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Using Social Media? Beware of Ethical Pitfalls (Part 1)

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The following is a guest blog post by Jonathan Rubens, a principal at Javid Rubens LLP in San Francisco, which represents clients in business transactions and advises them on data security, privacy, trademark and copyright issues.

Attorneys are using social media websites more and more. We’re visiting a variety of sites to promote our practices, communicate with our peers, and stay in touch with our clients. But social media presents many ethical pitfalls to avoid. Here are some tips to help you safely navigate the social media minefield.

Avoid online comments about active matters in a way that could be construed as an inappropriate extrajudicial statement. Use caution when you post something online that refers to an active litigation or other proceeding in which you’re involved. Many kinds of statements posted online could be construed as an “extrajudicial statement,” which can get an attorney into hot water. Rule 5-120(A) of the California Rules of Professional Conduct states the general rule that

[a] member who is participating … in the investigation or litigation of a matter shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the member knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.

This rule comes into play whenever an attorney is involved in an “investigation or litigation” and uses Twitter to communicate about the case. This is because Twitter is inarguably a way to disseminate information “by means of public communication.” Viewing use of Twitter conservatively, this is true even if the attorney limits the posting to his or her Twitter followers: there’s no reason to believe that a post made to a restricted list will stay that way. Thus, like any statement made publicly about a case (e.g., in a press release, in an interview, etc.), the question becomes whether the extrajudicial statement will have a “substantial likelihood of materially prejudicing” the proceeding.

Use the same rules you would use for normal “offline” case publicity when publishing online, and assume that anything you publish on a network like Facebook or Twitter will reach the public at large, even if you’ve set your privacy settings otherwise. This is true even in “semi-private” settings like Facebook where you may think you’re able to control who sees what.

Include an appropriate and conspicuous disclaimer on your website or blog. Yes, an attorney’s blog is a form of attorney advertising, and it can even be considered a means of establishing an attorney-client relationship in some circumstances. And blogs can convey messages that make representations about the kinds of services an attorney might provide or results that he or she has or could obtain, whether that message was intentional or not.

Under Rule 4-100, an attorney’s communication, which includes “any message or offer made by or on behalf of a member concerning the availability for professional employment of a member directed to any former, present, or prospective client,” cannot “fail to indicate clearly, expressly, or by context, that it is a communication or solicitation….”. And the communication must not “contain any matter, or present or arrange any matter in a manner or format which is false, deceptive, or which tends to confuse, deceive, or mislead the public” or “omit to state any fact necessary to make the statements made, in the light of circumstances under which they are made, not misleading to the public.”

This rule also prohibits a communication

in the form of a firm name, trade name, fictitious name, or other professional designation used by a member or law firm in private practice which differs materially from any other such designation used by such member or law firm at the same time in the same community.

For an attorney’s blog, a disclaimer should

  1. put readers on notice that the blogging attorney doesn’t intend to be providing specific legal advice by anything posted or said on the blog, and
  2. state clearly that the attorney doesn’t intend an attorney-client relationship.

Many blogs use aliases or catchy names for the blogging attorney, which may be obviously different from the attorney’s real name and the name by which he or she is known on a law firm site and in the official records of the State Bar. The Rules are clear that the use of fictitious names can be prohibited without appropriate disclosure. See Cal Rules of Prof Cond 1-400(9). If you use a blogging name, a Twitter handle, or some other fictitious name for online communications, consider including a disclosure (either on the blog or in a profile on the blogging site) noting the actual link between the blogger or poster and the law firm with which you are affiliated.

Check out Part 2 of this blog post covering endorsement pitfalls, terms of service and privacy settings, and keeping client communications confidential in the social media age.

To get fully versed on the ethical issues raised by social media by Jon Rubens, as well as discussion of the other areas in which social media has had the greatest impact on the legal practice by experts on their fields, view CEB’s Social Media Webinar Series. Also check out CEB’s Internet Law and Practice in California, chapter 8, on terms of use, online agreements, linking, downloading, and social networking.

Other CEBblog™ posts you may find useful:

© The Regents of the University of California, 2014. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

 

7 Responses

  1. […] the increasing use of social media by attorneys comes ethical risk. In Part 1 of the blog post, we discussed the risks involved with posting about ongoing matters and blogging without a […]

  2. […] Using Social Media? Beware of Ethical Pitfalls (Part 1) […]

  3. […] Using Social Media? Beware of Ethical Pitfalls (Part 1) […]

  4. […] Using Social Media? Beware of Ethical Pitfalls (Part 1) […]

  5. […] Using Social Media? Beware of Ethical Pitfalls (Part 1) […]

  6. […] Using Social Media? Beware of Ethical Pitfalls (Part 1) […]

  7. […] Using Social Media? Beware of Ethical Pitfalls (Part 1) […]

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