Top 5 Social Media Ethics Concerns for Lawyers

The people in charge of lawyer ethics oversight in your state see social media either as just another form of communication, or as a special threat to client confidences and attorney decorum. Do you know what rules apply to you?

The basic premise that traditional ethics rules should govern social media seems sound. But some states, like Florida, have decided to pull out online communication as needing special regulation. Here are five areas of concern for lawyers using social media. Regardless of your state ethics committee’s stance, consider taking some time to re-learn the local rules.

  1. Social Media Use is Governed by Advertising Regulations
    Review your state’s rules of professional conduct. There are likely restrictions on real-time prospective client communications. Think about how you use Twitter, or Facebook chat, or GTalk. Would these fall within the rule? If so, and if you’re using these channels to solicit clients, motivated by pecuniary gain, the people you’re chatting with better be 1) lawyers, 2) family, 3) close friends, or 4) professional relations (remember, these elements vary by state). If the communications with prospective clients aren’t realtime, consider if your posts to particular social media platforms should conform to advertising rules that might include labeling the communication with the words “Advertising Material.” For some great platform-specific considerations about lawyer marketing online, see Leora Maccabbee’s post here.
  2. Beware of Unauthorized Practice of Law
    In some cases, you might communicate with someone in a way that inadvertently creates and attorney-client relationship. If so, you may give advice or provide other services that would be considered practicing law in some states. Many states have fuzzy definitions of legal practice, but every state regulates who can practice law and under what circumstances. If you advise someone in another state, where you aren’t licensed, you may open yourself up to claims of unauthorized practice.
  3. Location-based Services Could Violate Client Confidentiality
    Geotagging tweets or using services like Foursquare might get you into hot water if you post anything that might be connectible, perhaps even to just a few interested parties, to a particular case or client. What seem at the time like general statements about the strength or weakness of a claim or legal theory might give away too much if the other side knows when or where you might be meeting with your client.
  4. Social Media Use in Case Investigations: No Pretexting
    Most of the time, using misleading tactics to gain information about a case is prohibited. “Pretexting,” or using a false or misleading justification as a pretext for uncovering info for a lawsuit, can get you into hot water. Don’t think it’s ok to “friend” someone online, or ask someone else to friend someone online [pdf] so you can gain access to that person’s private profile data.
  5. You Read Contracts — Are You Reading Your Terms of Service?
    Every social media service has user terms of use. Have you read them? It’s certainly unlikely that a service provider’s terms of use will be used against you, but step back and consider if you’d be happy with the choice of law, indemnification, and many other standardized terms these contracts require when you activate and use an account. Based on these concerns, the federal government is amending social media terms of service to meet its needs.

For more social media ethics considerations, see: Debra Bruce’s post over at Build a Solo Practice @ SPU, Ethic Tips for Lawyers Using Social Media from Bottom Line Law Group [pdf], Audio of ABA’s Beyond the Ethics of Web 2.0 — What’s Now, What’s Next, What If, and Q&A: Lawyers, Ethics and Social Networking at WSJ Digits Blog.

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