Lawyers who are LinkedIn and friendly with Facebook face heightened scrutiny of their social media content. A growing body of guidance on the subject, though, is staking out some boundaries of what’s permissible and what may be a click too far.
“Certainly, people want to know things about what they can say about themselves and their practice online,” said John David Hoover, a partner at Hoover Hull LLP who frequently has been a continuing legal education presenter on the subject. “About everybody’s putting something (online) about their practice.
“People want to know, what are the parameters of what’s proper and improper?” Hoover said. “There are a variety of things you could say that could be problematic.”
Hoover has a simple rule for keeping himself safe online: “I don’t post things on social media that deal with my profession.”
That’s a fairly surefire way to avoid potential conflicts, but in the Twitter age when attorneys feel the pressure or the economic necessity to have a relevant social media presence, conflicts may be in the eye of the beholder.
The New York State Bar is considering revisions to its social media guidelines, which were among the first in the nation. One of the key proposed revisions states, “A lawyer cannot be competent absent a working knowledge of the benefits and risks associated with the use of social media.” It’s a broad statement that could have a range of implications not only for what a lawyer posts online, but in how an attorney uses social media as part of the practice.
Arend Abel, a Cohen & Malad LLP partner and chairman of the Indiana State Bar Association Ethics Committee, said there’s been no formal move to add social media language to the Indiana Rules of Professional Conduct. He said the New York guidelines appear to spring from the American Bar Association’s Ethics 20/20 working group that’s examining model rules. Among other things, that group has recommended that lawyers not use social networks for “real time” contact with potential clients.
“There are a number of legal opinions out there that suggest competency regarding relevant technologies are already implicit in the rules,” Abel said, so those existing rules such as RPC 1.1 regarding competence, would extend to social media. “There is not, as far as I’m aware, an opinion in Indiana addressing any aspect of social media as it relates to the practice of law.”
Examples from other states, though, provide some direction.
Rules, exceptions, expectations
Bingham Greenebaum Doll LLP attorney James J. Bell said other states have tailored ethics rules regarding social media, but he agrees those provisions are currently covered in Indiana’s Rules of Professional Conduct. “We have plenty of guidance on how to communicate with people, and that should include social media,” Bell said, pointing to Rule 1.4.
Still, “Social media is an easier way to commit a violation of the Rules of Professional Conduct in some instances,” he said.
But using Facebook, LinkedIn, Twitter or other social media to investigate potential jurors or witnesses is allowed. ABA Formal Opinion 466 provides this guidance regarding a lawyer’s examination of jurors: “Unless limited by law or court order, a lawyer may review a juror’s or potential juror’s Internet presence, which may include postings by the juror or potential juror in advance of and during a trial, but a lawyer may not communicate directly or through another with a juror or potential juror.” Attorneys also are forbidden from sending an access request such as a Facebook “friend” request to a juror.
The prevalence of social media is likely to create new expectations for attorney competence and effective representation. “I can foresee a court ruling in certain cases that a thorough investigation would include an investigation of social media evidence,” Bell said. “If you’re a litigator, a family lawyer or a criminal defense lawyer, you ought to have some understanding of social media because you may be missing out on evidence that could help your client.”
Can you say that?
Another potential pitfall of social media lies in posts a lawyer might make concerning a case, his practice, clients, the court or opposing counsel. Attorneys around the country have gotten in trouble for clearly over-the-line remarks that, for example, express racial animus or make untrue statements about a judge, Hoover and Bell said.
But less obvious comments also could be actionable. For instance, lawyers who use social media to tout their practices, case results or the like must be mindful of the advertising and self-laudatory rules (Rules 7.2 and 7.1, respectively). “Calling yourself the best, finest, most experienced — there are a variety of things you could say that could be problematic,” Hoover said.
Numerous other rules could be implicated in a careless status update. For example, would what you post violate Rule 3.6 regarding trial publicity? Would messaging someone touch rules 4.2 and 4.3 regarding communications with represented and unrepresented persons, or Rule 7.3 regarding contacting prospective clients?
“The easiest thing to do is violate Rule 1.6 when talking about your cases on social media,” Bell said, citing the confidentiality requirements.
“I think the Rules of Professional Conduct are such that they are totally relevant and apply to social media,” Hoover said. Lawyers should always ask themselves, “How do the rules affect what I’m getting ready to post?”
Friends with judges?
Hoover said a frequent question he gets in CLEs is whether lawyers may be Facebook friends with judges. It’s acceptable in limited fashion, some ethical guidelines suggest. The Supreme Court of Ohio, for example, ruled in December 2010 that a judge could be a Facebook friend with an attorney who appears before the judge, so long as the communication otherwise complies with the state’s Code of Judicial Conduct.
“If you’re communicating about your cat video, I think it’s a lot different than if you’re trying to influence the judge,” Bell said.
Nevertheless, some judges and attorneys resist social media connections, and some stay off social media entirely because they’re leery of perceptions which could possibly prompt complaints about ex parte communication.
Hoover said those perceptions are similar to objections sometimes raised when judges and lawyers socialize together or have some other common connection — belonging to the same club or serving on a committee together, for instance. Still, when it comes to social media posts between a lawyer and a judge, he said, “Anything you do and anything you post, you’d better be mindful you could see it in a motion to disqualify.”
It’s a frequent observation among lawyers that the increased use of email tended to coarsen communication, and social media use could have similar effects.
“There’s something about the keyboard and the distance that the computer and the keyboard creates between people,” Abel said. “People can forget their decorum and common sense.”
Hoover said the march of technology will present new questions. He envisions a possible future scenario in which an attorney uses facial recognition software to scan jurors’ social media and Internet presence. “Is it professional negligence to not pursue all of the available avenues if your opponent is doing so?”
As social media grows as a feature of daily life, attorneys say adherence to the ethical rules that apply in other areas will serve professionals well. “A smart-thinking lawyer is going to know how to use social media in order to protect himself or herself from disciplinary action,” Hoover said.
“I think ultimately we will work through these issues and find out a lot of the basic principals we’ve always used will work out,” Abel said. “There’s a lot of angst right now, but in five or 10 years we’ll look back and say, ‘What was the big deal?’”•