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Ethical and Liability Risks Posed by Lawyers' Use of Social Media

By Merri A. Baldwin – July 28, 2011


Social media has excited a frenzy of interest from politicians, would-be revolutionaries, corporate risk managers, and the legal community. Estimates suggest that over 85 percent of younger lawyers use social media and that the percentage of older attorney users is not far behind—and both user groups are growing every day. See, e.g., the survey of lawyers’ use of technology done by Lexis/Nexis in 2009. As attention focuses on the ways attorneys may use social media to grow their practices and conduct the practice of law, concerns about ethical violations and liability escalate. This article will examine recent developments concerning lawyers’ use of social media and will suggest some practical ways in which lawyers can limit their risk as they increase their social media presence.


Social Media Use by Lawyers
Increasing emphasis is being put on the usefulness of social media as part of a marketing effort for lawyers and law firms. In fact, a significant consulting industry has emerged for the sole purpose of assisting lawyers in using social media more effectively as a marketing tool, usually as part of a coordinated platform of outreach involving numerous social media as well as other forms of marketing efforts. The most prevalent forms of social media used by lawyers are described below.


Blogs
There are literally thousands of law blogs (i.e., blawgs). Many new blogs are launched every day by law firms and individual lawyers, most focusing on specific areas of law or types of practice. The ABA Journal maintains a blawg directory organized by subject matter (there are a total of 116 categories as of March 2011), author type, region, and law school. As of December 2010, the publishers reported the directory contained over 3,000 active blogs. The 2010 ABA Journal Blawg 100 list may be found here.  Blogs allow the quick and efficient presentation of content to a potentially large audience of subscribers and beyond, making them attractive marketing tools for lawyers to spread news of latest developments, case successes, or personal viewpoints on emerging issues.


Certain features of blogs can create liability risks for lawyers and law firms, including one of their central selling points: their capacity for delivering timely, if not instantaneous, information. Blogs emphasize speed in delivery of content; the more late-breaking the news posted is, the greater likelihood readers will forward the link virally. This can make pre-publication review of an author’s post by other lawyers in a firm difficult, creating the possibility of one lawyer taking positions that are contrary to those taken by other lawyers in the firm or by firm clients. Compounding that issue, blog postings have a very long electronic life—even when later deleted or changed. An additional problem is created by the facts that blogs may allow users to leave comments or to contact the authors of the blog, which can result in an exchange of communication that, depending on its content and the circumstances, can inadvertently create an attorney-client relationship or malpractice liability. A further issue is the extent to which lawyer advertising rules apply to attorney blogs.


Microblogs

Microblogs, such as Twitter, limit posts to a certain number of characters and are thus designed for quick transmission of small amounts of information. Typically, a user will attract followers, to whom the user can then transmit posts collectively. The ABA’s 2010 Legal Technology Survey reports that 5 percent of lawyers surveyed say that they use Twitter or some other microblog site, up from only 1 percent in 2009. As of March 2011, Twitter said that users were posting a billion tweets (i.e., message posts) per week and that 460,000 accounts were being added daily.


Lawyers use Twitter or other microblogs to primarily post quick news items, such as breaking developments in case law, reports of other law-related events, such as trials or hearings, or to broadcast viewpoints or observations on emerging issues or events. Immediacy is the currency of Twitter: The more current the information, the more reason for people to subscribe as followers. As with blogs, it is this essential feature of immediacy that raises concern for lawyers.


Social Networking
Social networking sites, such as Facebook and LinkedIn, allow users to share information about themselves and to post information on other users’ pages. The number of Facebook users internationally is estimated at 500 million as of January 2011, and it is believed that up to half that number log on to the site every day. In March 2011, LinkedIn announced that it had reached 100 million users, with 44 percent of those users residing in the United States, and a million new users ever week.


While it is difficult to precisely estimate the number of lawyers who are using these social media tools, it is clear that the number is high and it is growing. The ABA Legal Technology Research Center found in its 2010 Legal Technology Survey that 56 percent of lawyers say that they maintain a presence on an online social network. In 2008, that number was only 15 percent. Many law firms have Facebook pages in addition to individual lawyers’ Facebook pages.  


Social network sites create potential risks for lawyers in various ways, including “friending” or personal linking features and the potential for interactively communicating in a way that imposes duties upon attorneys. For example, LinkedIn offers a questions feature that allows users to post questions for comment by other users. Attorneys can respond to legal questions posted, using this as a means to demonstrate their expertise. As in any other context, the more specific and confidential the information provided by the attorney, the more risk that an attorney-client relationship may be impliedly formed. 


Chat Rooms, Forums, and Listservs
Chat rooms and forums allow participants to communicate instantaneously with one another. Listservs allow users to post communications to an entire group through email; many attorneys participate in professional organization listservs. In California, the issue of whether such listserv communications by attorneys is discoverable in litigation was recently litigated to much attention in the legal press. Muniz v. United Parcel Service Inc., case no. cv-09-1987 (United States District Court, N.D. Cal.).


In Muniz, the plaintiff’s lawyer had posted information about the case on a listerv maintained by the California Employment Lawyers Association (CELA), a plaintiffs’ lawyer organization. The other side sought production of these and related postings in connection with its opposition to plaintiff’s fee application. The magistrate judge to whom the matter was referred refused to order the production of the listserv postings, holding that they were not relevant to the issues presented by the fee application. Id. Order granting in part and denying in part motion to quash third-party subpoena on the custodian of records for the Jaffe Law Firm and denying related motions. January 28, 2011. The opinion did not address whether or not the postings by the plaintiff’s attorney were protected by the work-product doctrine—arguments raised in briefing by both CELA and the plaintiff’s attorney.


New Social Media Applications
Of course, one of the dynamic features of social media is that new applications and sites appear almost every day. An increasing number of these are expanding the ways in which social media are used by lawyers. Some examples of these include crowd sourcing and Groupon.


Crowd sourcing sites outsource tasks (or microtasks) to a community of users. Often that takes the form of posting a problem or task to which users are invited to submit a response, often for compensation or some other reward. While crowd sourcing is increasingly employed by various types of industries (e.g., graphic design and software development), until recently its potential application to the practice of law has appeared less obvious. A couple of uses have now emerged. A company called Spindle Law offers a crowd sourcing approach to legal research, whereby users add legal authorities and analysis to legal issue “trees,” thereby creating a research database generated entirely by users. A new company, LawPivot, takes it a step further. Potential clients (companies of any size) will post confidential legal questions to a group of lawyers who have signed up with the service. Lawyers will decide whether or not to respond with confidential responses. No money is exchanged. The incentive for the lawyer is the introduction to potential clients and the opportunity to demonstrate legal skills. The client’s reason to participate is to get legal information quickly and inexpensively. This model raises various concerns, including the possibility of conflicts of interest, waiver of attorney-client privilege and discoverability of communications made through the site, and malpractice liability.  


Groupon is another example of an emerging business that has implications to the practice of law. Groupon is a social media site that offers user discounts on goods and services offered by advertisers. The advertiser pays Groupon a percentage of the fee earned by the advertiser from Groupon users who obtain the discounts. A proposed ethics opinion by the North Carolina State Bar opines that a lawyer’s offering discount coupons through Groupon would constitute impermissible fee splitting. North Carolina Proposed Formal Ethics Opinion 7 (Apr. 15, 2010).


These are just two of the new social media applications available to lawyers. No one doubts that new applications will continue to appear to offer new challenges to the traditional ethics and liability analysis.


Addressing Ethical and Liability Concerns
Lawyers’ use of social media poses various ethical concerns and risks. The same ethical and professional rules apply to communications made on social networking sites as apply to any other communications by lawyers, and it is important for lawyers to understand how to apply these rules to new situations. Risks arise from lawyers’ misunderstanding the nature and implications of these new and changing modes of communication.


Unauthorized Disclosure of Client Confidences
Professional rules and statutes in every state protect the confidentiality of client information and confidences. See, e.g., Model Rule 1.6. (“A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is authorized by [the limited exceptions] in paragraph (b).”) State rules may provide a different articulation of the basic rule. See, e.g., Cal. Bus. & Prof. Code § 6068 (e)(1) (attorney has a duty to “maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.”); California Rules of Professional Conduct (CRPC) 3-100 (“A member shall not reveal information protected from disclosure by Business and Professions Code section 6068, subdivision(e)(1) without the informed consent of the client.”). It should be obvious at this point that lawyers and their clients should not communicate through social network or other sites that publicly display those communications. Similarly, a lawyer who posts client information on a social networking site or in a blog violates those rules just as if he or she were publishing the information in a newspaper. The fact that the potential readers may be limited (in certain cases) to “friends” or some other subset of users is no protection for lawyers.


Lawyers who blog or otherwise post items about cases they are handling risk disclosing confidential client information. In a now famous and oft-cited example, an Illinois lawyer lost her public defender job after blog postings that contained thinly veiled information about her clients (including in one instance highly confidential information that suggested the client had committed fraud upon the court), and referred to a judge presiding over one of her cases as “Judge Clueless.” The Illinois State Bar filed a disciplinary complaint against her in 2009. In another case, a Florida assistant prosecutor made headlines in April 2010 after posting on his Facebook page—after jury deliberations but apparently before the trial was over—a poem describing the “trial from hell,” which could apparently be sung to the theme song from “Gilligan’s Island.” While this incident did not apparently cause the resulting mistrial, it raised a number of concerns for ethics lawyers. The takeaway point is that lawyers should use extreme caution in posting any information about cases they or their firms are handling and should refrain from commenting on ongoing trials or proceedings they are involved in. As demonstrated by the Muniz case cited above, this cautionary rule applies to listserv postings as well as Facebook pages or blogs.


Of course, one of the difficulties of social media as opposed to other types of communication tools is that disclosures may be inadvertent as well as express. Social media sites have various privacy settings that dictate how much information about users is publicly available to other users. Social media sites may change their privacy settings or features from time to time. (Facebook has done so several times, to great public attention.) As privacy settings applicable to particular social media sites or applications change, information about a user’s friends or contacts may be available to third parties without the user knowing. If the fact of a lawyer’s representation of a client is confidential or secret, the lawyer and the client or client representatives may not want to be linked on social networking sites. In addition, new applications emerge every day—many for exclusive use on smart phones—designed to share information in various ways. For example, Foursquare is an application intended to broadcast the user’s geographic location and proximity to members of the user’s social network. Lawyers need to decide whether the information to be shared (for example, their location at a client’s office) is something they want to broadcast.


To effectively protect client and other confidential information, lawyers need to be aware of the implications of their use of social media and be familiar with how each social media tool or application functions. The duty of competence clearly requires this level of familiarity and control. See Model Rule 1.1 (Competence); CRPC 3-110 (Failing to act competently). If lawyers are uncertain about their ability to monitor the features of social media, they should refrain from participating in those sites (at least in a professional capacity).


Attorney-Client Relationships or Improper Solicitation
Social networking sites allow for instant interactive communication in an informal context. The risk for lawyers who participate in real-time discussions online or direct communications with a third party through a website or a blog is that such communications may trigger duties owed to prospective clients, including a risk of disqualification from representation of an adverse party, fiduciary obligations, and malpractice liability (as well as the possible unauthorized practice of law where an attorney provides legal advice in a jurisdiction in which he or she is not licensed). See Model Rule 1.18 (Duties to Prospective Clients) (Absent informed written consent, a lawyer may not represent a client with interests materially adverse to those of a prospective client if the lawyer received information from the prospective client “that could be significantly harmful to that person in the matter.”).


In most jurisdictions, a key factor in determining whether an attorney-client relationship has been formed is whether the client reasonably believed he or she was consulting the lawyer in the lawyer’s professional capacity. See Westinghouse Elec. Corp. v. Kerr-McGee Corp., 580 F2d 1311, 1320 (7th Cir. 1978); Responsible Citizens v. Sup. Ct., 16 Cal.App. 4th 1717, 1733 (1993). Regardless of the specific medium of communication, the risk of inadvertently creating an attorney-client relationship arises from the same factors. The more specific the inquiry from the prospective client, the more the attorney invites such specific inquiry. The more specific the attorney’s response, the more likely that a relationship will have been formed. See ABA Formal Opinion 10-457 (discussing the various factual scenarios under which communications through an attorney’s website could create an attorney-client relationship and ways to limit that risk, including the use of disclaimers). Of course, confidentiality of the communications is a necessary component to find that a would-be client has a reasonable belief that an attorney-client relationship has been formed. Accordingly, the more public the exchange (i.e., if it is available to others), the less likelihood of an implied relationship. This risk has been examined previously with respect to communications between law firms and prospective clients through law firm websites. For the most part, ethics committees and courts have concluded that, with the proper disclaimers in place and care given not to render specific legal advice, lawyers face little risk that unsolicited communications would create an attorney-client relationship. See Iowa State Bar Ass’n. Form Opn. 07-02 (Web page detailing lawyers information and contact details does not by itself support claim that lawyer consented to the sharing of confidential information).  However, care must be taken not to provide legal advice. See Cal. State Bar Form. Opn. 2004-165 (Written disclaimer does not by itself prevent the existence of an attorney-client relationship); Florida State Bar Form. Opn. 00-4 (2000); Ohio S. Ct. Form. Opn. 99-9 (1999); New York City Bar Ass’n Form. Opn. 1998-2 (1998). Of course, it is difficult to utilize standardized disclaimers in the context of real-time communications.


Some practical steps can minimize risk. First, attorneys should limit the content of their communications to more generalized legal information rather than specific legal advice tailored to a specific circumstance. Second, lawyers should make clear that their responses are not intended to serve as legal advice and should recommend that the user seek the advice of an attorney in his or her jurisdiction. Third, attorneys should not provide legal advice without doing a conflict check and entering into an attorney-client relationship. These same rules apply whether the potential client is at a cocktail party or on LinkedIn.


Violation of Attorney Advertising Rules
All states limit lawyer advertising to varying degrees. See Model Rules 7.1 (Communications concerning a lawyer’s services), 7.2 (Advertising), 7.3 (Direct contact with prospective clients, including “real-time electronic contact”), and 7.4 (Communication of fields of practice and specialization); CRPC 1-400 (Advertising and solicitation). In California, electronic media advertising is subject to special regulation. Cal. B&P Code §§ 6157-6159.2 and 17529-17529.9. While there is significant variation among states, advertising rules generally encompass communications aimed at soliciting employment of legal services and require that such communications contain only truthful information that is not misleading, among other limitations. The advertising rules clearly apply to law firm websites. See, e.g., California State Bar Formal Opinion 2001-155.


Do these rules also apply to attorney social media profiles or blogs? While there is some debate about that, the safest course is to assume that they do, at least to the extent that these are aimed at attracting potential clients (as opposed to being used for purely personal purposes). Another possibility attorneys need to be aware of is that an online communication with a potential client may, under the right circumstances, constitute improper solicitation in certain jurisdictions. See State Bar of California Form. Opn. 2004-166 (lawyer’s participation in chat room for disaster victims). However, a recent opinion by the Philadelphia Bar Association’s Professional Guidance Committee opined that communications in chat rooms do not constitute “real-time” communications that would violate Model Rule 73. Phil. Bar Assn. Opin. 2010-6.


Social networking sites present particular challenges, partly through the ease with which an expanding array of formats may be used (such as the posting of video testimonials, which may be prohibited in certain states), and partly through the possibility that third parties will post information or statements on an attorney’s site or page that would violate the advertising rules. That necessarily means that lawyers and law firms should ensure that all professional-related information available on their social networking sites or blogs is accurate and truthful and that any postings that do not meet these criteria are removed. Further, attorneys should ensure that their own social media pages comply with the advertising rules of the jurisdiction(s) in which they are licensed.


Adverse Impact of Lawyers’ Statements on Blogs
Blogs and other social media offer lawyers a wide platform within which to transmit personal opinions. Lawyers, like everyone else, enjoy the right of free speech. However, lawyers have faced potential disciplinary action or censure from statements made in social media posts while not all rise to the level of ethics violations. A frequently cited example is that involving Sean Conway, a Florida attorney who was reprimanded and fined in April 2009 for a blog posting that called a judge an “evil, unfair witch” and described her as “seemingly mentally ill.” The Florida Supreme Court upheld the disciplinary order.


A slightly different situation occurred in January 2011, illustrating some of the tensions posed by lawyers expressing personal opinions that may differ from opinions of others at their firms. In January 2011, in a private blog not affiliated with his law firm, a partner at a large law firm in Texas made a negative comment about a Native American religious leader’s participation in a memorial service for the victims of the Tucson shootings. The law firm issued a statement distancing itself from the lawyer’s comments, and he issued an apology soon thereafter. The firm noted at the time that it was reexamining its social media policies. It was later reported that the attorney had stopped blogging.


The upshot of these examples is that, first of all, attorneys should exercise judgment when publicly criticizing judges or other attorneys. Additionally, individual firms will have to make decisions about the extent to which they wish to limit their own lawyers’ expression of opinion and under what circumstances.


Judicial Integrity and Propriety
One highly fraught ethical issue concerning social network sites is the participation by judges and the interaction between judges and lawyers through these sites. The primary concerns raised are the appearance of impropriety created by contact between judges and lawyers appearing before them and the risk of ex parte communications.


Canons and rules of judicial ethics generally prohibit ex parte communications, prohibit a judge’s family or social ties from influencing judicial conduct or judgment, and require judges to act in such a way that their activities do not cast doubt upon the judge’s ability to carry out his or her duties impartially. See, e.g., California Jud. Canon 2B(1), 3B(7), 4A. Social media use by judges has received attention for possible violations of these rules. In a highly publicized case, a North Carolina judge was publicly reprimanded for “friending” on Facebook a lawyer who was appearing before him in a pending case, reading messages about the litigation, and accessing the website of the opposing party.


While that case may illustrate more about the need to use common sense than a highly nuanced ethics determination, it and others have spurred the ethics committees in numerous states to weigh the ethical issues created by judges using social media. Ethics committees in various jurisdictions have reached differing opinions on whether judges may ethically “friend” lawyers who may appear before them. See California Judges Association Judicial Ethics Committee Opinion 66 (November 2010) (judges may not include in their social network lawyers who have a case pending before the judge); Supreme Court of Ohio, Advisory Opin. 2010-2 (judges may friend lawyers who appear before them but must be careful how much interaction they have); N.Y. Advisory Committee opinion 08-176 (judges free to “friend” lawyers as long as they comply with rules governing judicial conduct); Florida Judicial Ethics Advisory Committee opinion No. 2009-20 (judges may not ethically “friend” lawyers who may appear before them); South Carolina Advisory Comm. on Stands. of Jud. Conduct, Opin. 17-2009 (judges may friend lawyers as long as they do not discuss anything related to the judge’s judicial position).


Of course, judges also face scrutiny for the content of material they post to the Internet, even where it is not available to all members of the public. Ninth Circuit judge Alex Kozinski was admonished by a judicial panel for not safeguarding access to his personal website, which contained sexually explicit photos and other material that could be accessed through use of a password. The three-member panel called Kozinski’s actions “judicially imprudent.”  (A visit to the site now yields only the terse message: “Ain’t nothing here. Y’all best be movin’ on, compadre.”)


ABA Ethics 20/20
The ABA Ethics 20/20 Commission released an Issues Paper on September 20, 2010, addressing ethical risks of “internet based client development tools” and seeking public comment on questions including whether new ethics rules should be adopted to address these technologies. By February 2011, the ABA received 43 responses and held a public hearing. While the Commission has not yet issued any official report, many of the responses stated that while lawyers need more and better information and guidance about using Internet tools for marketing and development, new professional rules and regulation are not necessary.


Discoverability of Social Media: Ethical Considerations

Lawyers use social media not just to market themselves, but also to conduct their practices. Social media is increasingly a focus of informal discovery in litigation, including criminal, family law, defamation, intellectual property, and other cases. Lawyers use social media to investigate lay and expert witnesses and opposing parties, prepare for depositions, vet prospective jurors, and investigate opposing counsel and judges. Courts are increasingly allowing parties to obtain social media evidence from an opposing party in litigation, as long as the evidence is relevant to the lawsuit. See McCann v. Harleysville Insurance Co. of New York, 2010 N.Y. Slip Op. 08181 (party seeking such discovery must demonstrate its relevancy); Romano v. Steelcase Inc., 2010 N.Y. Slip Op. 20388 (N.Y. Sup. Ct. Suffolk City Sept. 21, 2010) (held, plaintiff could not hide relevant information “behind self-regulated privacy settings”). At least one court has required a social network site’s providers to produce information from a party’s social network account. Ledbetter v. Wal-Mart Stores, Inc., 2009 WL 1067018 (06-cv-01958-WYD-MJW) (D.Colo. April 21, 2009) (social networking sites ordered to produce information stored on the private portion of plaintiffs’ accounts).


Several recent ethics opinions have examined the ethics of lawyers or their agents attempting to obtain social media postings as part of the investigation of a case. See N.Y. Comm. on Prof’l Ethics, Op. 843 (“Obtaining information about a party available in a [public] Facebook or MySpace profile is similar to obtaining information that is available in publicly accessible online or print media, or through a subscription research service such as Nexis or Factiva, and that is plainly permitted.”). See also N.Y. City Comm. on Prof’l Ethics, Formal Op. 2010-2; Philadelphia Bar Ass’n. Opinion 2009-02 (lawyers may not use deception to gain access to social network information). An emerging consensus is that it is ethically improper for lawyers or their agents to obtain such information through the use of subterfuge or misrepresentation. However, new opinions also suggest that there is no ethical impediment to lawyers obtaining information from social media sites that is already publicly available.


Law Firm Social Media Policies
Some lawyers may have different expectations of privacy than others and less sensitivity to the risks that could be created through their online activities. Similarly, law firm staff members who are not themselves lawyers may have very little sense of how their own social media use can implicate the firm. To limit risk and to establish clear guidelines for attorneys and staff, law firms are increasingly adopting social media policies.


While specific policies should be tailored to the needs and interests of particular firms (and may be different for larger firms than for smaller firms), a law firm social media policy can include some or all of these terms.


  • There must not be any disclosure of confidential client information or the firm’s proprietary information. Employ extreme caution for any postings concerning current cases handled by the firm. Never use a firm client’s name in a post unless you have the client’s permission to do so.
  • Identify your affiliation with the firm only for posts related to your professional activities and only on social media affiliated with the firm (not on employees’ personal Facebook pages, for instance). Whatever is posted on a personal site or account should never be attributed to the firm and should not appear to be endorsed by the firm.
  • Do not post any content or conduct any online activity that would violate any federal, state, or local laws, including professional rules of conduct. Avoid defamatory postings, whether attributed to the writer or posted “anonymously.”
  • Blogs that concern professional matters should be reviewed by other lawyers at the firm who practice in the field to ensure that bloggers do not take positions or advocate viewpoints that are adverse to positions taken by the firm’s lawyers or clients in pending or likely matters.
  • Avoid personal attacks or hostile communications. Always use a respectful tone.
  • Correct errors (including typos) promptly, and fact-check information to make certain it is accurate.
  • Use caution in responding to comments posted by blog readers or on social network pages to prevent the inadvertent creation of an attorney-client relationship. Do not provide legal advice in your blog or in response to an inquiry comment. Do not respond with anything more than general legal information to specific questions about a person’s legal situation unless and until you run a conflict check. Use appropriate disclaimers when possible.

Conclusion
Social media will increasingly become part of all lawyers’ professional marketing toolkits. The same professional and ethics rules apply to these modes of communication as any other. However, to ensure compliance with ethics rules, lawyers need to understand the features employed by the specific social media applications they use and their functionality and monitor their own specific uses of these features. Above all, lawyers should not leave the issue of ethics compliance up to their marketing department or consultants. Ultimately, lawyers need to use common sense and good judgment.


Merri A. Baldwin practices at Chapman Popik & White LLP in San Francisco, California.



 
Copyright © 2017, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).


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