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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. Applause, applause, applause ..... but, is this duty to serve the constitutional order not much more incumbent upon the State, whose only aim is to be pure and unadulterated justice, than defense counsel, who is also charged with gaining a result for a client? I agree both are responsible, but it seems to me that the government attorneys bear a burden much heavier than defense counsel .... "“I note, much as we did in Mechling v. State, 16 N.E.3d 1015 (Ind. Ct. App. 2014), trans. denied, that the attorneys representing the State and the defendant are both officers of the court and have a responsibility to correct any obvious errors at the time they are committed."

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