Many of us begin our mornings browsing through blogs and social media postings from friends and colleagues. If an item is particularly interesting or relevant, we may immediately post it on a Facebook, Twitter, or LinkedIn account or even our firm legal blog.
Suppose you read a report on an interesting court ruling forcing Acme Pharma to go to trial on a competitor’s drug mislabeling claims and decide to post the following comment critical of the ruling on your Facebook and LinkedIn pages: “The court should have thrown this case out and sanctioned the lawyers for bringing such a frivolous claim!” Later in the day you receive a call from a partner in your firm’s Miami office in which the partner explains that the general counsel of her best client, Acme Pharma, just called to complain about your posts and, as a result, has decided to terminate the firm’s representation. Did you cross an ethical line?
In the past few years lawyer marketing by sharing the most recent trends and timely news has become routine, if not crucial, for professional development and marketing purposes. According to the 2015 ABA Legal Technology Survey Report, 76% of law firms maintained an online presence in comparison to 55% in 2012. See Nicole Black, How Are Lawyers Using Social Media In 2016?, MyCase Blog Home (Feb. 2, 2016). According to the ABA’s most recent Tech Report, in the period of 2013-2016, approximately 26% of firms maintain a blog. See Allison Shields, Blogging and Social Media, ABA TECHREPORT 2016 (Dec. 22, 2016). Nearly one quarter of the lawyers reported they were retained by clients through their social media efforts. These statistics confirm what is true for other industries is true for the legal world as well -- online presence is critical. However, unlike other industries, there are not only legal constraints, but also ethical restraints.
Lawyers employing social media in this manner should be wary of the ethical concerns surrounding posting and sharing articles found online or writing their own opinion pieces. This is because such posting could raise serious conflict of interest concerns with existing clients and thereby undermine the lawyer’s marketing objective. Rather than obtaining new clients, by publishing their opinions, lawyers may be offering opinions that are adverse to these potential clients’ interests and may turn them away from using these lawyers. Additionally, such posting could create conflicts with current and potential clients.
In November 2016, the D.C. Bar Legal Ethics Committee issued an opinion characterizing these potential conflicts originating from posting as “positional conflicts” under Rule of Professional Conduct 1.7(b). Opinion 370 is significant because it makes clear that the ABA’s definition for positional conflicts under the Model Rules of Professional Conduct extend to social media sites, postings, or activities that mention or promote a lawyer or law firm.
Under the Model Rules, a lawyer is prohibited from representing a client if “there is a significant risk that the representation of one or more clients will be materially limited . . . by a personal interest of the lawyer.” ABA Model Rule 1.7(a)(2). Comment 24 to this Rule discusses when lawyers can take “inconsistent legal positions” when representing different clients. In its commentary to Rule 1.7, the ABA only discusses taking such conflicting legal positions in different tribunals. This comment seeks to prevent lawyers from accepting representation “if there is a significant risk that a lawyer’s action on behalf of one client will materially limit the lawyer’s effectiveness in representing another client in a different case.” The ABA provides an example of such a conflict where representing one client will potentially create precedent adverse to the interests of another client.
Despite the ABA’s narrow definition of positional conflicts, Professor Judy M. Cornett, a University of Tennessee law professor, suggested in The Ethics of Blawging: A Genre Analysis, that it may not be such a far reach for courts to expand the scope of positional conflicts from tribunals to other situations. See 41 Loy. U. Chi. L.J. 221 (2009). In particular, Professor Cornett posited that expanding the scope of positional conflicts of interest to social media would potentially create many ethical dilemmas because the nature of social media encourages lawyers to liberally state their positions on legal issues. See id. at 239. In addition to cautioning lawyers about creating unintended conflicts of interest, the D.C. Opinion also notes that the ethics rules of more than one jurisdiction may apply.
The D.C. Bar Ethics Committee expands the scope of positional conflicts in two ways by: (1) suggesting that “[c]ontent of social media posts made by attorneys may contain evidence of such conflicts,” and (2) such conflicts may prevent a lawyer from representing an individual client, as opposed to conflicts that are formed when a lawyer represents two clients. In writing this Opinion, the D.C. Bar Ethics Committee aligns with Professor Cornett’s opinion that the uncensored and free nature of social media creates these ethical concerns. This was expressed when the committee referred to lawyers and law firms using social media sites: “[c]aution should be exercised when stating positions on issues, as those stated positions could be adverse to an interest of a client, thus inadvertently creating a conflict.” While the Opinion suggests such conflicts are limited to the particular representation, it is possible that a broader application of conflicts will be enforced in the future, as social media usage becomes even more popular.
Typically, a lawyer’s opinions outside the scope of the representation are shielded unless that lawyer decides to exchange such opinions in regular conversation with the client. However, sharing these opinions on social media creates the potential concern that your view may conflict with the client’s position or product.
For example, suppose you purchased a package of spinning classes to SuperCycle that has an expiration date. Due to court filing deadlines, you are unable to attend these classes before the expiration date. You attempt to explain the situation to the studio, assuming they will understand and postpone the expiration date, but they refuse. Furious, you post: “Don’t believe SuperCycle, they could care less about your soul! – spinning for dollars!” Within minutes, your colleague calls to inform you that he just had a very promising meeting with SuperCycle to handle a lease negotiation, but the studio just forwarded your posting and declined the retention.
Lawyers’ reputations derive from cases they choose to handle, and sometimes from what they write and how they portray themselves. The D.C. Bar Committee’s guidance serves as a reminder of the rapid access social media provides to connect an individual with a larger public. As a result, reputations are no longer built over years; rather, a reputation can be created simply by creating a legal blog that becomes popular or noisy enough, but a lack of due care in social media postings can have unfortunate professional consequences.
The increasing importance of social media for marketing and other purposes suggests that the D.C. Opinion will not be the only ethics opinion to address concerns over creating positional conflicts through social media usage. Moreover, lawyers who post or blog should be cautious because posts reach readers across the country, including in jurisdictions like D.C. that have expressly warned against creating positional conflicts through marketing. A blogging lawyer should perform a conflict check before publicly posting an opinion about a court ruling. Be mindful that your firm may have taken a contrary position in pending litigation. Even if not a prohibited conflict, a post contrary to the position of a firm client can be embarrassing and may be cited by opposing counsel to suggest that you’re off the cuff opinion should carry more weight than your colleagues’ legal briefs.
So while social media postings should be timely, pause before posting views about cases or matters that may conflict with positions espoused by your firm’s clients.