by Robert Ambrogi BullsEye: October 2009 IMS ExpertServices™ is the legal industry's premier full-service
expert witness provider.
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."
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