In today’s business 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 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.
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 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, 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.