If you “like” a political Facebook post, or tweet a comment on a controversial legal topic, are you potentially creating an ethical conflict of interest with your clients who may have contrary interests? The District of Columbia bar ethics committee thinks so, and warns about the risk in its Opinion 370, issued late last month.
The position, which the ABA/BNA Lawyers’ Manual on Professional Conduct (subs. req.) called “novel,” is part of an opinion that otherwise accords with the large body of common-sense advice about using social media for legal marketing and personal enjoyment. Opinion 370 weighs in on several frequently-encountered issues, such as protecting client confidences, responding to online reviews and identifying legal specialties.
But the D.C. bar ethics committee is possibly the first to single out blogging, tweeting or commenting as having the potential to raise a “positional conflict” with a client. Such a conflict can arise when a lawyer takes one position and then takes an inconsistent position on behalf of a client. The D.C. committee said:
“Caution should be exercised when stating positions on issues [on social media], as those stated positions could be adverse to an interest of a client, thus inadvertently creating a conflict. [D.C.] Rule 1.7(b)(4) states that an attorney shall not represent a client with respect to a matter if ‘the lawyer’s professional judgment on behalf of the client will be or reasonably may be adversely affected by … the lawyer’s own financial, business, property or personal interest.’ … Content of social media posts … may contain evidence of such conflicts.”
While at least one academic scholar has advanced the idea that blogging can raise such a positional conflict, comment  to D.C.’s Rule 1.7 seems to describe the conflict only in connection with taking inconsistent positions on behalf of a client in a matter, where doing so would “adversely affect the lawyer’s effectiveness in representing another client.”
That would seem to rule out the possibility of a positional conflict where a lawyer is simply making a personal expression of opinion using social media, outside the scope of representing a client.
Bad for business…
Nonetheless, the brief warning in the D.C. opinion is valuable in making the point that what you say on-line can put you in an awkward spot with clients or potential clients. Being identified in a high-profile way with a particular position could certainly cause a client to fire you or not hire you. But that may just be viewed as a regular part of today’s legal practice.
When it comes to establishing a policy about what a firm’s lawyers and staff can say on-line, most firm managers avoid a heavy-handed approach. Unless the lawyer or staffer wants to mention a specific client, the social media policies that most firms now have usually simply ask for the use of discretion and good sense, without stifling personal expressions of opinion — and that’s the way it should be.
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