The Code of Professional Responsibility, Rule 1.1 Competence provides, "A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."
Comments to Rule 1.1 provide, in part, "Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners."
An attorney's failure to embrace the world of social media is a violation of Rule 1.1 Competence.
I made this statement to a group of lawyers and most of them visibly scoffed at the notion. Some of you just did the same. Only time will tell for sure, but there are many indications I'm right.
Many recent rulings teach us that lawyers are expected to utilize social networks to obtain information about witnesses, opposing parties and even clients.
In addition to enabling an attorney to provide competent counsel, keeping up with social media is just good business. Social networks like LinkedIn, as well as blogs and other interactive Web platforms allow lawyers to keep up with current law, collaborate with colleagues, communicate with clients and reach out to prospective clients and referral sources.
Though I insist attorneys must embrace social media I strongly suggest it not be done haphazardly. Creating a thoughtful online, or social networking plan is essential. Turning over one's online presence to the firm's 25 year-old intern, could be a recipe for disaster if not done with some thought.
Though it is essential to keep up with the ever-changin world of social media, one must do so while continuing to comply with the Code of Professional Responsibility. This not-so-new technology provides many ways for attorneys to unknowingly breach confidentially, mislead clients, fall short of the standard of care, violate ethics rules, state and federal privacy laws and data security laws. Careful planning must include an acknowledgement of the risks and a plan to avoid them. Let's look at a few examples of the risks.
The Use of Social Networks
Some attorneys have begun to participate in social networks like Facebook, LinkedIn, Legal Onramp and Twitter. There is no doubt these networks can be beneficial to one's practice on a number of different levels. Using these networks can enable you to have up-to-the-minute information on a new legal precedent, as well as enabling attorneys to obtain referral sources and potential clients. But, if the use of these networks is not done in a thoughtful manner, according to a plan, attorneys risk breaching confidentiality through even the most seemingly innocuous status updates and Tweets.
The attorney who cancels Date Night with her husband by Tweeting, "Can't make dinner, must meet with the CEO of XYZ Corp. Don't wait up. Love you!" may inadvertently have caused XYZ stock to go up or down while violating confidentiality rules as well as state or federal insider trading laws.
Keep in mind, the problem here is not so much the fact that she communicated this information to her spouse. The problem is, she has no control over the tweet, or Facebook status update once it hits the Internet. Comments to the tweet, or status update multiply the number of people who see the information many times and serve to increase the risk of a rules violation. This would also be true for the attorney who "Friends" her client and communicates with via his Facebook page. The risk of an inadvertent waiver of privilege, or the unanticipated breach of confidentiality is high.
Think Before You Tweet
The absolute best way to control the risk of using social networks is to simply to think before you type or assign the task of maintaining your online presence to one who is not familiar with the constricts you face. We understand you have pressure to bill an appropriate number of hours each year. We also understand when you aren't billing those hours you want to be spending time with your family and taking your mind off your work. Engaging a knowledgeable third-party to assist you with the management of your online presence is an option you may wish to explore.
When in doubt, don't post it! That is only good advice if you are thinking about the risks that could possibly give rise to the doubt. In general, it is good practice to avoid sharing information related to your work publicly, unless you have pre-determined there is no risk in doing so. Attorneys involved in social networks should:
- Use the privacy protections available to limit who sees your posts. Remember, each time another person comments on your post, its reach multiplies many many times;
- Think before you accept a "Friend Request," keeping in mind "Friends" follow your updates;
- Separate personal pages from professional ones, but never forget that both pages will be found by anyone looking;
- Write a policy for your firm specifically outlining the appropriate use of personal and professional social network pages, while specifying the type of information that may be shared;
- Advise your employees you will be monitoring their posts and then do it;
- Keep up with changing technology;
- Understand the risks and benefits of being able to post data in real time from Smartphones, iPads and other devices;
- As technology advances are made, modify your policies as needed;
- Recognize that, regardless of your privacy settings, no social network post is truly private; and
- Remember, anything posted on the Internet is a public statement that will be accessible to others forever.
Take Advantage of Social Networking Opportunities
Networks like LinkedIn, Legal Onramp, and others are geared toward professionals who wish to build networks that enable them to exchange information, collaborate with colleagues and obtain referrals. These sites are used most effectively when you take the time to prepare and publish a profile describing who you are and what you do. Care must be taken when publishing your profile and participating in these networks. One still must keep ethical constraints in mind. The same is true for attorneys writing blog posts and responding to comments left by clients, prospective clients and referral sources.
Sharing information with a colleague on Legal Onramp is important. Participating in LinkedIn Groups and Quora is also important. These are ways you establish credibility online, and it's this credibility that helps you build networks that enable you to communicate with colleagues, clients, prospective clients and referral sources.
Attorneys must embrace social media and participate in a variety of social networks. Attorneys who don't heed this message, at a minimum, will be out of business in the next three to five years. This technology is changing the way attorneys communicate with colleagues, clients, prospective clients and referral sources. Lawyers must competently manage their use of this technology. One should also keep in mind that sometimes the pace of technological change outruns the pace in which courts and ethics committees update rules or issue guidance.
Think before you Tweet or post a status update. Use disclaimers, When in doubt, don't. Most importantly, remember common sense and professionalism is likely to be your best approach to using the social media to build your credibility and your practice.