Legal ethics and practices on collision course with 'Web 2.0'

By Correy Stephenson The Daily Record Newswire BOSTON, MA -- While many lawyers are taking advantage of abundant networking and marketing opportunities using Web 2.0 platforms like Facebook, LinkedIn and Twitter, they should be aware of a number of ethical pitfalls. From concerns about breaching client confidentiality on Facebook to the application of advertising rules to tweets, lawyers should proceed with caution when marketing themselves online, especially with limited guidance from state bar associations or ethics opinions. Despite the often murky ethical lines, state bars are monitoring attorneys' online activities. Jim McCauley, ethics counsel at the Virginia State Bar, has sent non-compliance letters to bar members after performing "random spot checks" of law firm websites, blogs and other sites like Avvo, Craigslist and Martindale-Hubbell. "Web 2.0 is so much more dynamic and lends itself to spontaneity and interactivity on a variety of platforms," which presents a number of ethical challenges for lawyers, he said. Existing rules A few states have tried to regulate lawyers' online activities, with limited success, said Michael Downey, an ethics attorney and partner at Hinshaw & Culbertson in St. Louis, Mo., who blogs at The Ethical Quandary. For example, in Louisiana, proposed rules that specifically addressed Internet advertising by attorneys were declared unconstitutional by a U.S. District Court. Most states are attempting to enforce their existing ethical rules in the online environment, with ethics opinions weighing in on issues specific to these platforms, noted Andrew Perlman, an ethics professor at Suffolk University Law School in Boston. The Philadelphia Bar Association Professional Guidance Committee recently issued an ethics opinion holding that a lawyer can't ask a third party to send a friend request to an adverse witness in the hopes of finding possibly impeaching evidence on the witness' Facebook page. Lawyers may receive more specific guidance in the future, said Perlman. Last year, the American Bar Association launched the Ethics 20/20 Commission. One of the primary issues the Commission is focusing on: ethics challenges arising out of advances in technology. In the meantime, attorneys should try to analogize their Web 2.0 interactions to the existing ethical rules, suggested Downey. For example, a law firm website would probably be regulated like a telephone directory ad, and something like a video on YouTube would be akin to a TV commercial, he said. Attorneys should remember that "the more invasive a communication is, the more that communication may be regulated," Downey said. In the Internet context, things like pop-up ads or spam e-mails would be more invasive than a law firm website or YouTube video, and therefore receive the greatest amount of regulation, he explained. Things to consider Even a simple status update or tweet sent in celebration of a courtroom victory could implicate ethical issues. "Think and read the rules before you act," advised McCauley. "When in doubt, leave it out." Here are some important considerations for lawyers engaging in Web 2.0: * Client confidentiality. Client confidentiality is a huge concern for lawyers engaging in social networking. Simply tweeting that you are working on a summary judgment motion - particularly if you relate facts that might be unique to the case - could be a breach of confidentiality, said McCauley. "Even if information is out in the public record somewhere it does not relieve lawyers of their responsibility to protect that same information," he said. Lawyers should try to limit their audience by limiting followers on Twitter, friends on Facebook or connections on LinkedIn. But lawyers should also remember that even if they control their own privacy settings, their Facebook status or tweets could be re-broadcast by their friends or followers. "You may think you have a limited, controlled audience, but you don't really know how many or which of your friends are connecting your updates with people you don't know," said McCauley. * Specialties. Lawyers can also run into trouble when they describe their practice area in an online profile. For example, LinkedIn allows users to designate a specialty, which can run afoul of state rules, McCauley said. "Some states restrict or proscribe lawyers from holding themselves out as specialists or experts in a particular practice area, while other states will allow it with a certain type of disclaimer," he said. Some states will allow a specialty designation only if the lawyer has completed an in-state certification program and been awarded a certificate, while others don't allow a specialty designation at all, he added. Downey suggested using phrases like, "My practice focuses exclusively on bankruptcy" rather than "I specialize in bankruptcy." * Advertising rules. If lawyers are using social marketing tools for professional purposes, then "they should operate under the assumption that what they do will be governed by their state's marketing rules," said Perlman. Potential concerns include listing client names, which could violate a state rule that clients must consent prior to having their name mentioned, or referencing prior court victories, which might run afoul of rules that such advertising is inherently misleading. Some states allow references to past cases or clients if lawyers include a disclaimer that results depend on the factors of an individual case. McCauley warned that even the domain name of a law firm's website could violate certain state rules by confusing consumers or making comparative statements (www.thebestlawfirminthestate.com, for example). Downey suggested that lawyers who have a professional profile on their LinkedIn page or discuss their work on Facebook automatically include an advertising disclaimer. * Solicitation. Sending a tweet praising the services of a law firm or celebrating a big verdict could implicate the Model Rules' limits on communications, McCauley said. Under Model Rule 7.1, lawyers can make general statements about themselves, their law firm or its services, as long as the statements aren't false or misleading. But if a lawyer's tweet is intended to advertise his or her services, or to solicit employment for profit, then it must be labeled or identified as advertising material, McCauley said. Given the 140-character restriction of Twitter, that could be a challenge. McCauley noted that this was an issue in the lawsuit over the Louisiana rules. Also, beware of "real-time communications" with people who are not existing clients - via Facebook chats or instant messaging - as they could violate Model Rule 7.3, which governs contacts with prospective clients, Downey warned. * Recommendations. Sites like LinkedIn and Martindale-Hubbell allow others to "recommend" an attorney's services. But if written by a client, such recommendations are analogous to client testimonials and lawyers will need to comply with their state's advertising rules about the content of the comments, McCauley cautioned. * Blogging. Perlman said that lawyers should also think twice before paying someone else to "ghost blog" on their behalf. "If you hire someone to produce content for your blog, that is arguably misleading because clients might think that you have written the material and are therefore knowledgeable about a particular topic," he explained. * Conflict of interest and conflict checks. Lawyers should be careful in their social media communications to avoid creating a potential conflict of interest. Depending on the information revealed, an attorney-client relationship could easily be formed over Facebook or in a series of e-mails, Perlman said. And that relationship - desired or not - could be in conflict with other client relationships. Facebook friends don't come with a built-in conflicts check, so lawyers "have to be careful," said Perlman. Downey noted that online communications can also give rise to a claim that the lawyer gave legal advice. As a result, he suggested that lawyers include a disclaimer in all communications, particularly if the other party's geographic location might be uncertain, in case the lawyer isn't licensed to practice in that jurisdiction. Published: Mon, Jul 26, 2010

––––––––––––––––––––
 Subscribe to the Legal News!
 https://test.legalnews.com/Home/Subscription
Full access to public notices, articles, columns, archives, statistics, calendar and more
Day Pass Only $4.95!
One-County $80/year
Three-County & Full Pass also available