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Attorneys' Online Comments Can Lead to Positional Conflicts

By Amy Mattson, Litigation News Contributing Editor – March 2, 2017

A District of Columbia ethics opinion suggests social media commentary could generate positional conflicts and advises lawyers to proceed with care when making statements online. The opinion may be the first to formally recognize social media's potential to raise such conflicts. The opinion also highlights that even though technology moves faster than regulators, it does not fundamentally alter lawyers' existing ethical obligations, say ABA Section of Litigation leaders.

Rule of Professional Conduct 1.7 Applies to Social Media
In Opinion 370, the D.C. Bar Ethics Committee advises lawyers using social media to exercise caution "when stating positions on issues, as those positions could be adverse to an interest of a client." The committee suggests remarks made on social media could "inadvertently" create a conflict under D.C. Rule of Professional Conduct 1.7(b)(4), which states a lawyer may not represent a client in a matter if "the lawyer's professional judgment on behalf of the client will be or reasonably may be adversely affected by . . . the lawyer's own financial, property, or personal interests." Moreover, web based interactions with anonymous or unknown users could "unintentionally cause the development of relationships with persons or parties who may have interests that are adverse to those of existing clients."

These warnings come amid guidance on a number of ethical topics pertaining to lawyers' use of social media for "marketing and personal purposes," and with simultaneously issued Opinion 371, which addresses social media use "in providing legal services." Though most of the discussion draws upon prior ethics opinions across the nation, the committee focused on conflicts of interest arising under Model Rule 1.7 when attorneys advance one position in online commentary and take an opposing stance in the course of client representation.

While this rule may not be something lawyers consider when creating Internet posts, Section of Litigation leaders suggest remembering the rule when asserting viewpoints on the web. "Lawyers need to be careful about the opinions they express. An attorney in a firm may inadvertently create a conflict of interest by commenting on an issue that is directly adverse to the interests of one of the firm's clients," says Shari Klevens, Washington, D.C., chair of the ABA's Standing Committee on Lawyers' Professional Liability.

Technology Outpaces Ethics Regulations
"Social media and technology evolve at a pace that is a lot faster than any regulatory scheme could keep up with," says Scott Reiser, Roseland, NJ, cochair of the Section's Ethics & Professionalism Committee. "It's the kind of thing where everyone agrees additional guidance is needed," Reiser observes. The need for that guidance may grow as attorneys expand their Internet activities. "The highly interactive nature of today's social media has a major impact on how ethical issues are presented," observes Greg Hanthorn, Atlanta, GA, cochair of the Section's Federal Practice Task Force. "Instead of reading a single posting, potential clients and other readers engage in what can begin to look like conversations with the lawyer. The more detailed and extended the online conversations, the greater the need to reiterate disclaimers and limitations," says Hanthorn.

Lawyers Can Avoid Social Media Pitfalls
 Unless and until technology and regulations keep pace with one another, self-awareness may be the most useful tool to avoid ethical violations. "The reason conflicts of interest are a cutting edge issue is because it is much easier for them to happen on the Internet," opines Klevens, explaining that anonymity can lull users into erroneously thinking certain conduct is permissible. "Most of the situations where lawyers have gotten themselves into trouble exist because whatever they were doing online also would not have been permitted in face-to-face or non-anonymous communications," says Klevens.

Klevens notes a good rule of thumb is for attorneys to ask whether a comment made online would be appropriate if made standing outside a courtroom or at a dinner party. "A lot of lawyers tweet with a disclaimer, but that is not always going to get you out of trouble if you are tweeting about something you shouldn't be tweeting about," adds Reiser.

Recognizing the distinction between blogging and blawging—a blog written by a legal professional that focuses on a legal topic—may also be important. "Lawyers need to remember that blawging is fundamentally different from blogging. Bloggers do not have to meet the same standards regarding confidentiality and advertising restrictions (for example) that lawyers do," says Hanthorn.

Section leaders suggest safeguards are available for attorneys to minimize liability. "Avoid commenting on ongoing cases, when possible," suggests Klevens, adding if attorneys do comment, they should run the relevant case through their firms' official conflict management system. Counsel should keep commentary generalized and broad. "Comment on an issue or case generally without taking a side, for example by talking about what has happened in the past, or why the issue is relevant," advises Klevens.

Attorneys should also know their online communications will be judged through the lens of the layperson. "Make sure you: (1) comply with applicable laws about disclaimers; (2) periodically reiterate that you are not providing legal advice and have not accepted the reader as a client; and (3) remain willing to stop the conversation if it is becoming too specific," says Hanthorn.

Keywords: D.C. ethics opinion, social media, ABA Model Rules, positional conflicts

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