The Internet and social media are constantly disrupting industries—sometimes for the better, sometimes not. For most people, the penalty for taking a misstep online is merely embarrassment. For lawyers, however, the penalties can be quite severe, and can include fines and public censure.
In order to stay on the right side of the law, below are a few of the main things lawyers must remain aware of when it comes to social media. Keeping these developing issues in mind will help you safely navigate the exciting opportunities presented by social media outlets.
The more friends and followers, the better, right? Not if you’re a lawyer. In certain states, judges and lawyers are explicitly forbidden from connecting on social media, while in other places the general “appearance of impropriety” rule governs connections. To ensure that your profile is clean 1) review ethical rules in your jurisdiction, 2) analyze your current connections to ensure that they’re compliant, and 3) always think carefully before connecting with someone.
One of the most important things to remember when you’re online is that existing rules may extend to cover new activities. Case in point: if you make a social media post that constitutes an advertisement, it must comply with the lawyer advertising rules in your jurisdiction. Even something as simple as, “Another great victory in court today! My client is delighted. Who wants to be next?” can lead to an ethical rule violation.
In fact, under rules prevailing in California, that very statement is considered to be a “communication” concerning the lawyer’s, “availability for professional employment.” As such, it must carry an appropriate disclaimer and otherwise comply with lawyer advertising rules.
Much like seemingly innocuous statements that may constitute “advertisements” on social media, criticisms of judges, lawyers, or other parties can lead to problems for lawyers. For example, a Florida defense attorney once spoke out in a blog regarding practices he thought constituted judicial misconduct.
The Florida Bar concluded, however, that he had violated rules prohibiting 1) “false or reckless statements regarding the qualifications or integrity of a judge” and 2) “engaging in professional conduct that is prejudicial to the administration of justice.” In the end, he received a public reprimand and a $1,250 fine.
As you know, lawyer-client confidentiality should always be respected, and nothing subject to its coverage should be shared publicly on social media. Merely “connecting” with clients through social media, however, presents more subtle issues. Most importantly, lawyers should avoid using their personal Facebook or Twitter pages as platforms for making client connections.
Lawyers may still use social media profiles as marketing tools, however, and seek to cultivate new business by meeting prospects using social media pages. But if they choose to do so, they should do it using firm or practice profiles that are kept separate from their personal profiles. It makes social media efforts more effective, and avoids the complications that result when personal and professional worlds overlap.
Unless otherwise mentioned, the governing jurisdictions in the above-referenced post are United States jurisdictions.
Chelsea Wilson is the Community Relations Manager for Washington University School of Law’s online LL.M. degree program, @WashULaw, which provides foreign trained attorneys with the opportunity to earn a Masters in Law degree from a top-tier American university from anywhere in the world. Join the @WashULaw Community on Twitter.