Online forums offer many opportunities to business professionals today; yet, for lawyers, social media endeavors can present serious professional risks. Attorneys who blog in public forums without caution or discipline may violate important ethics rules and/or permanently damage their reputations.
To help the attorneys in our network mitigate costly online mistakes, we interviewed Goodwin Procter IP litigation partner Ira Levy
for practical advice on what every lawyer should know about social networks. As a member of Goodwin's Ethics Committee, Ira frequently presents to the firm's attorneys on legal ethics and social media, including discussion forums, Facebook, Twitter and LinkedIn.
1. Why is this an issue attorneys should be concerned with?
Social media platforms are highly effective tools for sharing information and can be leveraged by businesses to support marketing and business development strategies.
But, for all the benefits of social media, we’ve seen attorneys get fined, publicly reprimanded, suspended and fired for disclosing confidential information on a blog or criticizing a judge or an opposing counsel on Facebook. Now, it’s never a good idea to call your opposing counsel a chicken, but it’s certainly worse to do so on a public forum where information is easily disseminated and difficult, if not impossible, to delete.
2. Not making insulting remarks online is a good tip for everyone, but are there issues specific to attorneys that need to be considered when using social media?
Yes, the rules governing attorney ethics with regards to confidentiality, duty to prospective clients, advertising, competence, unauthorized practice of law and conflict of interest should all be considered when using social media.
3. Can you give some practical tips to attorneys that comment on blogs or participate in discussion forums?
One of the most important things attorneys should be conscious of is whether their comments establish an attorney-client relationship. To mitigate the risk of that, lawyers should not respond to fact intensive inquiries, should limit online discussions to people they know and always include disclaimers, such as “this is not legal advice” or “I don’t know all the facts here,” in their responses.
But the best advice I can give is not to respond at all, since responding to online forums might have other implications as well. What if the other party is a client of your firm or becomes a client after your response? Are you sure where the questioner is located? If not, might you have provided legal advice in a jurisdiction in which you are not licensed? What if your response is not well thought out or well researched? Is there a risk of malpractice if someone acts in accordance with your advice?
Again, the best protection against these potential problems is to simply not respond.
4. Are there issues specific to LinkedIn, Twitter and Facebook?
I think the main issues with LinkedIn are related to attorney advertising, communicating past representations and endorsements. Profiles that detail an attorney’s experience and capabilities might be construed as advertising. If there’s a possibility that your profile qualifies as advertising, you need to include the appropriate disclaimers. Also, attorneys who discuss past representations and successes should ensure that they are not disclosing confidential information and have the approval of the client before posting.
There are similar concerns with Facebook and Twitter, so users should not tweet details of an ongoing case or make status updates that might disclose confidential information. Users also need to make sure that their Twitter and Facebook activity doesn’t harm their professional reputation. Know who your friends are on Facebook and who follows you on Twitter. Know what your privacy settings are. Be comfortable with the pictures on your profile or the groups you belong to. Don’t provide updates about your night out if you had requested a trial delay or were late responding to a client. These may seem like obvious suggestions, but people are constantly mistaking their very public online profiles as forums for private thoughts.
5. What’s the main takeaway attorneys should keep in mind about social media use?
While it is possible to violate various ethical rules while using social media, it is more likely that the conduct of the lawyers, not the medium, will be at the heart of the issue.
Ira Levy's practice focuses on the litigation of patent, trademark, copyright, false advertising and related matters for a wide array of industries and in a variety of technical disciplines. He has extensive experience with disputes involving biotechnology, pharmaceuticals and chemistry; electronics, computers and telecommunications; mechanical devices; industrial and consumer products; and the Internet, new media and e-commerce.
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