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Social media presents fine line

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As social media is becoming more accepted as a way for professionals to network and promote business, some attorneys are slowly getting their feet wet, while others have decided to dive in head first. And still others have decided to just wait and see what happens.

To help navigate the waters of social media – including ethical issues specific to attorneys – and how it can help with business development, the American Bar Association has recently published “Social Media for Lawyers: The Next Frontier” by Carolyn Elefant and Nicole Black.

Black-Nicole-mug Black

Black, an attorney and legal blogger based in Rochester, N.Y., told Indiana Lawyer that she and Elefant, also an attorney and legal blogger who practices in Washington, D.C., wrote the book for anyone who wants to use social media in their practice.

The book’s chapters are organized so that beginners can get enough information to get started, while attorneys with more experience in social media can skip around depending on what they need to learn. One chapter that is relevant to all attorneys on social media addresses ethical considerations.

While attorneys seem to be at different comfort levels when it comes to using social media for business development, Black, as well as two Indianapolis attorneys who are part of Ice Miller’s practice area that includes social media, said the main thing is it simply can’t be avoided just by ignoring it.

For instance, if attorneys fear negative reviews, the book explains if an attorney takes a pro-active approach in social media, there will be other ways for prospective and current clients to find information about the lawyer other than those negative reviews and comments.

“I’ve been saying this for years, but social media won’t go away. You need to have a strong online presence because clients are already on there. Even if you choose not to have a presence, if you don’t start now, you’ll get to a point where you won’t be able to catch up. … It’s an extension of the real world, not just a fantasy land,” Black said.

But when it comes to reviews, as with other online mentions of an attorney, lawyers need to be aware when or if disciplinary actions could result. For instance, positive reviews could lead to disciplinary actions depending on where the reviews appear and what they say.

Soofi-mug Soofi

For instance, the South Carolina Bar Association issued an opinion in 2009 that said third-party sites for reviews would be considered beyond the lawyer’s control, the book said.

The book also references an article on the Ethics Guru Blog where Virginia Bar ethics counsel Jim McCauley said comments on social networking site LinkedIn from a client that said something to the effect of “best personal injury lawyer in town” would violate that state’s rules “because it is a comparative statement that cannot be factually substantiated.”

The book also mentioned that lawyers should be careful when reviewing or endorsing other lawyers, and the best way to do so is to be transparent and, again, be aware of the rules of professional conduct.

Black said because rules already exist regarding marketing and advertising, that is likely why states haven’t started updating their professional conduct rules to reflect social media.

“Ethical rules apply online and off line,” Black said. “The rules don’t change just because you’re using a different medium to communicate. Attorneys need to be aware of their ethical obligations, and they need to make sure they apply the same ethical standards. … Even if it’s a less formal medium than you’re used to.”

For example, she said, attorneys who use social media need to consider if what they’re doing online could be considered soliciting clients.

Wukmer-Michael-mug Wukmer

Soliciting clients “is something that is prohibited under ethical rules,” said Mike Wukmer, a partner in Ice Miller’s Internet, Technology and Social Media practice group.

“The use of social media could cause a lawyer to cross that line. Some of the issues that lawyers have to deal with include how attorney-client relationships are created, and they need to be careful about giving advice online. The second issue would be trying to find new clients or information about new clients through social media. This can create situations where you … might be talking with people who are adverse to the firm or speaking with an opposing party or a judge on a case, and those kinds of conflicts can be created inadvertently.”

Such communication is also addressed in the book, including examples of where this has come up in other states. For instance, in Florida in December 2009 there was an ethics decision that said judges and lawyers can’t be Facebook friends, Black said.

“Also, lawyers are under strict duty to be truthful, and lawyers that might either themselves or use a third party to gain info on adversary or prospective clients have to reveal their true identity so it doesn’t look like there’s some surreptitious activity going on,” Wukmer added.

He also said that even if lawyers think they are safe under their own state’s rules of professional conduct, they need to realize that by posting something online, it could be viewed by people from all over the country. Because it’s not simply an ad in a local newspaper or TV station, having something online could have broader implications than the attorney might realize.

Rabeh Soofi, an associate in Ice Miller’s Internet, Technology and Social Media practice group, said attorneys also need to consider that what goes up on the Internet is permanent.

“If you state your opinions about a case, the best way to make an argument, or feelings about how a judge ruled on a particular case, if someone is making comments online instead of verbally … those comments can’t be taken back,” she said. “For instance, on Facebook’s terms of usage, which sometimes changes, there is discussion about how comments made on Facebook are the property of the provider,” meaning Facebook may store those comments even if they’re seemingly no longer visible.

Black compared this to saying something at a cocktail party. Even if a lawyer did provide legal advice or solicit a client at a party, it’s a lot more difficult to prove than if they did so online.

Soofi added that this could be seen as worthy of a disciplinary action, even if the attorney, judge, case, or client isn’t named in the comment, so attorneys should be aware of this as well.

But even with some of the issues attorneys need to be aware of, Black, Soofi, and Wukmer agreed social media is an overall positive addition to networking for attorneys.

Wukmer said social media can help locate industry groups, such as LinkedIn’s groups for professionals with special interests, such as higher education, agriculture, and health care.

“The groups can be used to help identify contacts, help learn about specific issues that are important to people in the industry groups, and also to gain an audience in terms of any message you want to disseminate to individuals in that group,” he said.

Soofi said social media can also increase goodwill by promoting personal relationships.

“When you have a friend on Facebook,” she said, “whether that’s a client, attorney, or judge, you can learn things about them you may have never learned even after working with them for years.”

She said things like children, hobbies, and birthdays could be found and discussed on social media to promote personal relationships with clients

So even if attorneys or businesses may fear social media, if they follow ethical rules and take advantage of what social media has to offer, ultimately they will be rewarded for their efforts, Wukmer said.

More information about the book is available on the ABA’s website, www.abanet.org/abastore, and the product code is 5110710. More about social media for lawyers is available on Black’s blog, http://21stcenturylaw.wordpress.com or on Ice Miller’s tech blog about internet and social media issues, www.theiceloop.com.•
 

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  1. I grew up on a farm and live in the county and it's interesting that the big industrial farmers like Jeff Shoaf don't live next to their industrial operations...

  2. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  3. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  4. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  5. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

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