Lawyers sometimes forget that, as the American Bar Association has noted, we cannot “take off the lawyer hat” to circumvent ethics rules. Likewise, lawyers are not any less susceptible to discipline for ethics violations just because their conduct takes place on social media instead of the courtroom. These are important rules to keep in mind when using social media to attract clients:
1. Competence
Like everything we do, our first obligation when using social media is competence. As noted in DC Bar Ethics Opinion 370, lawyers must understand how the social media site operates—including privacy policies. Understanding whether posts are private or public is a must under Rule 1.1. And, keeping up with changes in how the social media platforms work is part of keeping up with your duty to stay apprised of relevant technology—see cmt. 8 to Model Rule 1.1.
2. Confidentiality
The American Bar Association Standing Committee on Ethics and Professional Responsibility reminds lawyers that they generally cannot reveal information relating to the representation of a client, even including information found in public records. See ABA Formal Opinion 480. The NYSBA points out in Ethics Opinion 1088 that even revealing the name of your client can be a violation of Rule 1.6 unless the client has given consent to such disclosure.
3. Duties to Former Clients
A lawyer who has formerly represented a client in a matter (or whose firm has formerly represented a client in a matter) cannot subsequently use information relating to the representation to their former client’s disadvantage. Likewise, absent an exception, lawyers cannot reveal information relating to the past representation. This rule holds firm even when a client makes case information known to the public.
A Colorado attorney was tasked with writing an investigative report pertaining to election expenses for a town council. A council member released the report to the media. After a series of events, the lawyer believed his character, work and reputation were under attack. To defend himself and disclose what he had learned about the public officials (something he thought was part of his civic duty), he took to social media. In doing so, he violated Rule 1.9 because some of his posts were derived from information he learned during the course of his former representation.
4. Duties to Prospective Clients
Lawyers regularly taking to social media to post about the law need to be careful not to provide legal advice. A court could determine that a prospective client was reasonable in their belief that an attorney-client relationship was formed due to the lawyer providing such advice. Then, all liabilities and duties would kick in under Rule 1.18—including malpractice. Disclaimers are particularly helpful here, but they may not be sufficient depending on the circumstances of the online interaction. Example disclaimers include “The information on this page is not legal advice” and “Visiting this page does not establish an attorney-client relationship”.
5. Unauthorized Practice of Law
One of the benefits to social media is that it can be efficient and far-reaching. But that can create pitfalls too because the flip side of being far-reaching is that lawyers do not know where the person they are communicating with over social media is sitting. Lawyers posting about general legal principles in one jurisdiction may be giving erroneous advice if applied to the law in another jurisdiction. There are no jurisdictional limitations on interactions. Not to mention that your post may be accurate in one jurisdiction but contrary to the law in another. Giving bad advice has many obvious downsides, but if you are using your post to solicit clients, those might include a charge that you engaged in the unauthorized practice of law. That violates Rule 5.5 in most states – and constitutes a felony in some states). Make sure that you disclose where you are licensed and where you are not licensed. Disclaimers on jurisdictional limitations can go a long way.
6. Communications Concerning a Lawyer’s Services
Lawyers must also be wary of post anything false or misleading about their services, lest they risk being disciplined for violating Rule 7.1. Obviously lying is wrong, but the threshold is much lower to violate this rule. Even omitting a fact could be a rule violation if such omission makes the statement misleading as a whole. As the Ohio Board of Professional Conduct asserts in Opinion 2016-08, lawyers should avoid nonverifiable communications about their legal services.
Depending on what lawyers post, the post could be considered legal advertising. See NYSBA Ethics Opinion 1251 and New York County Lawyers Association Professional Ethics Committee Formal Opinion 748. There are certainly jurisdictional differences for when a lawyer’s posting subjects them to their states Rules of Professional Conduct. See California Formal Opinion 2016-196. Lawyers should always be leery about using the words “expert” or stating that they specialize in a certain field. Many states have rules against using these terms unless the proper certification has been obtained.
7. Misconduct
The type of conduct that may not fall under other ethics rules but still may subject lawyers to discipline is found in Rule 8.4. Even when lawyers are not providing legal services, their general misconduct can land them in hot water. Examples include dishonesty, deceitfulness, or misrepresentation. Don’t pretend to be someone you’re not—especially to gain information for another client. See Colorado Ethics Opinion 127, which lays out the ethical parameters for lawyers seeking to use social media for investigatory purposes. Likewise, posts that are discriminatory or harassing in nature could be deemed ethical misconduct.