Ethical Issues Arise in Lawyer’s Use of Social Media

As with most of the population, the use of social media by lawyers in the conduct and marketing of their legal practices has been “trending” up.[1]  Although well-established ethical rules apply, some social media activity may introduce new twists to the rules’ interpretation or raise issues that a lawyer may not have considered before posting that tweet or blog.  There is growing attention to the ethical issues raised by lawyers’ use of these tools. Just recently, for example, the American Bar Association approved a number of changes to its Model Rules of Professional Conduct to address the impact of technology on the way lawyers work.[2]

The ABA’s Model Rules offer guidance, but are not binding on New York practitioners. As every New York lawyer should be aware, New York’s lawyers are subject to the state’s Rules of Professional Conduct (the Rules),[3] which have been in effect since April 1, 2009. The Rules directly, and by interpretation, provide guidance that applies to the evolving use of social media by lawyers. This column discusses some ethical rules that lawyers should consider when employing social media to “promote” their legal practice. However, it is worth noting that ethical determinations are always sui generis and the decision on how best to proceed in any given matter must be made by the attorney based upon the individual facts and circumstances that he or she encounters.

Confidentiality

Among the most valued principles in the attorney-client relationship is the precept that communications between a client and lawyer that occur during the course of the representation shall not be disclosed to the outside world.  Rule 1.6 provides that, subject to certain exemptions, a lawyer “shall not knowingly reveal confidential information.”  Comment 2 to the Rules states that it is a “fundamental principle” in the client-lawyer relationship that, in the absence of a recognized exception, “a lawyer must not knowingly reveal information gained during and related to the representation, whatever its source.”[4] Thus, the ethical prohibition against disclosure may be broader than the attorney-client privilege.

The obligation to avoid disseminating confidential client information in violation of Rule 1.6 is not altered simply because the potential mechanism of disclosure is an attorney’s blog, tweet, Facebook posting, or other social media activity.   Moreover, the way that people interact on social media may increase the risk of inadvertent disclosure. Much has been said about the nature of social media, including the fact that it encourages confessional, tell-all disclosure about the poster and offers a sense of anonymity that may be more of an illusion than reality. For these reasons, lawyers, wishing to express either their expertise or frustrations, may be more likely to inadvertently disclose confidential client information when using social media than otherwise.

Inadvertent disclosure can occur in a number of ways: Consider the attorney who posts about his or her day by complaining about a case that he or she has been working on for the past week; the lawyer who tweets a particularly funny comment about a client’s product that was made by an adversary’s witness at a deposition; or an attorney blog that discusses in “hypothetical” format facts regarding the client without disclosing the client’s name, but with enough detail that the client’s identity can be discovered.

Think that inadvertent disclosure cannot or does not happen? Not too long ago, an assistant public defender in Illinois lost her job for revealing confidential client information on her blog about clients who could be identified.[5]

Issues of confidentiality also can arise when communications are received from existing clients through the firm’s website or when lawyers are contacted by a non-client or prospective client via email or through the firm’s website. To address this challenge, many firms typically have disclaimers on their websites, blogs, and other interactive sites that state that a person who contacts a lawyer at the firm via the website or blog is not creating an attorney-client relationship.

Another particular challenge, in this regard, may be multi-participant presentations and inquiries that are offered by counsel, most commonly, but not exclusively, to potential or actual plaintiffs in class actions and mass torts.   In such cases, practitioners may simultaneously communicate confidential information through the use of social media to many actual and potential clients at once, as well as request that confidential information be provided to the firm in response, so that the firm may consider whether to enter the attorney-client relationship.  It is, however, worth noting that under certain circumstances, confidential information that is relayed to an attorney in anticipation of an attorney-client relationship being formed may still be subject to confidentiality protection even if the attorney is not retained.

Advertising

Rule 7.1 governs – and restricts – advertising by lawyers. The concept of “advertising” is quite broad. Although, as noted in Comment 6 to this rule, not all communications made by lawyers about the lawyer or the law firm’s services are advertising, lawyer advertising “consists of communications made in any form about the lawyer or the law firm’s services, the primary purpose of which is retention of the lawyer or law firm for pecuniary gain as a result of the communication.” That undoubtedly includes many communications that lawyers make using social media.

Because lawyers who advertise should be familiar with the ethical requirements, the fact that social media can implicate those requirements might not necessarily be a problem. However, as with many aspects of social media, new applications create new dilemmas in real life usage. It is therefore a best practice for lawyers and their firms to keep these requirements in mind and to ensure that all of their advertising – including online advertising and advertising through social media – complies with the rule’s requirements.

That may be relatively easy to accomplish on websites[6] and law firm blogs. But in other instances, it may be quite a bit more difficult, if not impossible. For instance, consider that Rule 7.1 provides that advertisements must contain disclaimers, depending on the advertisements’ contents, such as “Prior results do not guarantee a similar outcome”[7]  and “Attorney Advertising.”[8] Is it physically possible to include those disclaimers in tweets that are limited to 140 characters?

Solicitation

Recognizing that lawyers are using technology to practice law, Rule 7.3(1) specifically addresses technology-aided client solicitation. It provides that a lawyer shall not engage in solicitation “by in-person or telephone contact, or by real-time or interactive computer-accessed communication unless the recipient is a close friend, relative, former client or existing client.”

The rule broadly defines “solicitation” to mean any advertisement (as noted above, that term itself is broadly defined) that is “initiated by or on behalf of a lawyer or law firm that is directed to, or targeted at, a specific recipient or group of recipients, or their family members or legal representatives, the primary purpose of which is the retention of the lawyer or law firm, and a significant motive for which is pecuniary gain.”

A great deal of social media is “real-time or interactive computer-accessed communication.” Indeed, that is one of the characteristics of social media that makes it so enticing and so interesting. But attorneys who use these technologies and who communicate with people who are not close friends, relatives, or existing or former clients can easily run afoul of the Rule 7.3(1) prohibition if they are not careful.  One might doubt, for example, whether all Facebook “friends” are “close friends” for purposes of the rule.

A recent New York State Bar Association Ethics Opinion offered direct guidance on the topic.[9]  It opined that a lawyer is permitted to provide general answers to questions posed in interactive websites, such as chat rooms, but may not engage in solicitation of the individuals participating in the “chat” in violation of Rule 7.3.  Where an individual initiates a public request to retain the lawyer, the lawyer is permitted to privately provide a written proposal as to the retention, but may not post the proposal on the website so that it will not be available to those who did not initiate the retention request.

Another recent question to the New York State Bar Association is likewise emblematic of the creative use of social media and the willingness of the Bar to extend its interpretations of the rules so as to not quash that creativity.[10] An attorney inquired as to his proposed plan to offer a “prize” as an incentive to join his network of connections on Facebook, LinkedIn, and MySpace. Although the prize was not specified, the Committee assumed that it would be awarded randomly and that it was legal, although it did caution the inquirer to examine the law on the topic, including the prohibition against online gambling. 

The Committee’s first step in the analysis was to determine whether the proposal would be “advertising” under the Rules. It concluded that if the prize was awarded to anyone who simply connected to the inquirer’s social networks, without retaining him, it would not likely to be considered an advertisement even if the inquirer was later identified in social media as an attorney.  However, it would be an advertisement if the prize offer itself described the inquirer as an attorney or his legal services or law firm, and therefore subject to the requirements and disclaimers set forth in the Rules.

Having concluded that the proposal could be an advertisement, the Committee next analyzed whether the advertisement was a “solicitation.”  It noted that a solicitation, under the Rules, must be “targeted” to a specific individual or group, including through “computer-accessed communication,” where pecuniary gain is a significant motive. However, the Committee recognized that under Comment (9) to Rule 1.3, “[o]rdinary email and websites are not considered to be real-time or interactive communications” for purposes of the solicitation rules. The Committee discussed that the purpose of the solicitation rules was to provide extra protection regarding “in person” solicitation, because of, inter alia, the risk that a trained advocate could overcome the will of a hesitant client. The Committee determined that the risks inherent in “in person” solicitation would be lacking as to the inquirer’s proposal were he simply to invite individuals visiting his social media page to connect with him to be eligible for a prize. However, if the inquirer intended to send “targeted” invitations to identified individuals or groups of individuals, it would be a “solicitation,” and subject to heightened disclosure requirements, even if the individuals so targeted were already part of the inquirer’s social networks. [11]

Conclusion

Lawyers certainly may use social media tools to help practice law and to help develop and expand their practices, and much has been written recently explaining how to do so in an appropriate and ethical manner.[12]  A number of ethics opinions in New York also help guide the way.  However, many social media challenges are, as yet, uncharted or even yet to be discovered.  Therefore, a lawyer’s course may depend on interpreting the “signs” from analogous circumstances. One thing is clear, however:  There are ethical risks that lawyers must carefully navigate to avoid becoming ensnared by the drawbacks presented by these new technologies, rather than aided by their benefits.