Tips for navigating social media’s thicket of ethical risks

Many attorneys recognize the value of social media in promoting their law practice. However, they may not always appreciate that their online conduct needs the same level of care in their personal capacity. Although attorneys may believe they are immune from the bar’s scrutiny when acting in their personal capacity, they may be unable to remove their proverbial attorney “hat” and free themselves of their ethical obligations when posting online.

The California Bar’s Standing Committee on Professional Responsibility and Conduct issued Formal Opinion No. 2012-186 to provide guidance on whether various posts on personal social media accounts implicated the Rules of Professional Conduct. Addressing one hypothetical, the bar concluded that even posts relating to the attorney’s personal life could be considered advertisements and subject to the corresponding restrictions in the rules.

Social media posts could create other problems for the law firm even if the attorney adheres to those ethical obligations. Consider an attorney at a law firm who shares an article about a new lawsuit against a big tech company on her personal Facebook page, along with a comment that she hopes that the company pays for all the harm it has caused. The next morning, that attorney receives a phone call from her law firm’s managing partner. He is livid, saying that the firm was pitching to represent that tech company in the lawsuit, which could have led to even more work in the future. Because the company’s legal and media department discovered the public social media post, the firm is now firmly out of the running to be defense counsel. The attorney explains she had no idea the firm was trying to get the case, but it’s too late. The opportunity is lost.

As a result, seemingly innocuous personal social media posts may create risk or tension with existing clients. Attorneys can consider the following issues and tips when conducting themselves online.

Mixing business with pleasure: potential “positional” conflicts

As recognized by the D.C. Bar in Ethics Opinion 370, social media makes “it easier to blur the distinctions between communications that are business and those that are personal,” partly because online communications are “inherently less formal than more traditional or established forms.” Where an attorney’s social media account identifies the attorney’s profession or law firm, others may attribute any posts to the firm, even if the attorney made the post in their personal capacity. Further, even if the attorney does not identify their firm in the post or social media profile, members of the public or the social media community may still be able to find the law firm’s name online and deduce their affiliation between it and the post. For this reason, it may be difficult for attorneys to disassociate from their profession on social media absent complete anonymity.

One issue implicated by the use of social media is the potential that the attorney’s posts could arguably be seen to create a “positional” conflict. For example, this type of conflict may arise where, on the one hand, an attorney advocates for a particular interpretation of a regulation in one lawsuit because to do so is in the best interests of the client they represent, and, on the other hand, argues for the opposite interpretation of the same regulation in another lawsuit on behalf of a different client at the same time. As made clear by Comment 7 to Rule 1.7 of the California Rules of Professional Conduct, this type of scenario, standing alone, typically does not create a conflict requiring the client’s informed written consent absent other factors.

Still, the “blur” of social media arguably makes it less clear whether such positional conflicts arise where an attorney takes one position on behalf of a client and, at the same time, argues or expresses support for the opposite position on a personal social media account. Indeed, Comment 4 to Rule 1.7 explains that “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,” then a “conflict of interest requiring informed written consent” exists. Similarly, the D.C. Bar in Ethics Opinion 370 cautioned attorneys who share information on social media when they express their position on issues because “those stated positions could be adverse to an interest of a client, thus inadvertently creating a conflict.” In fact, the D.C. Bar warned that such social media posts may provide evidence of a conflict.

Keep posts neutral

Let’s face it: the discourse on social media does not have a reputation for calm and well-reasoned discussions, particularly regarding complex and nuanced issues. Instead, social media tends to invite quick, visceral reactions to news events and “trolls” hoping to inflame passions. Thus, while attorneys may feel the urge to share their thoughts as soon as news breaks, doing so could create a risk that the attorney’s intended context or message is misunderstood. Attorneys can limit their risks by presenting a balanced analysis to avoid creating any appearance of a positional conflict or damaging the relationship with other existing or prospective clients of the firm.

Stay professional and calm

Social media commentary usually lacks the decorum that attorneys may be accustomed to in their law practice. While others may engage in uncivil or unprofessional behavior online, that does not give attorneys a pass to do so. On some occasions, attorneys make social media comments that they would never say in person or to a client. Because such comments are broadly distributed and saved for posterity, social media comments can be more problematic than traditional in-person conversations. Further, courts and state bars continue to recognize that online content is subject to the same ethical rules as traditional legal correspondence.

Before posting on any substantive issue or breaking news, attorneys may do well to pause and consider the content of the post and the possible ramifications for their firms, clients, and potential clients. As a precaution, it may be wise to have a colleague or firm leadership review the contemplated post to ensure that it does not create any client relation issues or unintended conflicts because once the post is public, it is hard to unring the bell.