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Social Media and Legal Ethics - E-Discovery, Information Governance & Cyber Security Section News

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E-Discovery, Information Governance & Cyber Security Section News

Posted on: Aug 7, 2019

By Helen Geib, QDiscovery

Social media is an inescapable part of our personal and work lives. In this respect, lawyers are just like everyone else. However, there’s also a critical difference: social media is a legal ethics minefield. Avoid the danger zones by keeping these six key ethics rules in mind at all times.

  1. Keep client information confidential.
    Confidentiality, one of the fundamental ethical duties, is enshrined in Rule 1.6 - Confidentiality of Information. The obligation extends to former clients per Rule 1.9 - Duties to Former Clients. 
    That you can’t disclose a client’s privileged or confidential information on social media is obvious. Less obvious is that you can’t disclose any information relating to the representation without the client’s permission – including public information like trial verdicts. The duty of confidentiality even extends to the fact of representation.
    Practice pointer: Use the engagement letter to obtain advance permission for limited public disclosures such as giving the client’s name as a reference.
  2. Use care when advertising – and yes, LinkedIn counts.
    Rule 7.2 - Advertising permits lawyers to advertise. Advertising is defined as “any manner of public communication partly or entirely intended or expected to promote the purchase or use of the professional services of a lawyer, law firm, or any employee of either involving the practice of law or law-related services.” Firm websites, LinkedIn pages and postings on law-related blogs, forums and message threads fall within the scope of the rule.
    The comments to Rule 7.2 specify 20 “permissible subjects” of advertising. The list starts with contact information and ends with fees. In between, it lists the topics typically covered by lawyers’ bios such as academic degrees, bar admission, publications, professional memberships and fields of practice. 
    Practice pointer: Cross-check your LinkedIn profile against the “permissible subjects.”
  3. Keep it honest.
    All lawyer advertising must comply with the Rules of Professional Conduct. That includes the duty of honesty. Rule 7.1 - Communications Concerning a Lawyer’s Services prohibits false and misleading statements about the lawyer or the lawyer’s professional services. Whatever the medium, the content must be accurate.
    Keep the reader in mind, especially when writing for general audience on social media. Avoid legal jargon as much as possible. It’s confusing and potentially misleading to the non-lawyers the rules of ethics are designed to protect.
    Practice pointer: Fact-check your bio with the aid of a friend or family member who isn’t a lawyer.
  4. Don’t call yourself an expert (unless the rules say you can.)
    Lawyers are allowed to state that they do (or don’t) practice in a particular area of law. You’re also allowed to make truthful and accurate statements about your experience in a practice area or representing clients in a particular industry. However, Rule 7.4 - Communication of Fields of Practice and Specialization prohibits lawyers from describing themselves as experts or specialists.
    There are three limited exceptions to Rule 7.4. The first two are patent lawyers admitted before the USPTO and lawyers in Admiralty practice. The third exception, set out in subsections (d) and (e), is lawyers certified as specialists by organizations approved for that purpose by the Indiana Commission for Legal Education. Rule 7.4(d) requires you to identify the certifying organization any time you describe yourself as a specialist.
    Practice pointer: Approach the LinkedIn “endorsement” button with caution. A nationwide debate is raging as to whether it runs afoul of Rule 7.4. If you turn the feature on, periodically monitor your endorsements for accuracy.
  5. Be mindful you don’t create an attorney-client relationship.
    Under Rule 1.18 - Duties to Prospective Clients, “A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.” When I was in law school in the late ‘90s we were cautioned against giving legal advice at parties. The warning has stood me in good stead after years of people I’ve just met (like Uber drivers) asking me highly personal legal questions I don’t know the answer to.
    However, compared to casual conversation social media poses a much higher risk of creating an unwanted attorney-client relationship. First, lawyers posting on social media are advertising under Rule 7.2. Second, most readers are there precisely because they’re looking for legal advice. Third, it’s in writing. It’s important to make it clear that you are not giving specific legal advice that would give rise to an attorney-client relationship.
    Practice pointer: Include a standard disclaimer on blog posts and in your LinkedIn profile.
  6. Exercise caution to avoid direct solicitation.
    Finally, be mindful of Rule 7.3 - Direct Contact with Prospective Clients. Direct solicitation is prohibited unless the prospective client is a family member or friend, another lawyer or a former client. 
    Always be circumspect in your language. Exercise caution when answering questions in groups, forums and message threads.
    Practice pointer: If in doubt request informal guidance from the Disciplinary Commission.

Social media offers many opportunities for legal marketing and professional development. Lawyers who are mindful of the ethics rules and use good judgment can take advantage of those opportunities while steering clear of the danger zones. See the full text of the Indiana Rules of Professional Conduct here.

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