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, email, 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. See LEO 1842.


Confidentiality:

  • Messages via Twitter or other social networks must be treated with the same degree of reasonable care as messages via email or other traditional communications.
  • Discussion about pending legal matters raises problems, and generally should be left to traditional email 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.
  • Disclaimers are no longer required for all case results identified in advertising, but one should be used when necessary to prevent the case result listed from being misleading. Rule 7.1, Comment [2].
  • LinkedIn 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, Rules 7.1 and 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 to the extent that you have control over the posts contained thereon.
    • 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 and Comment [2].
  • An invitation from a lawyer to a prospective client on the lawyer’s LinkedIn or Facebook page is not a “solicitation” unless the lawyer knows that the prospective client is in need of legal services in a particular matter. The words “ADVERTISING MATERIAL” are thus not required under Rule 7.3 (c).
  • Blogging is considered communication/advertising and is subject to Rule 7.1, 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: Nov 01, 2019