Attorneys should exercise caution when using social media

Many attorneys still treat social media as a personal outlet that is distinct from their professional identity. Attorneys may sometimes maintain a “professional” social media presence either separately or though her or his firm and thus believe that they are drawing a line between that identity and their personal identity on social media. It can be difficult to maintain such a separation.

A much-discussed ethics opinion issued by the District of Columbia Bar in 2016 observed that, “[s]ocial networking sites, and social media in general, make it easier to blur the distinctions between communications that are business and those that are personal.” D.C. Ethics Opinion 370. This is especially true where an attorney intends to use social media for personal purposes but nonetheless identifies the name of her or his law firm (e.g., in a Facebook profile or Twitter biography).

In such circumstances, the public may associate any posts from the attorney’s account with the law firm. Even if an attorney does not identify her or his law firm, as a practical matter it is easy for clients, opposing counsel, and others to locate social media accounts and an attorney’s affiliation using a simple search.

Besides the risk that clients see embarrassing or unflattering posts, there are also several serious ethical issues that can arise for unwary attorneys using social media. For example, a 2012 ethics opinion issued by the State Bar of California highlighted the risk that even personal social media posts may run afoul of attorney advertising rules where the posts could be perceived as soliciting clients. There, an attorney posted: “Another great victory in court today! My client is delighted. Who wants to be next?” State Bar of California Formal Op. No. 2012-186.

Another important issue implicated by the use of social media is the possibility that the attorney’s social media posts will create a “positional” conflict. Traditionally, a positional conflict is one that may exist, for example, if 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. Typically, such conflicting representations are not per se inappropriate unless one representation has an adverse impact on the attorney’s ability to advocate for a client, which may then require informed consent. Comment 6 to Rule 1.7 of the California Rules of Professional Conduct describes factors that may impact whether informed written consent is required where an attorney is taking inconsistent legal positions in different tribunals on behalf of different clients.

In addition to addressing conflicts among multiple clients, Rule 1.7 of the California Rules of Professional Conduct also encompasses conflicts between the client’s interests and “the lawyer’s own interests.” Comment 4 to Rule 1.7 further explains that informed consent is required “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.”

Addressing a similar rule, the District of Columbia Bar stated in Ethics Opinion 370 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.” Indeed, the District of Columbia Bar warned that “[c]ontent of social media posts made by attorneys may contain evidence” of conflicts.

Although some commentators have suggested that the D.C. bar’s opinion goes too far to limit attorneys, social media posts can at a minimum create sticky client relations issues (even if the posts do not create a traditional conflict of interest). Before creating any unintended consequences, attorneys can consider the following three tips.

Refrain From Taking Sides

Social media commentary is not always a place for nuance. For example, if the U.S. Supreme Court agrees to hear a controversial case, an attorney may be inclined to immediately offer her or his opinion as to the proper result. 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 interests.

While commenting on ongoing cases is inherently risky, attorneys who feel compelled to do so can limit their risks by avoiding taking a definite stance and instead presenting a balanced analysis or simply summarizing the event. That could help avoid creating any potential positional conflict with the interests of a client of the attorney and her or his law firm.

Be Professional

In practice, attorneys generally communicate through carefully crafted correspondence and briefs that are consistent with the level of decorum expected of attorneys. Social media, on the other hand, has no such decorum. Attorneys nonetheless should not be deluded into believing that social media is 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. Comments on social media are in some respects worse than face-to-face conversations, as they are generally broadcast to the world and preserved for posterity.

Stop and Think

The most obvious tip can be the hardest in practice. Before posting on any substantive issue (e.g., legal or political issues), as a precaution, 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. The need to comment immediately simply is not worth the many risks created by the use of social media. 