Quick Facts about Legal Ethics and Social Networking


Diligence and competence require the lawyer to:

  • Understand if/how clients are using social networking;
  • Advise clients as to their further use of social networking to their best advantage; and
  • Use social networking sites as investigative tools (opposing party, witnesses, jurors).


Unintended Relationships:

Despite the informality of social networking, the giving of legal advice to others including friends and acquaintances may create unintended client-lawyer relationships. At the very least, it can create confidentiality and conflicts issues. See LEO 1842 (communications with website visitors).  See also ABA Formal Opinion 10-457 (August 5, 2010) (Lawyer Websites)

  • Legal information of general application about a particular subject or issue is not “legal advice” and should not create any lawyer-client issues for the blogging or posting lawyer. Appropriate disclaimers will assure this conclusion.
  • However, if a lawyer by online forms, e-mail, chat room, social networking site, etc. elicits specific information about a person’s particular legal problem and provides advice to that person, there is a risk that a lawyer-client relationship will have formed. LEO 1842.


Confidentiality:

  • Messages via Twitter or other social networks must be treated with the same degree of reasonable care as messages via e-mail or other traditional communications.
  • Discussion about pending legal matters raises problems, and generally should be left to traditional e-mail format.


Pretexting:

  • Pretextually “friending” someone online to garner information useful to a client or harmful to the opposition violates Virginia Rule 8.4(c) prohibition against “dishonesty, fraud, deceit or misrepresentation.”  
  • Even with a friendly pretext, Rules 4.2 and 4.3 apply to communications with persons represented by counsel or with unrepresented persons.

 
Lawyer Advertising and Marketing:

  • Statements made on social networks about a lawyer’s services may be subject to the advertising rules.
  • Name and address of responsible lawyer is required.  Rule 7.2(e).
  • Disclaimers required for specific case results [Rule 7.2(a)(3)] and specialization claims [Rule 7.4(d)].
  • Linked In allows you to ask for and receive “recommendations” from clients, colleagues, etc., which should be edited, if necessary, to ensure they comply with all RPCs.
  • Client recommendations are analogous to client testimonials, so:
    • You can’t have your client say things about you that you can’t say, Rule 8.4(a).
    • You probably have a duty to monitor your social network sites and blogs for comments and recommendations that may require revision or deletion.
    • For example, the lawyer cannot permit to remain on his LinkedIn page a client recommendation that says the lawyer is the “best personal injury lawyer in town” because it is a comparative statement that cannot be factually substantiated. Rule 7.1(a)(3).
  • Invitations from a lawyer to a prospective client into the lawyer’s LinkedIn or Facebook page would likely not fall within Rule 7.3, because the client can always decline the invitation; therefore, the invite is not considered in-person communication with prospective clients.
  • Disclaimer is required for listing “specialty” on LinkedIn. Rule 7.4(d).
  • Blogging is considered communication/advertising and is subject to Rule 7.1 – 7.5, as well as all other RPCs, particularly those that govern public statements made in respect to ongoing criminal matters. Rule 3.6.


Law Firm Policies Regarding Social Media:

  • Lawyers in law firms have an ethical duty to supervise subordinate lawyers and non-lawyer staff to ensure that their conduct complies with applicable rules of conduct, including the ethical duty of confidentiality. See Rules 5.1 and 5.3.  
  • Law firms need to have policies in place regarding employees’ use of blogs and social networking websites during and after normal business hours.


Social Media Tips:

  • Keep personal and professional interests separate. Facebook is better suited for personal, family, and friend connections.
  • Remember: “the whole world is watching!”
  • Frequently monitor and update your posts.
  • Regard social media as a powerful marketing tool.
  • Use the built-in privacy capabilities of the social networking sites, and consider limiting the access of users you are connected with. 
  • Remember that what you put out there is permanent!
  • Remember the RPCs still apply to all social networking!

 

Updated: Feb 22, 2011