Photo Credit: dbking from flickr under a Creative Commons License
Avoiding legal and ethical problems on social media should be high on your list of things to do in 2014. For many attorneys, social media is a dangerous mistress. Many in the legal profession and at professional responsibility seminars advocate against the use of social media because of the potential legal and ethical concerns it creates for attorneys. However, as search engines increasingly rely on social media to determine relevance in ranking pages, it has become more and more important to have a strong presence on sites like Facebook, Twitter, LinkedIn, Google+, and others. So, what must one do to avoid trouble while still maintaining a strong social media presence?
Avoid Talking About Cases...Ever
The first pitfall most attorneys are likely to fall into is discussing their cases. Some attorneys get so comfortable with their social media presence they forget their audience may not be limited to the select few that respond to their posts or even those on their friends lists. Worse yet, the problem often begins innocently enough with a posting that says something like:
"What a day in court! The other attorney is a [email protected]#%#*\"
"Oh yeah! Just found the perfect case law. Going to show the other side how the Economic Loss Rule works tomorrow! Booya!"
"I hate my new client. What a needy jerk!"
"New record! $1M verdict in my car accident/quad case today."
After all, most people use social media to talk about their personal thoughts, how their day went, and what is going on in their lives. So, postings like these may seem natural. Unfortunately, they can telegraph someone's legal strategy or violate the rules regarding treatment of legal professionals, clients, and the public in an appropriate and professional manner. Other postings can violate state rules regarding advertising the results of one's work or even be seen as possibly promising results based on past performance. This can be true even if the case happened long ago and is no longer pending. As a result, it is probably best to avoid talking about actual cases on social media. Ever.
Legal Advice In Social Media
Another common problem is providing direct legal advice in posts. Occasionally, someone may ask a direct legal question in a publicly visible thread, and it may seem natural to give some off-the-cuff answers in response. However, if this is publicly visible, how many people did you just give legal advice to? Is the person asking the question now a client under your state's ethics rules? What about all of the other people who viewed the thread? Have you violated attorney-client privilege by discussing the matter in a public forum, potentially harming the case and opening yourself to ethics sanctions or malpractice claims? Things can get a little fluid and tricky when you start engaging in online advice giving.
The better practice is to keep any discussions about the law on social media as broad and non-specific as possible. While it makes sense to post about changes in the law or to write articles about an area of practice, it is best not to answer specific questions. After all, would it not be better to bring the person in to sign on as a client so you can make a little money off your advice than to simply provide a free answer and risk all the possible consequences?
Oversharing: It Is Called "Social" Media For A Reason
A third big mistake many attorneys make is treating their personal social media as though it is separate and apart from their professional one or their firm's. Unfortunately, the Internet is designed to make information easy to find. So, if you search for any of your friends or colleagues, even the most secretive ones, chances are you can eventually find something, whether it is simply an address and phone number or their private social media and dating profiles. "Dating?" you may say. Yes, because people often use the same email addresses, usernames, and passwords across different sites, if someone finds your social media page and discovers what you use as a username (let's say on Twitter, for example) then search for that same username, they may open a backdoor into your personal life.
This is not to say people should be embarrassed by being in the online dating scene, but as most of us know, there are dating sites and then there are dating sites, and some may advocate things like extramarital affairs or purely physical relationships and even include revealing photos of their members. Even if not engaged in online dating, a personal Facebook page loaded with pictures of you and your buddies drunk at various events, acting in a silly manner, or engaging in other behavior that you would not otherwise share with your professional contacts can come back to haunt you, hurt your chances of landing clients, and in some cases, even expose you to ethical violations (particularly if the photos depict or describe illegal activities).
The better practice is to take ownership of your online presence in social media and think of your life as a glass bowl as far as the Internet is concerned. If it is on the web, someone else can see it, so if you do not want someone to know about something you are doing in that other world you live in, you had better be sure it is not on the Internet, be it on your social media pages or someone else's. Remember, it is called "social" media for a reason: people are socializing and sharing things about their lives. Do you want them sharing your drunken bachelorette party moments with your boss or your next client? Probably not. So you need to control what information is out there on the web pertaining to you, wherever it may be. Most of the social sites now offer tools to un-tag yourself on photos and other items posted by others, and you can always ask the poster to remove the offending photo or other content, as well.
Whatever the situation, it is important for law firms, attorneys, and even legal staff members to carefully think about what they are posting in social media before posting it. The content should comply with any advertising rules an attorney would follow just as if they were preparing a direct mailer, an email newsletter, a billboard, or a radio or television spot. Thus, it is a good idea to implement social media policies in the office and to regularly review employees' social media activities to ensure compliance. It would also be wise to have a professional audit your social media presence, discuss how it may be good or bad for business, and provide you with best practices to improve your overall appearance online. The Friedman Group has years of experience dealing with online reputation, social media, the legal profession and would be happy to assist you in improving your social media presence.