Tread Carefully: Social Media, Lawyers, & Legal Ethics

Lawyers (and law students) engage in competitive intelligence gathering –  especially when it comes to publicly available information about witnesses and opposing parties.  With the growth of social networking sites,  the availability and questionable quality of online personal information proliferates. There is also a legal ethical component to using social media to conducting people research.

Another use of social media is promotion.  Social media – whether it encompasses blogging, a LinkedIn or Facebook page, a Twitter post, or any number of other new iterations – constitutes a powerful marketing tool for lawyers by combining personalized observation with facts and insights from the lawyer’s area of focus to help create new client relationships.   But there are concerns about whether social media activity is freely available information, or is advertising controlled by the bar because social networking messages are available to the entire world, not just existing clients.

For this reason, it’s no coincidence that The American Bar Association’s 2011 Legal Technology Survey Report of a wide cross-section of ABA members found that 42 percent of respondents said their firms maintain an online presence in social media, compared to 17 percent in 2010 – and 65 percent of individual respondents said that they personally have an online professional presence, obviously including a sizeable number who maintain such a presence even if their firms don’t.

The problem is that many lawyers are running into ethics problems.  They simply don’t know what they can and can’t do in the realms of social media.   “It is unclear what constraints there are. The law is still very much in its infancy, ” says Andrew M. Perlman, a professor at Suffolk University Law School and the reporter for the ABA Commission on Ethics 20/20 Working Group on the Implications of New Technologies.

The working group is studying ethics issues arising from lawyers’ use of social media and other technologies. It is part of the ABA Commission on Ethics 20/20, which is formulating proposals to clarify the rules in this area—and may even recommend significant amendments to the ABA Model Rules of Professional Conduct.

Here is a sampling of recent developments in this area:

• In 2010, the ABA Commission on Ethics 20/20 Working Group published an  “Issues Paper Concerning Lawyers’ Use of Internet Based Client Development Tools” raised these concerns in detail.
• In 2011, the ABA Commission on Ethics 20/20 Working Group recommended that social networking should not be used for “real time electronic contact” to solicit clients, rather it should be viewed as general communication tool used to educate potential clients.
• However, in 2010, the Ohio Supreme Court ruled that judges can “befriend” attorneys and others on social networking sites, provided that they tread carefully. The Ohio ethics decision  held that judges should not make comments online about matters pending before them, interact with an individual or organization in ways that would erode confidence in the judge’s impartiality in matters that come before the court, or use social networking sites to obtain information regarding a matter before them. Ohio Supreme Court opinion 2010-7 (12/3/10).
• In this Law Technology News article, the author discusses how to mine social media for evidence and touches on the ethics of “friending”.
• There is also an excellent article in LLRX that discusses court decisions and ethics opinions that provide guidance on pretexting and social networking sites.

Thanks to AALL RIPS Law Librarian blog for the information.