Social media services such as Facebook, LinkedIn and Twitter provide lawyers with a brave new world for networking. There are many potential benefits. There are also many potential ethical risks and pitfalls relating to confidentiality and advertising.
Lawyers must remember that they are always bound by the Rules of Professional Conduct even when not at work. The ease of social media can make it all too easy to overlook some of the rules governing our profession.
Protecting Information Relating to the Representation
Social media platforms are designed to make it easy to share information. Like many other forms of new technology, social media pose specific risks and challenges for lawyers.
Lawyers should be mindful of any tendency to reveal confidential client information that should not be disclosed under RPC 1.6. The scope of confidentiality is broad: "information relating to the representation of a client[.]" This "includes, but is not limited to, confidences and secrets."1
Lawyers should be aware whether they are communicating one-on-one with a particular person or broadcasting to the world. But even if lawyers use a private messaging feature of a particular form of social media, such messages may be rebroadcast to others, and such further transmission may be completely out of the original sender's control. Similarly, lawyers must be sufficiently aware of the technology to have an understanding about the integrity and security of the data they are transmitting.
Lawyers have increasingly used email and listservs to share general information, and this will probably increase on social media sites. But care must be taken to ensure that information related to a representation is not shared absent the client's informed consent or implied authorization.
In some instances, lawyers can speak with lawyers who are outside of their firm about a case.2 But there are limitations, particularly that any disclosure about the case must be authorized by the client.3 For example, despite common practice, lawyers may be restricted from providing a copy of an expert deposition transcript to another lawyer without the client's informed consent, if the transcript contains confidential client information.4
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