooms while others do not. Compare Florida Bar Standing Committee on Advertising Advisory Opinion A-00-1 (citing to other ethics opinions) with Arizona Op. 97-04 (1997). Jurisdictions also take different stances on listing a lawyer's specialties. Compare Arizona Op. 97-04 with the D.C. Rules of Professional Conduct, which does not have a Rule 7.4.

3. Are lawyers inadvertently disclosing confidential client information when using social media?

Blogging, posting or emailing on sites such as Facebook and Linkedin may soon be the preferred way to communicate, just as texting has overtaken email as a preferred medium for many. With these additional methods of informal communication comes the risk of lawyers disclosing information not meant for public consumption.

Ethical rules on competence (MRPC 1.1) and diligence (MRPC 1.3) are clearly implicated when lawyers use social media sites, many of which are on "the cloud." In August 2012, the ABA House of Delegates approved an amendment to the comment on the competence rule. The amended Comments reflects that part of a lawyer's obligation to maintain the requisite knowledge and skill includes keeping abreast not only of changes in the law, but also "the benefits and risks associated with relevant technology." Further, protecting clients' confidential information is required by MRPC 1.6 and 1.15. MRPC 1.6 was recently amended to add that a lawyer "shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client."

A critical aspect of protecting a client's confidential information involves understanding what is on the cloud. Many lawyers may be using the cloud and not even know it. Facebook, Linkedin, YouTube, and Twitter are all cloud-based social media sites that lawyers use to communicate with current or prospective clients. A major ethical pitfall of exchanging data on the cloud is the risk of data inadvertently being sent to, or received by, the wrong recipient.

One of the more comprehensive ethics opinions on cloud computing issues is from the Pennsylvania Bar Association's Committee on Legal Ethics and Professional Responsibility. Op. 2011-200. That opinion, which describes cloud computing as when "'stuff's not on your computer,'" explains that lawyers have an obligation to take "reasonable care" to make sure that a client's confidential information remains confidential and that "reasonable safeguards are employed to ensure that the data is protected from breaches, data loss and other risks." The opinion then goes on to suggest how lawyers can comply with the daunting reasonable care standard in this highly technical context. See also ethics opinions on cloud computing listed on the ABA's website, available at http://www.americanbar.org/groups/departments_offices/legal_technology_resources/resources/charts_fyis/cloud-ethics-chart.html.

Some of the same precepts discussed in the Pennsylvania opinion can be applied both to the lawyer who exchanges messages with a client on Facebook, and to the lawyer who is paying a third-party vendor to store the client's data. Lawyers must determine whether adequate safeguards are being utilized to protect communications exchanged on social media sites. Perhaps a more fundamental issue is how to prevent the inadvertent disclosure of information when sending emails from smartphones or laptops over unsecure Wi-Fi connections, such as at the local Starbucks. See Pennsylvania Op. 2011-200; see also ABA Op. 11-459 (Aug. 4, 2011); DC Op. 281 (Feb. 18, 1998).

Further, although lawyers cannot overtly disclose a client's confidential communications under MRPC 1.6, are they indirectly doing so by using not-so-craftily worded language on blogs or other social media postings? Lawyers must ask whether others reasonably can figure out what matter or client is being discussed despite the lawyer's failure to expressly identify either. Unfortunately, there are numerous examples of lawyers running into trouble from online postings.

4. What are the limits on using social media as a discovery tool?

Today, as the expectation of privacy seems to be somewhat of an archaic ideal that is increasingly abandoned, social media represents a treasure trove of evidence to be discovered for litigation. Lawyers tempted to gain access to such a fertile source of information should think twice before "friending."

Under MRPC 4.1, a lawyer must not make false statements of law or fact to third persons. MRPC 4.2 provides that lawyers cannot communicate with persons known to be represented by another lawyer without the consent of the other lawyer or authorization to do so by law or court order. Similarly, under MRPC 4.3, a lawyer cannot overtly state or imply any disinterest in dealing with an unrepresented person. Senior or supervisory lawyers must ensure compliance with the rules of professional conduct by junior lawyers (MRPC 5.1), while junior lawyers independently remain bound by the rules (MRPC 5.2). Both sets of lawyers must ensure that the conduct of non-lawyers—such as legal assistants, paralegals, and third-party vendors or investigators—is compatible with the lawyer's ethical obligations (MRPC 5.3). Moreover, professional misconduct by a lawyer includes engaging in conduct involving "dishonesty, fraud, deceit or misrepresentation." MRPC 8.4(c).

As with most legal issues, reasonable minds differ as to how information on social media may be obtained ethically. A New York City ethics committee addressed the ethical implications of "friending" potential witnesses in a litigation. The committee concluded that a lawyer or his agent could "friend" a potential witness that was unrepresented as long as the lawyer or agent uses his real name and profile. New York City Bar Committee on Professional Ethics Op. 2010-2 (September 2010). Further, the lawyer or agent need not disclose the reason for the "friend" request. The New York State Bar Association ethics committee, however, issued an opinion concluding that a lawyer can ethically view and access the Facebook and MySpace pages of a party other than his own client for use in pending litigation, but only if the lawyer does not "friend" the party, and views only the public pages available to all members in the network. New York State Bar Association's Committee on Professional Ethics Op. 843 (Sept. 10, 2010). As long as no "friending" occurred, the committee concluded that New York Rules 4.1, 5.3(b)(1), and 8.4 would not be violated. See also San Diego County Bar Legal Ethics Committee Op. 2011-2 (May 24, 2011)); Philadelphia Op. 2009-02 (March 2009); Oregon Op. 2005-164 (August 2005).

The Takeaway. Lawyers must now become more tech savvy to avoid stumbling into ethical issues arising from the use of social media. Identifying the relevant ethical rules is an important first step to avoiding ethical violations. Thankfully, there are numerous bar opinions to help guide lawyers down the digital road (and through the cloud) that lies ahead.


Mindy Rattan is counsel with the Washington, D.C., office of McKenna Long & Aldridge and is the chair of the law firm defense ethics committee at the firm.

Endnotes:

1. Merriam Webster defines social media as "forms of electronic communication (as Web sites for social networking and microblogging) through which users create online communities to share information, ideas, personal messages, and other content (as videos)." http://www.merriam-webster.com/dictionary/social media.