Tuesday, November 8, 2016
D.C. Committee Opines On Social Media Use
The Legal Ethics Committee of the District of Columbia Bar has just issued two opinions on social media use.
As discussed in more detail herein, lawyers must be cognizant of the benefits and risks of the use of social media and their postings on social media sites. Social networking sites, and social media in general, make it easier to blur the distinctions between communications that are business and those that are personal. Communications via social media are inherently less formal than more traditional or established forms of communication. Lawyers and law firm employees must be reminded of the need to maintain confidentiality with regard to clients and client matters in all communications. It is recommended that all law firms have a policy in place regarding employees' use of social networks. Lawyers in law firms have an ethical duty to supervise subordinate lawyers and non-lawyer staff to ensure that their conduct complies with the applicable Rules, including the duty of confidentiality. See Rules 5.1 and 5.3.
Content contained on a lawyer's social media pages must be truthful and not misleading. Statements on social media could expose an attorney to charges of dishonesty under Rule 8.4 or lack of candor under Rule 3.3, if the social media statements conflict with statements made to courts, clients or other third parties, including employers. Similarly, statements on social media could expose a lawyer to civil liability for defamation, libel or other torts.
There are no provisions of the Rules that preclude a lawyer from participating in social media or other online activities. However, if an attorney connects with, or otherwise communicates with clients on social networking sites, then the attorney must continue to adhere to the Rules and maintain an appropriate relationship with clients. Lawyers must also be aware that, if they are connected to clients or former clients on social media, then content made by others and then placed on the attorney's page and content made by the attorney may be viewed by these clients and former clients. Attorneys should be mindful of their obligations under Rule 1.6 to maintain client confidences and secrets.
Some social networking sites, like Facebook, offer users the option to restrict what some people may see on a user's page. These options also allow a user to determine who may post content publicly on the lawyer's page. It is advisable for lawyers to periodically review these settings and adjust them as needed to manage the content appearing publicly on the lawyer's social media pages. Attorneys should be aware of changes to the policies of the sites that they utilize, as privacy policies are frequently changed and networks may globally apply changes, pursuant to the updated policies.
Caution: avoid inadvertent creation of an attorney-client relationship, conflicts of interest and confidentiality violations
Protecting client information is of the utmost importance when using social media. Most attorneys are aware of the importance of protecting attorney-client communications, attorney work-product or other privileged information. The obligation to protect this information extends beyond the termination of the attorney-client relationship.
Blog about cases prudently
The scope of the protections provided in Rule 1.6 militates in favor of prudence when it comes to disclosing information regarding clients and cases. While lawyers may ethically write about their cases on social media, lawyers must take care not to disclose confidential or secret client information in social media posts. Rule 1.6(e)(1) states that a lawyer may use a client's confidences and secrets for the lawyer's own benefit or that of a third party only after the attorney has obtained the client's informed consent to the use in question. Because Rule 1.6 extends to even information that may be known to other people, the prudent lawyer will obtain client consent before sharing any information regarding a representation or disclosing the identity of a client. Even if the attorney is reasonably sure that the information being disclosed would not be subject to Rule 1.6, it is prudent to obtain explicit informed client consent before making such posts. With or without client consent, attorneys should exercise good judgment and great caution in determining the appropriateness of such posts. Consideration should be given to the identity of the client and the sensitivity of the subject matter, even if the client is not overtly identified. It is advisable that the attorney share a draft of the proposed post or blog entry with the client, so there can be no miscommunication regarding the nature of the content that the attorney wishes to make public. It is also advisable, should the client agree that the content may be made public, that the attorney obtain that client consent in a written form.
Respond to criticism with care
The ability for clients to place reviews and opinions of the services provided by their counsel on the internet can present challenges for attorneys. An attorney must monitor his or her own social networking websites, verify the accuracy of information posted by others on the site, and correct or remove inaccurate information displayed on their social media page(s). As set forth in comment  to Rule 7.1, client reviews that may be contained on social media posts or webpages must be reviewed for compliance with Rule 7.1(a) to ensure that they do not create the "unjustified expectation that similar results can be obtained for others."
Social media is a constantly changing area of technology. Social media can be an effective tool for providing information to the public, for networking and for communications. However, using such tools requires that the lawyer maintain and update his or her social media pages or profiles in order to ensure that information is accurate and adequately protected.
Accordingly, this Committee concludes that a lawyer who chooses to maintain a presence on social media, for personal or professional reasons, must take affirmative steps to remain competent regarding the technology being used and to ensure compliance with the applicable Rules of Professional Conduct.
The world of social media is a nascent area that continues to change as new technology is introduced into the marketplace. Best practices and ethical guidelines will, as a result, continue to evolve to keep pace with such developments.
Opinion 371 deals with the intersection of social media in the provision of legal services with 17 Disciplinary Rules. (Mike Frisch)