Introduction
Most attorneys report using social media as part of their practice, and we know what poor decision-making online looks like. But the benchmark for the ethical use of social media in the practice of law isn’t measured by what would make it onto an episode of “Lawyers Behaving Badly”. Instead, ethics opinions from across the country make clear that the rules of professional conduct apply to attorney communications and marketing in digital form just like any traditional medium. Put that way, it sounds straightforward and perhaps even boring. Yet, the details of how the rules apply when the communication lives forever and the audience is virtually limitless are not so clear. Regardless of how and to what extent an attorney uses social media in practice, failing to understand and use the technology appropriately risks violating numerous rules of professional conduct.
Attorney Social Media Use Statistics
It should come as no surprise in 2019 that the use of social media is prevalent, if not ubiquitous, in the legal professional. According to the American Bar Association’s (ABA) Legal Technology Resource Center’s annual Legal Technology Survey Report, 77% of respondents reported that their firms have websites.[1] Sixty-three percent of law firms reported using Facebook, while 24% reported having a blog.[2] Approximately one-third of law firms maintain a presence on Avvo, about the same proportion that use Martindale.[3] Conversely, only 14% reported that their firms had a Twitter presence.[4] Law firm use of LinkedIn exceeds every other platform, though its reported use has decreased since its peak in 2017 at 93%.[5]
With respect to individual use, 79% of respondents reported that they use social media for professional purposes, citing networking, career development and client development as the most popular purposes.[6] Of these respondents, 82% use LinkedIn while just shy of half use Facebook.[7] Just over one-quarter of ABA respondents reported using Avvo for individual professional purposes.[8]
Consistent with responses about managing firm websites and creating content, more than 50% of respondents reported that attorneys in the firm handle marketing themselves, while only 19% rely on dedicated internal marketing staff.[9]
With Use Comes Misuse
There is no shortage of examples of lawyers getting in hot water over their flagrant misuse of social media.[10] In February 2019, the Pennsylvania Supreme Court suspended a district attorney for a year and a day for, among other things, creating a fake social media persona and Facebook page and recommending that her staff use it to “befriend defendants or witnesses” and “snoop” around.[11]
In September 2018, the Illinois Supreme Court suspended an attorney for six months for poor social media-related decision-making concerning another attorney whom he apparently extremely disliked.[12] Specifically, the offending attorney had registered the other attorney on five websites, including Match.com and Pig International, without her permission and using his law firm’s IP address.[13] The attorney also wrote false reviews of the other attorney’s legal abilities on Martindale.com and Lawyers.com and created a fake Facebook account to post a false review on the Facebook page of the other attorney’s law firm.[14] A couple of months later, the Board of Disciplinary Appeals Appointed by the Supreme Court of Texas found that reciprocal discipline was warranted and recommended that the attorney also be suspended from practicing law in Texas for six months.[15]
From these examples, and the many others we have seen in recent years, one may think, “Well, of course these attorneys were disciplined for their obviously bad behavior.” It doesn’t take admission to the bar to identify what the attorney did wrong in each instance. But, as with most things in the law, what the ethical rules actually proscribe and prescribe is not that simple. In 2012, the Supreme Court of South Carolina reprimanded a new attorney for, among other things, exaggerating his skill and experience on online attorney profiles and including statements likely to create unjustified case expectations.[16] Although the attorney had relied on assurances by website representatives, including lawyers, that the advertisements satisfied the ethical requirements, the court noted that the attorney failed to review the applicable provisions of the state ethics rules before using these websites.[17] In 2011, the Virginia State Bar publicly admonished an attorney for failing to include advertising disclaimers on his criminal law blog.[18] Although the blog was accessible from the attorney’s firm website and focused mostly on his favorable cases, the attorney argued that the blog was political speech and not commercial speech.[19] The Virginia Supreme Court rejected the attorney’s argument and concluded that the blog posts were “potentially misleading commercial speech” that the Virginia State Bar could regulate.[20]
These examples show that negligence, ignorance, and even innocent non-compliance can bite an attorney who fails to understand not only that the ethics rules do apply in the digital space, but how they apply. When it comes to using social media in the practice of law, the rules impose more obligations upon us than we may think.
The Law
The Model Rules of Professional Conduct
Given the widespread use of social media by attorneys, it may be somewhat surprising to learn that there are no social media-specific ethics rules. Instead, the same rules that apply to all other aspects of the practice of law apply when using social media. Three categories of rules are readily implicated—the attorney-client relationship, attorney advertising and misconduct. For example:
ABA Model Rule of Professional Conduct (“Model Rule”) 1.1 requires lawyers to provide “competent representation”, which “requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”[21] Comment 8 to Model Rule 1.1, discussed further below, recognizes a technological component of competence. It provides that, “[t]o maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.”[22]
Model Rule 1.6 requires lawyers to protect information about the representation of a client from unauthorized disclosure.[23]
Model Rule 7.1 prohibits lawyers from making false or misleading communications about their services, including by omission.[24] Relatedly, Model Rule 7.2 provides specific rules about what an attorney cannot say and what information an attorney must include in communications about the attorney’s services.[25] It explicitly recognizes, although probably unnecessarily, that a lawyer may communicate information regarding the lawyer’s services through any media.[26]
Lastly, Model Rule 8.4 prohibits a lawyer from, among other things, engaging in conduct involving dishonesty, fraud, deceit or misrepresentation and engaging in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of protected characteristics (subject to narrow limitations stated in the rule).[27]
Ethics Opinions
As we know, the Model Rules are not binding. Instead, the state entities tasked with promulgating ethical standards and the state supreme courts that consider whether to approve them are free to formulate their own rules governing the practice of law in their respective jurisdictions. Accordingly, states have adopted, modified, rejected and ignored the Model Rules to the extent they have seen fit. Importantly, “even where different jurisdictions have enacted nearly-identical ethical rules, their individual ethics opinions on the same topic may differ due to different social mores, the priorities of different demographic populations, and the historical approaches to ethics rules and opinions in different localities.”[28]
Many state bar associations have issued advisory ethics opinions interpreting their jurisdictions’ rules of professional conduct to address issues that may arise from attorney use of social media. Some have opined on the ethical implications of using specific social media platforms.[29] Importantly, many have cautioned that even personal social media activity could be subject to attorney ethics rules.[30]
Ethics opinions are not binding in disciplinary proceedings. However, they can certainly be helpful in guiding an attorney’s analysis of potential risks in a particular jurisdiction.
New York State Bar Association Social Media Ethics Guidelines
One useful resource for attorneys navigating potential social media pitfalls is the Social Media Ethics Guidelines of the Commercial and Federal Litigation Section of the New York State Bar Association (“NYSBA Guidelines”).[31] First issued in 2014 and most recently updated in June 2019, the NYSBA Guidelines are predicated on the New York Rules of Professional Conduct and ethics opinions by various bar associations in the state of New York interpreting those rules. The NYSBA Guidelines also include references to ethics opinions and rules in other jurisdictions.
Following Comment 8 to Model Rule 1.1, Guideline No. 1.A recognizes that “[a] lawyer has a duty to understand the benefits, risks and ethical implications associated with social media, including its use for communication, advertising, research and investigation.”[32] Guideline No. 1.A reflects a trend of increasing recognition that attorneys cannot simply respond to technology issues with “I don’t use that”. Indeed, as of the writing of this article, approximately 37 states had incorporated a duty of technological competence in their respective ethical codes by adopting at least a modified version of Comment 8 to Model Rule 1.1.[33]
Guideline No. 2.A cautions that “[a] lawyer’s social media profile – whether its purpose is for business, personal or both – may be subject to attorney advertising and solicitation rules. . . .[i]f the lawyer communicates concerning her services using her social media profile. . . .”[34] Unfortunately, the analysis of whether a statement, in any medium, is an “advertisement” has not been consistent even across the New York bar associations. For example, the New York City Lawyers Association issued an ethics opinion concluding that a social media profile containing only basic “biographical” information such as education and employment does not constitute attorney advertising; however, including a description of practice areas or certain skills or endorsements may render the profile attorney advertising.[35] In contrast, the Association of the Bar of the City of New York issued an opinion shortly thereafter concluding that an attorney’s LinkedIn profile may constitute attorney advertising only if, among other things, “the primary purpose of the LinkedIn content is to attract new clients to retain the lawyer for pecuniary gain”.[36]
Perhaps one of the more unexpected principles in the NYSBA Guidelines is reflected in Guideline No. 2.C, which recognizes that a lawyer has an obligation to monitor and remove other people’s content on the lawyer’s social media pages. It states, in pertinent part:
A lawyer is responsible for all content that the lawyer posts on her social media website or profile. A lawyer also has a duty to periodically monitor her social media profile(s) or blog(s) for comments, endorsements and recommendations to ensure that such third-party posts do not violate ethics rules. If a person who is not an agent of the lawyer unilaterally posts content to the lawyer’s social media, profile or blog that violates the ethics rules, the lawyer must remove or hide such content if such removal is within the lawyer’s control and, if not within the lawyer’s control, she may wish to ask that person to remove it.[37]
This Guideline thus includes not only an obligation to act when an attorney discovers false or deceptive statements by others on the attorney’s social media profile (e.g., endorsements recommending her for a practice area in which she does not have experience or expertise), but also to ensure that the attorney is aware of exactly what is on the attorney’s social media page through periodic monitoring. Guideline No. 2.C does not elaborate on what “periodically monitor” means, but it is certainly more than “no monitoring at all”. Suffice it to say that if you have a LinkedIn page but don’t know your login and/or password, you should probably find that information out.
Conclusion
The foregoing represents a mere fraction of the ethical rules that may be implicated by an attorney’s use of social media. If nothing else, the use of social media in the practice of law should be guided by good judgment and common sense. What one posts online lives forever, after all. But a prudent attorney would not stop there. Just as attorneys know to check case law and local rules in the relevant jurisdiction, it is important to know how the states in which you practice interpret their ethics rules with respect to social media use. As a medium with virtually (no pun intended) limitless reach, it is that much more important to act judiciously when taking advantage of the professional benefits of social media.
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[1] See Allison C. Shields, 2018 Marketing, American Bar Association, https://www.americanbar.org/groups/law_practice/publications/techreport/ABATECHREPORT2018/Marketing/ (“ABA Marketing Tech Report 2018”).
[2] See id.
[3] See id.
[4] See id.
[5] See id.
[6] See ABA Marketing Tech Report 2018.
[7] See id. Meanwhile, 68% of Americans generally reported using Facebook, while only 25% reported using LinkedIn. See Aaron Smith & Monica Anderson, Social Media Use in 2018 2, Pew Research Center (Mar. 1, 2018).
[8] See ABA Marketing Tech Report 2018.
[9] See id.
[10] See, e.g., Charles Toutant, Increasingly, Courts Scrutinizing Lawyers’ Social Media Activity, N.J. L.J. (Apr. 30, 2018), https://www.law.com/njlawjournal/2018/04/30/increasingly-courts-scrutinizing-lawyers-social-media-activity/.
[11] Office of Disciplinary Counsel v. Miller, Case No. 32 DB 2017, 19, 26-43 (Pa. 2019).
[12] See In re Quitschau, M.R. 0294 (Ill. Sep. 20, 2018); In re Quitschau, Comm. No. 2017PR00084 (Hrg. Bd. of the Ill. Attorney Registration and Disciplinary Comm. 2018) (“Quitschau Hearing Board Decision”).
[13] See Quitschau Hearing Board Decision.
[14] See id.
[15] Agreed Judgment of Suspension, In re Quitschau, Cause No. 61330, 1-2 (Tex. Bd. of Disciplinary Appeals, Dec. 12, 2018).
[16] See In re Dickey, 722 S.E.2d 522, 523 (S.C. 2012).
[17] See id.
[18] See Hunter v. Va. State Bar, 744 S.E.2d 611, 613-14 (Va. 2013).
[19] See id. at 613, 615.
[20] See id. at 618, 621.
[21] Model Rules of Prof’l Conduct r. 1.1 (Am. Bar Ass’n 2019).
[22] Model Rules of Prof’l Conduct r. 1.1 cmt. 8 (emphasis added).
[23] See Model Rules of Prof’l Conduct r. 1.6.
[24] See Model Rules of Prof’l Conduct r. 7.1.
[25] See Model Rules of Prof’l Conduct r. 7.2.
[26] See id., (a).
[27] See Model Rules of Prof’l Conduct r. 8.4(g).
[28] Social Media Ethics Guidelines of the Commercial and Federal Litigation Section of the New York State Bar Association 1 (Zahava Moedler ed., 2019), http://www.nysba.org/2019guidelines/ (the “NYSBA Guidelines”).
[29] See, e.g., State Bar of Cal. Standing Comm. on Prof’l Responsibility and Conduct, Formal Op. No. 2016-196 (2016) (discussing when an attorney’s blog may be subject to the rules of professional conduct); N.Y. Cty. Lawyers Ass’n Prof’l Ethics Comm., Formal Opinion 748 (2015) (discussing the ethical implications of attorney profiles on LinkedIn); S.C. Bar, Ethics Advisory Opinion 09-10 (2009) (discussing whether and when a lawyer may be responsible for content on websites that gather and provide information about attorneys without their participation).
[30] See, e.g., D.C. Bar Ass’n, Ethics Opinion 370 (2016) (“. . . [A]ny social media presence, even a personal page, could be considered advertising or marketing, and lawyers are cautioned to consider the Rules applicable to attorney advertising, even if not explicitly discussed below.”), https://www.dcbar.org/bar-resources/legal-ethics/opinions/Ethics-Opinion-370.cfm; Pa. Bar Ass’n, Formal Opinion 2014-300, 2 (2014) (“Any social media activities or websites that promote, mention or otherwise bring attention to any law firm or to an attorney in his or her role as an attorney are subject to and must comply with the Rules.”); State Bar of Cal. Standing Comm. on Prof’l Responsibility and Conduct, Formal Opinion No. 2012-186, 6 (2012) (“[An a]ttorney may post information about her practice on Facebook, Twitter, or other social media websites, but those postings may be subject to compliance with rule 1-400 if their content can be considered to be ‘concerning the availability for professional employment.’”).
[31] See generally NYSBA Guidelines.
[32] Id. at 3.
[33] See Robert J. Ambrogi, Tech Competence, Law Sites (accessed Sep. 27, 2019), https://www.lawsitesblog.com/tech-competence. Two of the most recent states to adopt a technological competence requirement are Michigan, see Order re Amendments of Rules 1.1 and 1.6 of the Michigan Rules of Professional Conduct, ADM File No. 2018-11 (Mich. 2019), and Texas, see Order Amending Comment to the Texas Disciplinary Rules of Professional Conduct, Misc. Docket No. 19-9016 (Tex. 2019).
[34] NYSBA Guidelines at 6.
[35] See id. at 7 (citing N.Y. Cnty. Lawyers Ass’n Prof’l Ethics Comm., Formal Op. 748, 1 (2015)).
[36] NYSBA Guidelines at 7-8 (quoting Ass’n of the Bar of the City of N.Y. Comm. on Prof’l Ethics, Formal Opinion 2015-7, 1 (2015)).
[37] NYSBA Guidelines at 11.
