Social media continues to take the world by storm. Millions of people interact on websites like Facebook, Twitter, and LinkedIn every day. In fact, more people log onto Facebook than Google. Real time information updated on social media sites is quickly becoming a trusted source for up-to-the-minute news. It therefore comes as no surprise that social media is having a profound impact on the law as well. As more people turn to social media for online interaction, websites like Facebook and Twitter are increasingly affecting the legal, ethical, and marketing aspects of the law.
Millions of Internet users log onto social media sites every day to chronicle their personal and professional lives. These sites create a virtual gold mine of potential legal liability and discoverable information that may have a devastating impact on the outcome of litigation. One of the first lawsuits to be filed over social media activity involved singer Courtney Love, who was sued by her former designer for defamation concerning alleged libelous statements posted by Love on her Twitter account. Love’s tweets were allegedly “published” to her 40,000 Twitter followers, and set the stage for the world’s first well-known social media suit. In addition to creating new avenues for legal liability, social media content also has significant evidentiary value in the courtroom. Most recently, prosecutors in the now famous Casey Anthony litigation offered a potential juror’s Facebook post as grounds for a preemptory challenge. Prosecutors were able to establish a juror’s bias against police officers by referencing the juror’s Facebook post following a prior car accident exclaiming “cops in Florida are idiots.” This colloquy provides only one example of how attorneys are finding a treasure trove of discoverable information on social media sites to establish their cases.
Social media creates unique ethical concerns too. In the context of gathering evidence, many states across the country are releasing ethical opinions on the recent practice of collecting evidence from social media sites. Specifically, courts are recognizing the ethical implications of an attorney who seeks access to information located on an unrepresented witness’s social media profile. While no hard and fast rule has emerged, many states have cautioned against using “deception” to access an unrepresented party’s social media page for use in litigation. At least one ethics opinion cautions that an attorney may instruct his or her paralegal, investigator, or other agent to “friend request” an unrepresented party on Facebook in an attempt to surreptitiously gain access to that party’s online information. Similarly, attorneys must be mindful that even though social media is a new medium, that does not make it an unregulated medium. The same rules of professional conduct that apply to traditional means of communication also apply to social media. Professional rules of ethics therefore govern an attorney’s ability to advertise, communicate, and solicit potential clients over the Internet.
Mindful of the ethical implications of social media marketing, attorneys and law firms are becoming more aware of the powerful impact of social media to promote their practice. In the past, attorney networking traditionally occurred at bar association events, professional networking groups, and on the golf course. Today, these traditional notions of networking are enhanced by an attorney’s ability to reach a broader audience through emerging social media technologies. Online networking sites provide attorneys with the ability to strengthen professional relationships through more frequent contact, connect with a wider range of potential referral sources, and afford attorneys the opportunity to educate the public and empower clients in their trusted area of law. For example, 78 percent of the AmLaw 100 firms now have a presence on Twitter. Well-known firms are actively using Twitter to update followers about their firm, the law affecting their practice areas, and sharing articles and blog posts of interest. Other attorneys have found a home on LinkedIn – participating in discussion forums addressing their areas of law. Regardless of which social media site attorneys find most useful to their networking, it is becoming clear that more attorneys each day see value in their time investment into social media marketing.
Regardless of whether you believe social media marketing is appropriate for your practice, it is hard to ignore its impact on the legal industry. New legal and ethical issues involving social media are arising each day. And with more and more people turning to social media for their online interaction, it is only a matter of time before attorneys learn how social media will impact the legal industry in the future.
Ethan Wall, a member of the 2010-2011 Meritas Leadership Institute, concentrates in complex commercial and intellectual property litigation with an emphasis on the Internet and social media with Richman Greer, P.A. You can connect with him on Facebook, Twitter, or LinkedIn – or comment on his blog, Social Media Law & Order.