Social media allows everyone to instantly share whatever they’re thinking with the world but given the many heated issues we face every day, we can sometimes lose ourselves in it all and post something in anger or passion, which may lead to regrets down the road.
Things become especially difficult for attorneys, who may sometimes view their presence on social media websites to be in a personal capacity. The reality, though, is that the line between personal and business can be blurred, if it even exists in the first place. When it comes to an attorney’s ethical obligations, it may not mean much to claim that you were acting in your personal capacity and not as a lawyer when you violated an ethical rule.
Understanding the complex situations social media may put a lawyer in, the State Bar of California issues a Formal Opinion back in 2012 (State Bar of California Formal Op. No. 2012-186) regarding the interplay between content published on a personal social media page and the ethical rules which govern attorney advertising. The issues discussed involved an attorney’s posts on his personal profile which highlighted their successes on cases, posts along the lines of “Another victory in court today, my client is very happy!” The California Bar decided that even when such things are published among posts relating to an attorney’s personal life, they still constitute solicitation of clients of otherwise “concern[ed] the availability for professional employment,” meaning they still have to comply with the rules for attorney advertising.
Additional potential issues may be exacerbated by social media, such as the potential for “positional” conflicts. This type of conflict typically exists where, for example, an attorney argues for a specific interpretation of a statute in one lawsuit in order to benefit his client, and then argues for an opposite interpretation in another lawsuit in order to benefit another client. Beginning with November 1st, 2018, Comment 6 to Rule 1.7 of the California Rules of Professional Conduct provides that this type of circumstances does not typically create a conflict which requires clients’ informed written consent unless certain factors are present.
It is, however, less clear how positional conflicts function when talking about positions taken on social media. Comment 4 to Rule 1.7 provides that conflicts of interest which require informed written consent exist “if there is a significant risk that a lawyer’s ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer’s other responsibilities, interests, or relationships, whether legal, business, financial, professional, or personal.” There has been at least one other bar association to state that attorneys who share information on social media websites should be cautious “when stating positions on issues, as those stated positions could be adverse to an interest of a client, thus inadvertently creating a conflict” (District of Columbia Bar Ethics Op. 370).
Some have suggested that the D.C. Bar’s opinion goes a little too far to limit attorneys, but social media posts can cause complications in client relations even if they do not necessarily rise to the level of a traditional conflict of interest. Let’s discuss a few tips for avoiding potential issues when using social media as an attorney.
A Neutral Point of View
Social media tends to not be a place where people offer balanced and well-reasoned assessments of issues. Many use the platforms to express visceral reactions to news events and while lawyers may feel the urge to immediately go ahead and share their thoughts with the world, they do it at their own risk.
For example, if Congress is debating passing a law which may impact a client, a lawyer may want to offer their opinion on said law without considering whether their position is aligned with their client’s. Even if it doesn’t create an actual conflict, the client may still feel displeased to see that their law firm is advocating for a position that may harm their business or financial interests.
Commenting on ongoing cases can also be risky, but lawyers can avoid risks by not taking a definite stance and instead present a balanced analysis. This might help avoid any potential conflicts with their clients’ interests.
Avoid Any Unprofessional Conduct
Lawyers generally understand that their correspondence and briefs should be consistent with the level of decorum that is expected from a member of the bar, but it happens often that that level of decorum is disregarded on social media. Despite the informality of social media, lawyers should not see it as a free zone for unprofessional conduct.
A good way to prevent any inappropriate comments would be to ask oneself whether it would be appropriate to make a specific comment if they were standing outside the courtroom or at a dinner party, for example. Lawyers will often post comments that they would not say in a face-to-face conversation, especially with a client.
Social media comments are in some ways worse than face-to-face conversations, as they are broadcast to a far wider audience and are preserved for posterity. Courts and bars have started taking increased notice of these issues and they are applying the same rules to social media as they do to traditional legal correspondence.
Think Before You Speak
Before posting an opinion on any substantive issue, it’s always a good idea to stop and think practically about your post and any possible responses from your firm, clients, and potential clients. When in doubt, it would probably be best to run the post by a colleague to ensure that it doesn’t create any unwanted situations.
Too often, though, lawyers don’t consider these things and they just let their emotions take over. While lawyers can use social media to effectively establish a presence in their community or in a certain practice area, using it in an undisciplined way can create the wrong kind of presence very quickly.