Social Media & Legal Ethics

The Washington D.C. bar recently released Ethics Opinion 371 – Social Media II: Use of Social Media in Providing Legal Services.   

The opinion is thorough. I recommend reading it because it touches on so many areas in which a lawyer’s lack of a basic understanding of social media & how it works could lead to an ethics violation.

Some of you might be thinking: “I know how I’ll avoid violations: I won’t use social media at all.”  If so, I cannot stress this enough:  THINK AGAIN!  

Don’t want to use social media?  Ok.  What, though, is your response if:

  • an ethics complaint (or malpractice claim) is filed against you in which a client alleges that you refused to review an opposing party’s social media platforms?
  • opposing counsel informs the judge that your client’s social media postings are wholly inconsistent with claims & contentions you’ve made to the court on the client’s behalf?
  • opposing counsel places a litigation hold on a client’s ESI, including social media postings?
  • a client asks if her company’s social media postings comply with SEC, FTC, or FDA regulatory guidelines?
  • a client asks if her heightened settings create a reasonable expectation of privacy?
  • a juror’s social media posts would’ve caused a reasonable attorney to think twice about keeping the juror?
  • your employee is using a fake social media account to review your clients’ adversaries’ social media platforms?

If those questions aren’t enough to make your read the D.C. Opinion, at least consider this paragraph:

  • “Because the practice of law involves use or potential use of social media in many ways, competent representation under Rule 1.1 requires a lawyer to understand how social media work and how they can be used to represent a client zealously and diligently under Rule 1.3. Recognizing the pervasive use of social media in modern society, lawyers must at least consider whether and how social media may benefit or harm client matters in a variety of circumstances. We do not advise that every legal representation requires a lawyer to use social media. What is required is the ability to exercise informed professional judgment reasonably necessary to carry out the representation. Such understanding can be acquired and exercised with the assistance of other lawyers and staff.”

In other words, as I’ve blogged before, competence includes tech competence.