Ethics of Social Media for Lawyers

How are lawyers to negotiate the ethical minefield of social media? Is it worth it for lawyers to engage in social media, or does it make more sense to just stay away and avoid any potential problems?

This month’s ABA Journal included an article by Steven Seidenberg entitled Seduced, discussing the potential dangers for lawyers using social media.

Blogger Kevin O’Keefe picked up on the article in his blog post, Is social media for lawyers as dangerous as the ABA Journal implies? O’Keefe’s post opines that the article and many  journalists sensationalize the issue or create controversy to gain readership. He also notes that the stories such as those cited in the article (discussed in more detail below) are few and far between, and that hundreds of lawyers use social media regularly without incident.

Let’s examine both the ABA article and the issue a bit more closely. Certainly, there are ethical pitfalls of which lawyers should be aware when using social media. But many of these pitfalls can be avoided by a simple familiarity with the ethical rules in your jurisdiction governing advertising, marketing and solicitation.

The examples included in the article include:

1. A Florida lawyer who posted a blog post complaining about a judge’s conduct in the courtroom and describing the judge as ‘seemingly mentally ill’ and ‘unfit for her position,’ and implying that the judge was not neutral;
2. A North Carolina judge who engaged in a conversation on Facebook with a lawyer ‘friend’ in which they discussed a pending case for which the lawyer was appearing in front of the judge; and
3. An Illinois assistant public defender who blogged about cases she worked on.

While there may be areas of social media which remain open to interpretation and may require additional clarification, none of the above instances fall into that category. A review of the ethical rules with a common sense interpretation would lead to the conclusion that the conduct was impermissible – having nothing to do with social media itself.

In the first instance, the Florida rules include a rule prohibiting false or reckless statements regarding the qualifications or integrity of a judge. While reasonable minds may differ about whether it is ethical or adviseable for judges to be ‘Facebook friends’ with lawyers who appear in front of them in court, it is not at all unclear that ex parte conversations (even brief ones) relating to a pending matter are impermissible. And publicly discussing pending cases and revealing client confidences is a basic tenet of lawyer ethics.

The fact that the statements in each of the above cases were made on social media rather than in more traditional media (or in person) does not change the application of the rules. If the public defender had discussed pending cases openly in a bar, would there be any question about whether her conduct violated the ethical rules?

If the lawyer and the judge in example #2 had a discussion about the case at a bar association function or over the telephone, would the outcome be any different? And what about calling the judge ‘mentally ill’ – had it been done in a newspaper editorial or letter to the editor, would the Bar have looked the other way?

The answer is of course not. Let’s not blame social media (or blame the lack of specific rules addressing social media) for obvious blunders like these.

A simple rule of thumb when ethical questions regarding the use of social media arise: Change the media and ask yourself the same question. If you couldn’t say the same things in a room full of people, on a crowded bus, in a newspaper editorial or on the telephone, don’t say them on social media.

Comments

[Bankruptcy Lawyer Chris Ariano]

I am fascinated at how quickly the marketing opportunities for lawyers have changed. My father, who also opened his own law firm, describes a scenario in which lawyers found clients only through word of mouth. That being said, I agree with you that people need to realize that the internet is a public forum.