October 09, 2009
LinkedIn. Facebook. Twitter. Blogs. Some say these social media sites offer legal professionals brave new worlds of opportunity, marketing and collaboration. Others assert they are minefields full of danger for the unwary or unwitting.
Which is correct? Both, of course. Yes, these various forms of social media present powerful opportunities. Yes, they also pose significant dangers.
BullsEye reported last month
on how litigants, lawyers, witnesses, jurors and even judges are seeing their online activities come back to haunt them in court and elsewhere. We promised to return this month with advice on how to avoid trouble online.
So how can legal professionals practice "safe social networking?" In the spirit of the topic, we turned to social networking sites such as LinkedIn and Facebook to put that question to a variety of lawyers and consultants.
From the feedback we received, we distilled their advice down to these top 10 tips.
10. Be professional – always
Remember that you are an attorney 24/7. Behave like one and always be professional in whatever you do online.
That means, above all, be truthful in what you say about yourself, your abilities and your practice. Be particularly careful in the bio you post on your website or blog and in the profiles you create for Facebook, LinkedIn and other sites. Do not portray yourself to be something you are not.
Being professional also means not calling others names online. In particular, do not call judges names. As comical as it seems to say that, a Florida lawyer was not laughing after he was disciplined and fined recently for writing on his blog that a judge was an "evil, unfair witch."
In whatever you post online, pay attention to protecting your own "brand" and your own professional reputation. "Participate – be part of the conversation," advises Mark Beese, president of the consulting firm Leadership for Lawyers in Denver. "But don't do anything that might diminish your reputation. Think."
9. Be thoughtful about who you connect with
One simple way to protect yourself in social networks is to be careful who you connect with. Our story last month gave an obvious example of this in the tale of the judge who "friended" a lawyer on Facebook when that lawyer was representing a party in a trial before the judge. Not surprisingly, the judge was reprimanded and the losing party got a new trial.
Another connection to avoid is one made for a dishonest purpose. An ethics panel has said, for example, that it is inappropriate for a lawyer to friend someone in order to investigate the person or to gain access to restricted information in connection with a legal action.
Also be careful to avoid connecting with others who may have their own ulterior motives in connecting with you. And consider whether a connection or an endorsement could someday come back to haunt you as evidence of a conflict of interest.
"While social media offers everyone literally thousands of connection opportunities, size of connections matters much less than quality of interaction," says Vanessa DiMauro, founder of the Boston social-media consulting firm Leader Networks. "Be intentional, make great impressions, and offer value to those who you connect or interact with."
A common practice among legal professionals is to segregate professional and personal contacts in different networks. "I still treat Facebook and LinkedIn separately," says Reid Trautz, director of the Practice and Professionalism Center at the American Immigration Lawyers Association in Washington, D.C. "Facebook is for personal use including family, friends, and professional friends; LinkedIn is strictly for professional connections and professional friends."
Joshua Masur, a partner with the law firm Turner Boyd in San Francisco, does the same, using LinkedIn professionally but restricting his Facebook connections to friends and close colleagues. "Of course, this means that you have to be willing to draw lines," he says, "which means being willing to say no when people ask to connect in a network that you've restricted."
8. Don't fall victim to the myth of anonymity
"I would never delude myself that socializing 'anonymously' on any of these platforms is truly anonymous, including commenting on blogs," cautions Susan Cartier Liebel, the Connecticut-based founder of Solo Practice University.
The recent history of the Web is replete with stories of the unmasking of legal professionals who thought they were posting anonymously. There was the assistant U.S. attorney who was exposed by a major magazine as author of an anonymous blog about judges. There was the in-house lawyer at Cisco whose identity was revealed after a lawyer he wrote about as a patent troll offered a reward for his unmasking.
These examples show that a lawyer should not feel safe to say anonymously what the lawyer would not feel free to say with attribution.
Another dimension to this involves Facebook, where lawyers can create restricted groups and therefore feel safer to speak their minds. If you are considering this option, make sure you educate yourself thoroughly on how to do it properly, advises Courtney Kennaday, practice management advisor for the South Carolina Bar.
Even then, she adds, "There's a strong caveat: don't count on Facebook's restricted groups to restrict everything. It is very difficult to know what types of items will slip through and be viewed by everyone."
7. Watch the line between networking and soliciting
Lawyers sometimes walk a fine line between speaking their minds and soliciting clients. They have every right to do the former and a professional responsibility not to do the latter.
One ethics opinion found that a lawyer engaged in inappropriate solicitation when he posted comments in a chat room for mass-disaster victims. It is easy to imagine how a lawyer could get into similar trouble on Twitter.
Several states have either ethics rules or ethics opinions that specifically address the issue of solicitation in electronic communications. Protect yourself by knowing the rules and exercising common sense.
6. Exercise editorial discretion – over yourself and others
Say nothing online that you would not want attributed to yourself on the front page of the New York Times. Do not assume that no one will read your blog or see your tweet. Once it is online, it is online forever and it can and will be found.
That does not mean that you cannot show personality or creativity, says Matthias Jung, director of Legal One Marketing in Houston. "It is good to let your personality shine through to your audience, but it is important to do so as if your mother or daughter were sitting there beside you."
However, that does mean to remember that clients and colleagues will read what you say. Lawyers sometimes seem to forget that their clients are following them online. If you would not say it to a client's face, do not say it online.
Not only are clients reading what you say, but they are judging what you say. Apart from the danger of saying something stupid, this raises another possible concern for lawyers whose clients are reading them online, says Eric Turkewitz, a trial attorney and blogger in New York City. "If you are frequently off-topic during working hours, they will wonder why you aren't working on their case."
If it is important to censor yourself, it is also important to censor others. "If you have a blog, make sure you approve all comments before they are posted," advises Lorraine Fleck, a trademark attorney and bloger in Toronto. "That was a great tip I got from a veteran legal blogger, which has prevented my blog from becoming a haven for those advertising fake Viagra."
Blogger and intellectual property lawyer Ronald Coleman sums it up this way: "Above all, accountability is key. Don't say it if you're not prepared to live it, or live with it. And if it's not something you can back up -- whether as a legal proposition or a factual assertion -- well, why would you want to say it in the first place?"
5. Know your state's advertising rules
Every state has its own unique version of the rules governing lawyer advertising and solicitation. Some require that copies of ads be retained, including copies of Web pages. Others require specific disclaimers on ads.
Be sure you understand the rules in the state in which you are licensed and in every state in which your law firm has an office. Keep up with ethics opinions interpreting the rules.
4. Avoid unauthorized practice
Avoid being charged with unauthorized practice by being clear about the geographic limits of your own license and about the geographic location of others with whom you communicate online.
"Protection against UPL ought to include disclaimers in online communications as to one's licensure and geographic limitation on practice," says James S. Bolan, a Boston-area lawyer who concentrates in professional-responsibility law. "Do not take on a relationship in a jurisdiction where one is not admitted."
Keep in mind that unauthorized practice can lead not only to ethics charges but also to loss of any legal fees billed for the work.
Avoiding unauthorized practice is often tricky but perhaps nowhere more so than in a virtual reality environment such as Second Life. If your avatar gives advice to another avatar, then in what jurisdiction are you practicing? Are you giving advice to the avatar or to the person behind it? In what jurisdiction is that person located?
3. Don't give legal advice
A significant danger online is the unintended creation of an attorney-client relationship. Web sites such as LinkedIn or Avvo allow users to post questions and others to post answers. Simply by answering a question, a lawyer may be giving legal advice and creating an attorney-client relationship.
This can happen even through a simple exchange of e-mails. A Massachusetts ethics ruling said that a lawyer who received an unsolicited query from a prospective client through an e-mail link on a Web site was required to maintain the confidentiality of the information even though the lawyer declined the representation.
The best way to keep this from happening is to avoid saying anything online that might be construed as providing specific legal advice. If you do answer a question online, include a disclaimer saying that you are not providing advice.
2. Don't talk about your clients or their cases
Consider the example of Kristine Ann Peshek. On her blog chronicling her work as a public defender in Illinois, she sometimes wrote about clients and cases. Although she never used a client's last name, she now faces disciplinary charges because authorities say her posts revealed enough information about her clients that others could identify them.
Peshek provided details about cases that some would say made her an extreme example. But even seemingly innocuous posts can get a lawyer in hot water. A simple status update on Twitter or Facebook could reveal your next move in a case to your opponent. Your tweet, "Drafting motion for summary judgment in federal court case I'm handling," could be all the warning the other side needs.
For anyone other than a sole practitioner, this may require running a conflict check before posting. You want to avoid writing about not only your own clients, but also about any of your firm's clients.
1. Use common sense
It sometimes seems to be in short supply these days, but common sense is the best way to stay out of trouble. Apply it to everything you do online and you can probably forget all the other rules.
"While I'm a fan of policies," says consultant Mark Beese, "I tend to stick to a single maxim: Don't do anything stupid."
Common sense pretty much covers all the bases. It keeps you from saying something you'll later regret. It keeps you from crossing a line you shouldn't. It keeps you from getting into trouble in court, with a client or with the bar.
As Ron Friedmann, a lawyer, blogger and frequent speaker on issues pertaining to law practice management and technology, summed it up: "Lawyers should think before they hit enter."