Survey: Attorney social media use largely governed by personal responsibility

December 2, 2015

Bloomington personal-injury lawyer Betsy Greene is active on Facebook, Twitter and other social media, but she doesn’t worry too much about what she posts.

Greene Greene

Her firm, Greene & Schultz Trial Lawyers, has no formal social media policy, in line with the most frequent response from attorneys surveyed by Indiana Lawyer. But she does have a principle that guides her before she hits the “post” button.

“My rule of thumb is that if I don’t want to see it above the fold on the front page of the Herald-Tribune, I don’t put it up there,” Greene said.

Use of social media, blogging, and creating an Internet presence can be a key asset and source of marketing and client outreach for attorneys. But it also can be perilous when a comment brushes against the Rules of Professional Conduct.

“That jumped out at me,” Indiana Chief Justice Loretta Rush said of the 46 percent of attorneys who answered in the survey that their organization has no social media policy. That compares to 37 percent of respondents who said their firm or organization does have one in place.

“When I saw most organizations did not have a social media policy, and given that I spend time each week doing attorney discipline cases, I wish more people had social media polices,” she said during a panel discussion Nov. 18.

Rush said more and more lawyer disciplinary cases arising from social media are coming before the Indiana Supreme Court. She said her background as a former juvenile court judge has been helpful at times in such cases that often involve disclosure of confidential client information or questionable online comments directed at opposing counsel or parties.

Many of these cases are handled with a private caution and never rise to the level of public disclosure, she said. “It has gotten a lot of attorneys in trouble.”

And it’s not just inexperienced attorneys who’ve gotten in trouble. Consider these recent cases:

• Chicago Barnes & Thornburg LLP attorney Vincent “Trace” Schmeltz III made news for taking photos of exhibits in a federal court case and posting them on his Twitter account, along with descriptions and analysis of the evidence, according to the Chicago Tribune. Schmeltz, who was a spectator, removed the posts from his Twitter account but still faces possible sanctions. Barnes & Thornburg did not reply to a message seeking comment.

• Minnesota Senior Judge Edward Bearse was reprimanded for posting comments on Facebook about trials he was overseeing, the ABA Journal reported.

By a more than 2-to-1 margin, attorneys who responded to the IL survey said their organization encourages them to promote themselves and their firm or organization, compared to those who said their organization discourages social media.

seamus-boyce-mug.jpg Boyce

Noblesville education attorney Séamus Boyce of Church Church Hittle & Antrim began tweeting several years ago during his term as public relations committee chairman for the Indiana State Bar Association.

“I made a point I was going to try it out,” Boyce said. His @SchoolCounsel Twitter handle now has more than 800 followers.

Boyce said his firm has no social media policy, but it uses a Twitter account to share announcements. Lawyers at Church Church Hittle & Antrim are encouraged to post appropriate content on personal accounts.

He doesn’t post anything that could be considered legal advice, and he tries to keep content focused on current events and trends related to his practice area, court decisions and promoting events involving himself or his firm.

“I don’t tend to do anything that I think will be perceived as controversial,” Boyce said. “I don’t think it’s necessary. You can still have a good public dialogue with your colleagues, and I like to think of it as another means of professional development.”

As an education attorney, Boyce said social media is a hot topic. He’s handled cases in which school employees have made postings perceived as inappropriate. Bullying and harassment on social media also is a common concern, and Boyce said he uses social media to explore these issues and the limitations of the First Amendment in school settings.

merker Merker

Attorney Nick Merker co-chairs the data security and privacy practice at Ice Miller LLP and said the practice group recently launched a Twitter account to promote conferences where attorneys are presenting as well as information of interest to clients and peers.

“We are relatively new and we’re trying to build a set of followers and trying to use social media to get our name out there,” he said. “For us it’s marketing, but it’s also a good way for us to let people know we’re in that practice area.”

Merker said several Ice Miller practice areas post on social media, and the firm screens posts before they appear on Ice Miller accounts. He said the firm encourages its attorneys to be responsible on social media.

He noted computer company Dell’s model as one that could be suitable for larger law firms. The company doesn’t permit its employees to post content until they have passed courses.

“Law firms really aren’t that much different from private companies when it comes to concerns over social media,” Merker said. “Empowerment is something law firms can do.”

But Merker and other lawyers believe there are things firms can’t do.

“I do not believe a social media policy that says your employees cannot use social media is going to fly anymore,” he said. “Building a social media policy that doesn’t go toward empowerment of employees, I think, it’s the wrong one.”

Greene said she’s careful about posts she makes even on her private, non-professional Facebook page, where she may sometimes share personal or political content.

“Really, we never stop being lawyers,” she said. “Somehow, on social media, people think the rules don’t apply. … I would argue it counts triple-fold. This stuff lives with you forever.”

But Greene said it’s also important for clients to understand the impact their posts can have on pending cases. She informs clients to refrain from posting about their cases. Defendants can see those posts and potentially use them as evidence.

More than 1,000 people follow Greene & Schultz’s posts on Facebook, and Greene said the firm also uses Google+ to solicit feedback from clients.

“It’s very important to be out there, on Facebook, on Twitter, on Google+,” she said. “All those things go to your Web presence. If people click through and go to the website, it’s going to raise your Internet profile.”

Depending on an attorney’s practice, however, even a seemingly innocuous post might be cause for concern, Merker said.

He used the example of a mergers and acquisition attorney using a check-in and location website to share a traveling location and duration of stay. Someone who knows the lawyer has a particular client in that location may glean something.

“That could disclose, inadvertently, information about that client and why you’re there,” Merker said.•


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