Legal Ethics Practice of Law Social Media

Using Social Media? Beware of Ethical Pitfalls (Part 2)

87524559The 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. 

With 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 disclaimer. Here are more tips to help you safely navigate the social media minefield.

Use endorsements cautiously…allow them without touting them. Online endorsements and recommendations are everywhere these days—from LinkedIn to attorney-specific sites like Avvo and consumer-focused sites like Yelp. California Rule of Professional Conduct 1-400 prohibits

a “communication” that contains testimonials about or endorsements of a member unless such communication also contains an express disclaimer such as “this testimonial or endorsement does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter.”

Endorsements are also subject to the guidelines issued by the Federal Trade Commission for endorsements and testimonials in advertising.

A statement at a site like LinkedIn or Avvo endorsing the attorney’s work is likely a “communication” by the person who makes the endorsement. If so, and if it doesn’t contain the requisite disclaimer, it appears that Rule 1-400 is implicated. The receipt of endorsements, by itself, probably doesn’t cause the attorney to run afoul of the rules. But be cautious when promoting those endorsements or otherwise managing them; actively seeking and promoting the endorsements, whether by linking to the endorsements from a bio, repeating the endorsements in a bio or personal website, or soliciting the endorsements from friends, could be viewed as an attorney causing the endorsements to be made, which would be subject to the rule.

Read and understand the terms of service and privacy policies for each networking media tools you use. Simple Facebook updates and tweets to your followers may not seem anything like attorney advertisement, but the rules have a broad reach. California’s Standing Committee on Professional Conduct has stated that social media postings will be subject to professional responsibility rules and standards governing advertising and constitute “communications” under Rule 1-400. If you tweet or post to other sites, make sure that you understand your privacy settings and the site’s features. You may not be fully aware of the reach of your postings and they may be accessible far beyond the immediate group you intend them to reach.

It’s obviously inconvenient and barely possible to include a full disclaimer (a statement that the tweet isn’t intended to be legal advice or to create an attorney-client relationship, plus a statement of the attorney’s affiliation) in tweets or posts on other microblogging platforms. Nevertheless, consider the effect of your messaging when tweeting. You also may want to include similar disclaimer language in your profile on the microblogging site.

Understand the new technology you’re using so that you don’t inadvertently disclose client confidences. Know the reach of any social media platform you’re using. Ask yourself questions like: How do the privacy settings work? Who can read my posts? Who is likely to be reading my posts?

Questions about access and privacy of the platform aren’t limited to the popular social media sites. You might also be using a variety of storage, archiving, and document management solutions—sometimes collaborating with your clients and others. Whether it’s Box, Dropbox, GoogleDocs, or one of the transaction-specific or legal-specific document management platforms, none of these has exactly the same rules or terms and conditions of service, and their privacy settings and features differ. Gone are the days when you could simply entrust the issues to the law firm’s IT department. These days, the professional responsibility rules generally require that attorneys take ownership of these issues.

Rule 3-110 states that a member “shall not intentionally, recklessly or repeatedly fail to perform legal services with competence.” The term “competence” applies to diligence, learning, and skill. Sending communications and sharing information online in a way that could reveal attorney-client communications is an “intentional” act that’s related to the performance of legal services.

In sum, go forth and post, tweet, chat and link, but remember that all types of engagement with social media should be viewed as communications by an attorney, which can be subject to scrutiny under the professional responsibility rules.

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.




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