In today’s environment, social media allows people to instantly share their opinions with the world. However, given the many heated issues that dominate our national discourse, there can be a tendency to post (or tweet) in anger or passion, which can lead to regrets later.
This risk is especially dangerous for attorneys. While attorneys may sometimes view their presence on social media to be in a “personal” capacity, the reality is that the line between personal and business can be blurred, or may not exist at all. In particular, with respect to an attorney’s ethical obligations, it may not be a very effective defence for an attorney to claim that she was acting in her personal capacity, and not as a lawyer, when she violated an ethical rule.
Recognising the rise of these issues in the age of social media, the State Bar of California issued a Formal Opinion in 2012 that addressed the interplay between postings on a supposedly personal social media page and the ethical rules governing attorney advertising. State Bar of California Formal Op. No. 2012-186. At issue were certain posts on an attorney’s personal social media page that highlighted the successes the attorney had on other cases, such as “Another great victory in court today! My client is delighted. Who wants to be next?” The California Bar concluded that, even among posts relating to the attorney’s personal life, such posts and others constituted the solicitation of clients or otherwise “concern[ed] the availability for professional employment,” and thus were required to comply with the rules for attorney advertising set forth in the California Rules of Professional Conduct.
Another potential issue exacerbated by the rise of social media is the potential for “positional” conflicts. Such a conflict may typically exist where, for example, an attorney argues for a certain interpretation of a statute in one lawsuit because it is in the best interests of one client, but then at the same time argues for the opposite interpretation of the same statute in another lawsuit on behalf of a different client. Comment 6 to Rule 1.7 of the California Rules of Professional Conduct (as effective Nov. 1, 2018) provides that such circumstances typically do not create a conflict requiring the client’s informed written consent unless certain factors are present.
However, it is arguably less clear how positional conflicts may function in the context of positions taken on social media. Comment 4 to Rule 1.7 provides that a conflict of interest requiring informed written consent) exists “if there is a significant risk that a lawyer’s ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer’s other responsibilities, interests, or relationships, whether legal, business, financial, professional, or personal.” Interpreting similar provisions, at least one bar association has stated that attorneys sharing information on social media sites should exercise caution “when stating positions on issues, as those stated positions could be adverse to an interest of a client, thus inadvertently creating a conflict.” See District of Columbia Bar Ethics Op. 370.
Although some commentators have suggested that the D.C. Bar’s opinion goes too far to limit attorneys, social media posts can also create sticky client relations issues even if the posts do not rise to the level of a traditional conflict of interest. Below are some tips for avoiding issues when using social media.
Considering Staying Neutral
Social media is generally not a place for balanced, well-reasoned assessments of issues but is used by many to express visceral reactions to news events. While attorneys may feel the urge to immediately share their thoughts with the world, they do so at their own risk.
For example, if Congress is considering passing a law that may impact a client, an attorney may be inclined to immediately offer her or his opinion on that law without regard to whether that position is aligned with the client’s. Even if the attorney’s posting does not create an actual conflict, a client certainly may be less than pleased to see its law firm advocating for a position if that position stands to harm the client’s business, financial or legal interests.
Likewise, commenting on ongoing cases can also be risky, but attorneys who feel compelled to do so can limit their risks by avoiding taking a definite stance and instead presenting a balanced analysis. That could help avoid creating any potential positional conflict with the interests of a client of the attorney and her or his law firm.
Avoid Unprofessional Conduct
Attorneys (typically) understand that their correspondence and briefs should be consistent with the level of decorum expected of members of the bar. Too often, that level of decorum is thrown out the window on social media. However, despite the informality of social media, it should not be considered as a free zone for unprofessional conduct.
A good rule of thumb is to ask whether the comment made on social media would be appropriate if standing outside a courtroom or at a dinner party. Many times, attorneys post comments on social media that they would never say in a face-to-face conversation, much less one with a client.
In some respects, comments on social media are worse than face-to-face conversations, as they are generally broadcast to the world and preserved for posterity. Courts and bars are increasingly taking notice of these issues and applying the same bar rules to social media as they do to traditional legal correspondence.
The most obvious tip can often be the hardest in practice. Before posting on any substantive issue (e.g., legal or political issues), it is helpful to stop and think practically about the post and the possible response from their firms, clients, and potential clients. Where practical, it may be a good idea to first run the posting by a colleague or firm leadership to ensure that it does not create any unintended conflicts or client relations issues.
Too often, attorneys instead let their emotions take over and fire off a post without a second thought. While attorneys certainly can use social media effectively in establishing a presence in their community or in a certain practice area, the undisciplined use of social media can unfortunately create the wrong kind of presence very quickly.
Shari L. Klevens is a partner at Dentons US and serves on the firm’s US Board of Directors. She represents and advises lawyers and insurers on complex claims, is co-chair of Dentons’ global insurance sector team, and is co-author of “California Legal Malpractice Law” (2014).
Alanna Clair is a partner at Dentons US and focuses on professional liability defence. Shari and Alanna are co-authors of “The Lawyer’s Handbook: Ethics Compliance and Claim Avoidance.”