Don’t lose sight of ethics when using social media

Over the past decade, the idea of an attorney having a social media "presence" has gone from a novelty to commonplace. When utilized properly, social media can be an incredibly effective marketing tool by increasing the attorney's visibility and in establishing her or his "brand." Attorneys engage in unnecessary risk if they check their ethical obligations at the door before going online.

Because social media is also commonly used for "personal" purposes, the line between such personal communications and business communications can get blurred, or may not exist at all. Bar associations do not permit ethical violations simply because the attorney was using a "personal" account to share opinions. Generally, an attorney is considered to be wearing her "attorney hat" at all times, even when using social media.

It is also safe to say that social media use by attorneys and law firms will only continue to grow as younger generations adept in the use of social media become attorneys and assume leadership roles within firms. Social media is already a primary medium for communication among younger generations, and thus attorneys will not only be comfortable using social media but its effectiveness will also continue to increase as a method for targeting potential clients.

Recent surveys confirm that these trends have not gone unnoticed by law firms. A survey by Vizibility and LexisNexis found that 91 percent of small firms and 86 percent of large firms already use social media as part of their strategy for generating business. While the ubiquitous use of social media is astounding given its relative youth, the understanding of the risks and potential downfalls of social media is less well understood. The informality associated with social media can lead to problems for law firms that more traditionally used carefully edited means of communication.

Without proper consideration, such uninhibited communication can sometimes unintentionally conflict with ethical rules that were written well before social media was even conceived as a means of communication for attorneys. Ethical rules can at times seem to provide little guidance as to how to address the many difficult issues that arise when attorneys use social media. However, the ambiguity is slowly becoming less muddled as states begin to tackle the various ethical issues that may arise from internet use -- and misuse.

For example, many states have made clear that an attorney does not have free rein to say whatever she or he likes on an internet blog, as such cyber-statements remain subject to ethical rules regarding confidentiality and honesty. Attorneys who "vent" about a judge without regard for the truth of those statements may draw the ire of the local bar association.

An attorney in Florida learned this the hard way, receiving a public reprimand and $1,200 fine for calling a judge an "evil, unfair witch" who was "seemingly mentally ill" on an internet blog while complaining about the judge's trial schedule. The Florida bar explained that because the attorney's statements were made with reckless disregard for their truth, they constituted unethical behavior. The Supreme Court of Florida concluded the attorney's statements were not protected speech under the First Amendment, confirming the state bar's reprimand.

Attorneys can also be mindful of the rules regarding maintaining client confidences when posting on the internet. Section 6068(e) of the California Business and Professions Code provides that an attorney is required to "maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client." The exceptions to this rule are very limited and generally concern situations where disclosure is necessary to prevent criminal acts that are likely to result in death or substantial bodily harm. Other states have also adopted rules prohibiting the disclosure of client confidences subject only to narrow exceptions.

The consequences for failing to maintain client confidentiality when posting on the internet can be severe. A number of state bars have suspended attorneys from the practice of law for a period of time after the attorneys published information on a blog that included confidential information about clients and/or derogatory statements about judges. For example, the State Bar of Oregon imposed a 90-day suspension on an attorney who disclosed personal and medical information of a client through an email listserv, while also indicating that the client was seeking a new attorney.

The risk of an internet post violating ethical rules extends beyond disclosing client information and can even exist when a licensed attorney is not actively practicing law. Attorneys have come under fire for online conduct that disparages the judicial system in general, an issue that has most commonly occurred in connection with jury duty. While a juror can be subject to civil contempt charges, an attorney who misuses the internet by posting about his or her experience as a juror can also be subject to professional discipline.

The State Bar of California has disciplined an attorney (who was not practicing at the time) for authoring blog postings about the details of a case for which he was a juror. The information shared online included the crimes at issue, the first name of the defendant, the name of the judge and, even worse, a description of the judge in a less than favorable manner. Because the attorney failed to "maintain respect due to the courts," he received a 45-day suspension, two years of probation, and was required to take the Multistate Professional Responsibility Examination within one year.

As these issues continue to come to the forefront, it seems likely that state bars across the country will become increasingly vigilant with respect to attorneys' online conduct and will become increasingly sophisticated in their monitoring efforts. In the anything-goes world of social media, attorneys should not forget about their professional obligations or else they will face the consequences.