March 4th, 2019
Ethical Dangers of Using Social Media by an Attorney
Last month I gave warnings to injured persons as to why it was never too late to hire an attorney. So, what is good for the goose is good for the gander. This month I intend on warning attorneys about a potential danger in their job. I hope to warn attorneys on the perils of using social media. Several cautionary issues of the same involve the following:
1. Posting a Social Media Profile
Posting a profile on social media when it is used to “promote the lawyer or law firm's practice” is advertising. See,' e.g., Guidelines for Networking Sites, FLA. BAR STANDING COMM. ON ADVER. (Apr. 16, 2013). Just posting a profile of only contact information and qualifications can implicate the Rules. See, e.g., Quick Facts About Legal Ethics and Social Networking, VIRGINIA STATE BAR, (“Statements made on social networks about a lawyer's services may be subject to the advertising rules.”). There are two common issues for lawyers when creating a profile for social media sites: (1) information cannot be false or misleading (i.e., it cannot contain “a material misrepresentation of fact or law”), Id., and (2) the attorney must not claim he or she is an expert or has a specialty without appropriate justification and possibly disclaimers. See MODEL RULES OF PROF'L CONDUCT R. 7.4 (2013). For example, under MR 7.4, an attorney may not necessarily state on his profile that he “specializes in patent law,” even if patent law comprises the majority of his practice. That statement could imply that he is in fact certified to practice before the USPTO. If he is not a member of the Patent Bar, this statement would violate MR 7.4.
2. Blogging or Posting the Law
Blogs and other posts about the law are considered to be mostly educational and not advertising, even if they end up generating business. See generally Phila. Bar Ass'n Prof'l Guidance Comm., Formal Op. 2010-6, 7 (2010). In general, as long as the primary purpose of posting information is not to encourage retaining the lawyer, this posting is permitted. N.Y. State Bar Ass'n Comm. Prof'l Ethics, Formal Op. 899.
3. Posting About Professional Successes
When advertising professional successes, if the announcement requests future business or intimates that a lawyer could deliver an equally successful result for a new client, the ethics rules on advertising would apply. Under MR 7.2, a communication is considered an advertisement when it “involves an active quest for clients.” MODEL RULES OF PROF'L CONDUCT R. 7.2 cmt. 1 (2013). Once a communication becomes an advertisement, not only must it comply with MR 7.1 such that it is truthful, not misleading, and not likely to create unjustified expectations in the mind of a client, but it also must comply with the additional notice requirements of MR 7.2. MODEL RULES OF PROF'L CONDUCT R. 7.2 (2013). An important additional fact is that a lawyer's services don’t need to cost anything for a communication to be considered advertising. If a lawyer offers a free consultation or offers services for free, according to at least one state, upon signaling “availability for professional employment,” he is advertising. Cal. State Bar Comm. Prof'l Responsibility & Conduct, Formal Op. 2012-186.
4. Specifically Soliciting Business
Advertising messages over social media sent beyond a lawyer's circle of “followers,” “friends,” and “connections” (and not to a current or former client or family member) are subject to the rules governing solicitations. MR 7.3 specifies the protocol for the situation when a lawyer sends messages out to recipients that have not specifically opted in to receive them. Under the Rules, communication that falls under the solicitation requirements must not only comply with all the requirements of verifiability and veracity but must also be specifically labeled “Advertising Material” and must not be delivered as a “real-time” contact. MODEL RULES OF PROF'L CONDUCT R. 7.3 (2013).
5. Breaching client confidentiality
MR 1.6 states that “[a] lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent ....” MODEL RULES OF PROF'L CONDUCT R. 1.6(a) (2013). Even though the person is his client, the lawyer is required to preserve even public information about the case under MR 1.6. MODEL RULES OF PROF'L CONDUCT R. 1.6 cmt. 3 (2013) (“The confidentiality rule, for example, applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law.”). This is especially difficult to comprehend when the same information might be tweeted, without any ethical violation whatsoever, by a reporter, a bystander, or even another lawyer from a different firm attending the trial, but whom is not part of the case. The lawyer must secure informed consent from his client before he may post. See id.
To share information related to the case that would be of interest to a lawyer’s followers, friends, and contacts, he could get informed consent from his client to make known the specific information or he could comment on the underlying legal theories that his case challenges or represents. As long as he is careful about revealing actual facts, a lawyer may post a fair amount of information. Helen W. Gunnarsson, Friending Your Enemies, Tweeting Your Trials: Using Social Media Ethically, 99 ILL. B.J. 500, 502-03 (2011).
6. Checking up on Jurors
Social media can pose a danger when a lawyer is trying to research jury members for his own benefit. Social media provides an opportunity for an attorney to learn more about potential jurors. Not only can an attorney get a broader picture of the person but also check the accuracy of the potential juror's responses. Most courts are not too concerned about using publicly-available information, although even in those instances a lawyer should be concerned that (1) the juror must not be able to know about the research, and (2) if counsel uncovers an inconsistency between what a juror stated in voir dire and what is on his social media site, counsel must report the inconsistency to the court. See N.Y. Cnty. Comm. on Prof'l Ethics, Formal Op. 743 (2011) (citing N.Y. RULES OF PROF'L CONDUCT R. 3.5(d)); Ass'n of the Bar of the City of N.Y. Comm. on Prof'l & Judicial Ethics, Formal Op. 2012-2 (2012); Oregon State Bar Ass'n, Formal Op. 2013-189 (2012). As a practical matter, it is easy for an attorney to hide his presence on Facebook and Twitter because an account holder does not see visitors to his public feed. Facebook doesn't let people track who views their profile. Third-party apps also can't provide this functionality. However, it tracks and reports the names and titles of any visitors to a profile. If an attorney intends to research a juror, he should make sure his own privacy settings on the site or app are set to hide his visits.
Under Model Rule 3.5 a lawyer may not “(a) seek to influence a ... prospective juror ... by means prohibited by law” or “(b) communicate ex partewith such a person during the proceedings unless authorized to do so by law or court order.” MODEL RULES OF PROF'L CONDUCT R. 3.5 (2013).
Hopefully, all of the above will advise an attorney who reads this blog of the potential ethical dangers of using social media. These are just a few of the possible things that could lead to an ethics violation. Thus, to all lawyers, be cautious next time you intend to use the internet as part of your job.