October 2012 Bar Bulletin
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October 2012 Bar Bulletin

Social Media and the Ethical Practice of Law

By Chris Pothering


Careful lawyers should assume that everything they post on a social networking platform is going to be read by "a 62-year-old male judge without a sense of humor." So states Simon Chester, lawyer, blogger and technology expert, in a recent article in U.S. Law Week.

Not so long ago, few law firms used social media. Most law firms banned its use entirely. Now, however, young lawyers and staff are using social media - and so are many senior lawyers. This shift has led to a fundamental change in the ways people communicate with each other, both personally and professionally. It has also changed the way we need to balance the opportunities offered by emerging social media tools with long-standing legal professional responsibilities.

One of the great benefits of social media is immediacy. One of the most dangerous features of social media is permanency. Because they are now able to do so, many lawyers are tempted to jump into an online conversation, to answer a Twitter question or to post on a hot topic as soon as possible. These are all potentially great uses of social media. However, lawyers must remember that the same ethics rules that bind lawyers offline also apply to their online relationships.

Client confidentiality is a fundamental tenet of the lawyer-client relationship. Lawyers have a fiduciary obligation that prevents them from using or disclosing information about the representation of a client without the client's express permission. This applies online.

In addition, lawyers need to understand that any examples they use online, even when they do not name specific names, may contain enough details to identify the client. Once a post has been published on the Internet, it is essentially permanent. Even if you realize your mistake and "take down" a potentially unethical post, chances are good that it has already been circulated to other sites where it continues to breach your duty to keep a client's information confidential.

The ethical rules that govern traditional lawyer advertising and solicitation also apply to social media. Lawyers must be very careful not to make false or misleading statements about themselves or the services they offer. It can be very easy for a lawyer to inadvertently exaggerate or "puff" his or her background or successes. Inadvertent or not, any false or misleading statement is a violation of the lawyer's ethical responsibility.

One common trap lawyers fall into online is communicating with persons who are already represented by counsel. Often, lawyers don't know to whom they are "talking" when they post on Twitter, Facebook, LinkedIn or any of the other social media sites. Actively engaging in a conversation, or even just straightforward posting, could potentially constitute improper contact with a person represented by counsel.

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