Social media has revolutionized how lawyers communicate with clients and advertise their services. But technological advances bring not only opportunities, but also pitfalls.
Although it remains to be seen precisely how courts and disciplinary authorities will handle matters of discipline involving lawyers and social media, use of social media platforms implicates ethical rules in both predictable and unpredictable ways.
This post, which will be followed by two more in a series, will discuss various social media platforms and the ethics Rules they implicate.
Lawyers and law firms frequently maintain a Facebook page to publish firm news and stay top-of-mind for clients and referral sources. Facebook raises numerous potential ethics issues, including:
- Rule 8.4: friending a judge can create concerns that the lawyer is improperly trying to state or imply an ability to influence the judge.
- Rule 3.5: messaging or even just posting to a judge’s page on Facebook can create the impression of an ex parte communication with the court. North Carolina Judge Carlton Terry was disciplined for improper Facebook conduct.
- Rule 4.1: creating a fake Facebook page to contact a material witness regarding a case may constitute a false statement of material fact to a third person.
- Rule 4.2: contacting a material witness through a lawyer’s own Facebook page (identified as such) could easily raise concerns under Rule 4.2 if the lawyer is communicating with a party represented by counsel.
Lawyers everywhere use LinkedIn—described by some as a “Facebook for professionals”—to stay in touch with clients and other lawyers, and to post articles and thoughts on legal topics.
Lawyers using LinkedIn should be aware of the following concerns under the Ohio Rules of Professional Conduct:
- Rule 7.1: lawyers cannot “make or use” a false, misleading, or non-verifiable communication about their services. Lawyers therefore cannot misrepresent their skill or experience on LinkedIn, but should also be wary of endorsements from others touting skills or experience the lawyer doesn’t have. The Ohio Board of Professional Conduct has addressed the issue in Advisory Opinion 2010-7.
- Rule 7.4: lawyers cannot advertise a specialty unless they are certified as a specialist by an appropriate agency and the name of that organization is displayed in the communication. Perhaps unwittingly, many lawyers improperly list practice area “specialties” on LinkedIn. This is not just an academic concern for lawyers. The Complaint filed by Ohio Disciplinary Counsel against Javier Armengau contained a charge that Armengau’s firm improperly listed “specializations” on its website.
Lawyers active on social media are not less ethical than other lawyers. But there are many more opportunities for lawyers on social media to run afoul of ethical rules.
The next post in this series will discuss ethical concerns for lawyers using Twitter and Groupon.