The District of Columbia Bar just issued two lengthy opinions that attempt to comprehensively address social media issues facing lawyers. The first deals with using social media for marketing and personal use, while the second discusses the use of social media in providing legal services.
Here are some key takeaways about two social media ethics pitfalls you should learn to avoid, regardless whether you are a lawyer in D.C. opinion applies to you.
Review Your Social Media Services for Their Commitment to Privacy and Confidentiality
It is easy to find yourself starting a conversation with a prospective client via in-app communication tools like Facebook or LinkedIn messages when someone finds you through those services. It is important to remember, however, that those services have no particular commitment to privacy, confidentiality, or retention of communications.
Messaging and electronic mail services provided by social networking sites may lack safeguards sufficient for communicating with clients or prospective clients. Moreover, the messaging and electronic mail services provided by these sites should not be assumed to be confidential or private. … Social media sites may not permanently retain messages or other communications; therefore care should be taken to preserve these communications outside of the social media site, in order to ensure that the communications are maintained as part of the client file.
Facebook has a veritable thicket of privacy settings, and you should review them often because their terms change frequently. Additionally, it is unclear what information would be shared if Facebook were to be subpoenaed. It also isn’t clear how long Facebook retains any communications.
On the other hand, if you’d like to engage in some super-secure communication, you could do worse than Facebook Messenger, which now allows you to opt-in to complete end-to-end encryption, which you should probably be using for client communications whenever possible, anyway. (Signal is also an excellent tool for this.)
LinkedIn specifically says it does not retain any data, including messages, once a member deletes their profile. That’s good and bad, obviously. It is good to know that things may get memory-holed and are therefore irretrievable by law enforcement, but it isn’t great if you’ve used the service to discuss client matters and now have no record of those communications.
Auto-Importing Your Contacts Is a Terrible Idea
Pretty much every social media service out there would like to scrape your contacts when you sign up. In theory, it is meant to make things easier for you—you can find out which of your friends and business connections are already on there—but actually it is just a way for a social media service to vacuum up a bunch of contact information, which is a bad idea.
Aside from any data collection purposes, this access allows the social media site to suggest potential connections with people the lawyer may know who are already members of the social network, to send requests or other invitations to have these contacts connect with the lawyer on that social network, or to invite non-members of the social network to join it and connect with the lawyer.
Always say “no” to the auto-import. You can invite your friends or colleagues one by one if you want to connect with them via a social media platform.
Remind Your Client about the Need to Preserve Social Media Data
People change things on social media all the time. They delete tweets, make their Facebook posts more or less visible, and add and remove skills from their LinkedIn profile. However, if you are gearing up for (or already in the middle of) litigation, it is critical to remind your client that they may be obliged to keep their social media profiles intact for the duration.
Because social media postings are subject to discovery and subpoenas, a lawyer may need to include social media in advice and instructions to clients about litigation holds, document preservation, and document collection. A lawyer also may need to determine whether under applicable law, which varies from jurisdiction to jurisdiction, clients may modify their social media presence once litigation or regulatory proceedings are anticipated.
This isn’t just theoretical. Earlier this year, a plaintiff was dinged for changing her Facebook privacy settings mid-litigation.
Bottom line: the ethics of using social media involve you understanding what you are signing up for when you use those services, including messaging, so make sure you know the ins and outs of the service you’re using.