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Illinois Bar Journal

The Magazine of Illinois Lawyers

October 2011Volume 99Number 10Page 500

October 2011 Illinois Bar Journal Cover Image

Legal Technology/Ethics

Friending Your Enemies, Tweeting Your Trials: Using Social Media Ethically

By
Helen W. Gunnarsson

Ignore social media at your peril - and the same goes for the Rules of Professional Conduct. Here's a look at the special ethical challenges that arise on Facebook, Twitter and the like and how to address them.

Toward the end of August, the Pew Internet and American Life Project reported that 65 percent of adult Americans now use at least one social networking site such as Twitter, Facebook, or LinkedIn. Compare that figure with the puny five percent figure found in 2005 or even the 29 percent figure in 2008, and it's hard not to conclude that social media are here to stay. As ISBA President John G. Locallo wrote in his President's Page column for the September 2011 IBJ, "If Facebook were a nation, it would be the third largest in the world. Do I have your attention yet?"

At the same time, some lawyers' use of social media has gotten them into ethical trouble. In 2009, a Texas lawyer asked a judge for a continuance because, she represented to the court, her father had died. The judge, a savvy social networker herself, then discovered that the lawyer had posted photos of herself for that same period showing that, far from sitting shiva, she was out and about, drinking and partying.

Here in Illinois, a Winnebago County assistant public defender posted personally identifiable information about her clients on her weblog, including some confidential information about their cases, as well as disparaging remarks about two judges. As a result, she not only lost her job but was suspended from practice for three months. In the Matter of Peshek, Ill Atty Reg and Disc Comm, 09 CH 89 (Aug. 25, 2009), Ill S Ct MR 23794 (May 18, 2010).

It's no wonder that many lawyers feel conflicted about social media. On the one hand, the message that lawyers owe it to their businesses to explore and acquire an understanding of online social media and other similarly powerful new tools is compelling and alluring. On the other hand, social media isn't risk-free. Its power carries the dangers of not only public embarrassment but, even worse, ethical missteps that could result in blemishes on a lawyer's professional license.

Social Media: Ethical Issues

This session is scheduled for Saturday morning, Oct. 29. For more about the conference and to register, visit www.isba.org/soloconference.

Added to the generally cautious nature of lawyers - not to mention their busy-ness - these conflicting messages may be why many have chosen to defer using social media, either personally or professionally.

An unmistakable message of the Pew Research Center's study, though, is that social networking, like e-mail and the telephone before it, is no longer esoteric but mainstream. As President Locallo has said, lawyers owe it to themselves and their businesses to acquire an understanding of how to use these interactive tools that clients and others are already exploiting. The cost of not doing so is just too high.

Applying old rules to new media

Several lawyers from Illinois and other states agreed with that sentiment when they recently spoke to the IBJ about lawyer ethics and social networking. In the words of Chicago lawyer Erin E. Wright of DLA Piper, "Lawyers can navigate social media the right way, without violating ethical rules."

Though the same ethical rules that govern lawyers' offline conduct apply to online conduct, it's not yet always clear how those rules apply within the context of social media. "We're using rules designed for oral and print communication and now applying them to another space where the rules don't always quite fit," says Wright.

But, says employment lawyer, blogger, and tweeter Daniel A. Schwartz of the Hartford, CT firm of Pullman & Comley, LLC, "Fifteen years ago people were saying the same thing about e-mail. Eighty years ago they were worried about telephones. Any time there's a new form of communication, there's fear. Yes, social media are different, but there's no reason we can't apply the same rules we've used before."

Chief Legal Counsel James Grogan of the Illinois Attorney Registration and Disciplinary Commission identified several particular areas of ethical concern that disciplinary agencies across the country are currently seeing through formal and informal inquiries. They include revealing client confidences, a violation of RPC 1.6(a); lawyer communications, including advertising, governed by RPC 7.1 through 7.6; and approaching an unrepresented individual online by, for example, friending the person on Facebook, without disclosing that the lawyer is representing a party seeking information about or from the individual, which may involve RPC 4.1 through 4.4.

Client information - "[w]hen in doubt, leave it out"

Revealing client confidences while using social media, as the lawyer in Peshek did, may be far easier than you might think. "People have a tendency to tweet real time," Wright observes, and social media interfaces encourage sharing the details of what you're doing - the more frequent, the better.

Furthermore, like others using social media, lawyers want to be interesting and fresh. Elements of marketing oneself are also generally present, as well as a desire to show how one is unique. What better way could there be to be interesting, fresh, and unique, as well as to show your professional prowess, than to tweet or publish a blog post about the court hearing you just handled?

If you think that you're on the ethical high ground as long as you confine your remarks to the facts of that hearing - which was, after all, a public proceeding - and other matters of public record, think again, and reread RPC 1.6.

ISBA member Michael Downey of the St. Louis office of Armstrong Teasdale LLP points out that before the adoption of the Illinois Rules of Professional Conduct of 2010, RPC 1.6 prohibited lawyers from "us[ing] or reveal[ing] a confidence or secret of the client known to the lawyer unless the client consents after disclosure," either during or after the termination of the professional relationship with the client. Under that version of RPC 1.6, a lawyer could have discussed matters of public record concerning clients, as long as the lawyer did not also reveal client confidences or secrets.

Now, RPC 1.6(a) provides "A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b) or required by paragraph (c)." As official comments (3) and (4) highlight, that change prohibits lawyers from discussing even facts that are matters of public record and that others may be publicly disseminating and discussing in the news media, unless their clients have given informed consent or the other conditions of the rule are met.

The rule, then, doesn't prohibit you from tweeting, blogging, or using other social media to write about that hearing. As long as you've gotten informed consent from your client, tweet or blog away. Recognize, though, that you must secure not merely consent, but informed consent. Whether a client's signature on a retainer agreement that includes a paragraph in which the client consents to the lawyer's discussing the client's case in any media the lawyer pleases will constitute informed consent to the lawyer's discussing, say, the outcome of a trial two years after the client signed the agreement may be a more difficult question than whether the same client's signature approving a blog post that the lawyer has drafted and shown to the client is informed consent.

Wright and many other lawyers prefer to avoid the application of RPC 1.6 entirely. "When in doubt, leave it out," Wright says. As a "golden rule" of ethical social media usage, she recommends that lawyers refrain from posting information about client matters, even if another source has already made the information public.

In Wright's view, providing well-written, in-depth analysis of legal concepts is the best way to be interesting and fresh. "Write globally about a legal issue, leaving out specific facts about your clients," she suggests. "Provide information that might be helpful to others. Link to interesting articles, including your own."

Following Wright's rule doesn't mean posts and tweets must be bland and sterile to remain compliant with the Rules of Professional Conduct. Consider, as one of many examples, IBJ author Peter Olson's Solo In Chicago blog, in which he provides an intensely personal perspective on his solo practice in Chicago. (See Olson's article about virtual law practice elsewhere in this issue.)

Consider, too, that neither RPC 1.6 nor 3.6 prohibit lawyers from commenting publicly on cases in which they're not involved. But Michael Downey cautions in his "12 Tips for Reducing Online Dangers and Liabilities," published in the July/August 2010 issue of the ABA's Law Practice magazine, to avoid violating yet other ethical rules, namely, RPC 1.7 et seq, "Lawyers should also run conflict checks before posting materials about pending legal matters to ensure their firm does not represent a party involved in the matter."

Advertising - behave on social media as you do offline

Though lawyers may scrupulously comply with RPC 1.6 in their online social activity, they must also take care to consider the other rules, including RPCs 7.1-7.5, which govern advertising and other communications about a lawyer and his or her services. That series of the Rules of Professional Conduct also addresses direct contact with prospective clients and a lawyer's communication of fields of practice or specialization.

RPC 7.1 provides that "[a] lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading."

It's easy to imagine even careful and conscientious lawyers casually chatting on social media and, without intending to advertise or solicit clients, unwittingly invoking RPC 7.1 and/or the subsequent, related rules. Like the rest of the population, even lawyers for whom marketing is not uppermost in their use of social media generally have at least some interest in attracting business. And many lawyers do view social media as primarily, or even exclusively, a means of marketing themselves and their practices.

Miami lawyer Brian Tannebaum of Tannebaum Weiss, whose practice encompasses not only criminal defense but also the defense of lawyers before Florida's lawyer disciplinary agency, says, "When you're talking about what you're doing for a living, you need to be careful. You should behave on social media online just as you do offline."

Tannebaum believes that lawyers who view social media as merely another form of marketing are at high risk of inadvertently violating ethical rules. That younger and less experienced lawyers, some of whom may feel some desperation at the dismal legal job market, are more likely to use social media than older, experienced, and financially stable lawyers, may compound this risk, he suggests.

Referring to lawyers focusing on marketing, he says, "When you're in a crowded field of people trying to sell themselves, you try to differentiate yourself, so you might not be completely candid. There are people who will say in a crowded room that they worked on a big legal deal, and think that nobody's ever going to know that their involvement was marginal."

Online, such puffing is both permanent and easy to check. "Lawyers who are on social media solely to market their practices may oversell themselves by exaggerating their qualifications, flat-out lying about their experience, or divulging client information. We can become emboldened online and think that it's a different world."

Though Florida, the jurisdiction in which Tannebaum practices, is far more aggressive than Illinois in its regulation of lawyer advertising, such behavior can lead to violations of Illinois's RPC 7.1. And even completely truthful statements about a lawyer's experience may constitute violations of RPC 7.3 if unaccompanied by an advertising notice as required by subsection (c) of that rule.

Wright emphasizes the necessity of notices and disclaimers, with regard both to advertising and legal advice, but recognizes that the current wording of some of the ethical rules doesn't always make it easy to determine what notice to include where, nor do the interfaces of the various social networks always make it easy to include those notices. "It's tough to have a disclaimer on Twitter because of the 140 character limit on tweets."

Pending clarification from the rulemaking authorities, she recommends "Make it short. Put it in your profile on Twitter, on your Facebook information page, and at the bottom of your blog. Having something is better than nothing."

Friending your adversaries - proceed with caution

One of the most discussed ethical issues in social networking for lawyers, Grogan and Downey say, is pretexting. The Federal Trade Commission (which does not regulate lawyers) has defined "pretexting" as "the practice of getting your personal information under false pretenses." More specifically, for lawyer ethical watchdogs and mavens, pretexting occurs when a lawyer friends someone on Facebook, or causes an employee or associate to friend the person, with the aim of gaining access to information about that person that the person has made available only to approved "friends."

At first glance, a lawyer's reaching out to an unrepresented party to connect, whether personally or through a proxy, for the purpose of gaining information helpful to the lawyer's case might seem like a clear-cut violation of RPC 4.3, which prohibits a lawyer from stating or implying that the lawyer is disinterested when dealing on behalf of a client with a person not represented by counsel, or of RPC 8.4, which prohibits lawyers from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. But Downey says there's a division of views on the matter among ethics experts.

"What about the argument that I'm a litigator, and to represent my clients zealously I must try to acquire information from the other side that might help my clients by any and all methods arguably permissible by existing ethical and substantive laws?" he asks. Additionally, Downey suggests that such behavior may occur within a spectrum, one end of which may ultimately be deemed deceptive and impermissible and one end of which may be found unobjectionable and permissible, perhaps falling within the general category of caveat emptor when it comes to accepting any request to connect on social media.

Downey notes that at least two bar associations have addressed this subject by issuing formal ethics opinions. In its opinion 2009-02 (March 2009), the Professional Guidance Committee of the Philadelphia Bar Association disapproved a lawyer's proposal to ask a proxy to attempt to gain access to an unrepresented witness's profile on several social networking sites, saying that the action would violate Pennsylvania's version of RPC 8.4(c), which is identical to Illinois's rule. Using similar reasoning, in its Formal Opinion 2010-2 the Committee On Professional Ethics of the Association of the Bar of the City of New York disapproved a lawyer's using his or her real name and profile to send a "friend request" to obtain information from an unrepresented person's social networking website without also disclosing the reasons for making the request. "While there are ethical boundaries to such 'friending,' in our view they are not crossed when an attorney or investigator uses only truthful information to obtain access to a website, subject to compliance with all other ethical requirements." The committee said lawyers may not engage in deception, whether on their own part or through a proxy, by, for example, creating a false profile with information that might suggest to the targeted person that the lawyer or proxy is a long-lost friend, classmate, or a friend of a friend and use that profile to attempt to beguile the person into accepting a friend request.

Downey and Grogan note that the American Bar Association is currently conducting a review of the Model Rules of Professional Conduct through the Ethics 20/20 Commission, precisely because of the fuzziness of the rules' interface with some uses of social media. "The 20/20 name stands for clear vision, not a year," Downey says. Among other matters, the commission's aim is to address whether changes to the model rules of professional conduct or comments are warranted in light of developments in technology and global legal practice.

Daniel Schwartz, a member of the ABA's House of Delegates, which will ultimately vote on the commission's recommendations, urges lawyers to familiarize themselves with the Ethics 20/20 Commission's work and take the opportunity to comment on the proposals before it. "Don't be a bystander. These are rules for all of us, so it's important that everybody take the time to understand what the proposals are and comment on them." The commission's website is found at http://www.americanbar.org/groups/professional_responsibility/aba_commission_on_ethics_20_20.html. Lawyers need not be ABA members to comment.

"Lawyers can and should loosen up"

For Tannebaum, who is simultaneously a salty critic and an avid user of social media, ethical and effective social networking boils down to being oneself.

"A lot of lawyers think this whole social media thing is bad. They fear they may say something on social media that might be taken the wrong way. Lawyers need to realize what social media is all about: being social with other people," he said.

"Lawyers can and should loosen up a bit in terms of how they interact with the general public while still keeping the ethical rules in mind. We need to bring ourselves out in public a lot more. In this day and age, when it's all about transparency and quick communication, it helps the public when lawyers act like normal people instead of acting like they're using a megaphone to promote their practice."

Helen W. Gunnarsson, a lawyer in Highland Park, is an Illinois Bar Journal contributing writer.

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