Ever wonder why attorneys have been notoriously slow to engage in social media? Often, it all boils down to a risk/benefit analysis – something with which attorneys are intimately familiar.
The scales have finally reached the tipping point. The technological gap of a few years ago has closed as more attorneys are turning to social media. It’s not hard to understand why: The potential benefits of engaging in social media as a legal practice and marketing tool outweigh the risks, so long as one keeps in mind some basic guidelines.
To provide such guidelines, the American Bar Association (ABA) created its Commission on Ethics 20/20 in 2009. As we previously noted, the Commission sought to review the ABA Model Rules of Professional Conduct in light of advances in technology and increasing globalization of the practice of law, with the goal of giving guidance to attorneys and minimizing client risks. After three years, this August the ABA’s House of Delegates approved the Commission’s resolutions.
Although the amended ABA Model Rules are not binding on any specific state’s ethics rules, they help provide direction for attorneys on sometimes sticky questions related to technology use and social media. For example, what constitutes client solicitation? When is an attorney-client relationship formed via online or electronic communications? How does an attorney protect against inadvertent disclosure of client information?
Which left us wondering, do any official guidelines exist for experts? As far as we can tell, no. Perhaps experts shouldn't be left out of the loop - after all, even jurors have model jury instructions covering technology and social media use, as reported by the Administrative Office of the U.S. Courts on August 21 of this year.
Experts are a critical part of cases on which they are engaged. Whether consulting or testifying, experts can make or break a case. To help offer experts some guidance in this area, and provide an update to an article we posted in 2009, we put together our own list of top social media and technology guidelines for experts. Interestingly, many (if not all) are applicable to attorneys as well.
Top Social Media and Technology Guidelines for Experts
1. Refrain from commenting or posting any information or details about cases or legal matters. Always be sure to protect personal, sensitive, and/or privileged information regarding any matter on which you are working or on which you have been involved. Although it should go without saying, post nothing confidential. Err on the side of caution: If in doubt, don’t write it out.
2. When posting anything, remember that once you post something electronically, despite best efforts to the contrary, it will likely remain on the virtual record for all of perpetuity. Deleting something afterwards can be next to impossible. Assuming in advance it can never be deleted will cause one to think twice about whether it is prudent to post at all.
3. Be concise. (Enough said.)
4. Be consistent. Inconsistent information can provide fodder for adversaries to undermine your credentials, credibility, or provide ammunition for cross examination during deposition or trial testimony. Keep in mind there is a difference between supplementing, as required by Federal Rule of Civil Procedure 26(e)(2) in the event of changes or additions, and appearing inconsistent.
5. Keep abreast of changes in regulations and the law applicable to your areas of expertise and be aware of any risks associated with technology and social media that may be specific to your field. New sites abound and many of the privacy rules on some of the leading social media sites are constantly evolving. If you use a social media site regularly, like Facebook, Twitter, or LinkedIn, stay abreast of site updates or changes to privacy policies. Make sure you know who is in your discussion circle, pay attention to your privacy settings, and be aware of exactly who has access to view your information.
6. When in doubt, don’t put it in electronic writing. Although Federal Rule of Civil Procedure 26(b)(4), (as amended in 2010) now gives protection for discovery with respect to non-testifying, consulting experts, and seeks to protect certain draft reports or disclosures, even for testifying experts, err on the side of caution with respect to anything electronic, including email. First and foremost, follow the advice of counsel with whom you are working and, unless instructed otherwise, assume everything is discoverable. Doing so can keep you out of trouble in gray areas or should unforeseen issues arise or case circumstances change.
7. Know that anything you post electronically can (and probably will) be looked at by those seeking your services, opposing counsel, competitors, adversaries, and anyone else you can imagine. At the risk of sounding cynical, always assume what you say could (and may) be used against you or by an adversary to the case on which you are working.
8. As a general rule, refrain from discussion on matters that are outside your areas of expertise, and as a corollary, from giving legal advice in any form or fashion. (Leave legal advice to counsel, who should also be cautioned against dispensing online so as not to inadvertantly create an attorney-client relationship or violate an appicable ethical rule in their state.) While social media can be a fantastic forum for interacting with other professionals, debating unusual or recurrent issues of interest in your field, making professional and business connections, and marketing your expertise, again, use caution. There’s no need to provide information that others can readily access to undermine you credentials.
9. Finally, as an expert, never overlook the fact that your professional reputation and credibility is of paramount importance and arguably at stake every time you log on to your favorite networking site. Always strive for the highest standards of professionalism, honesty, credibility, impartiality, and objectivity.
Employing a smart social strategy can strongly impact professional credibility – affecting not only whether an expert is engaged on a case, but also the expert’s reputation (one of his or her most valuable professional assets). While this list doesn’t presume to be exhaustive, and recognizes that attorneys and experts have different roles and responsibilities in a case, it gives a good starting point for providing guidelines experts can use while engaging in social media.
Although the lure of social media can be powerful, remember that it is a tool and utilize it accordingly. Don’t lose sight of your good judgment or let unchecked emotions get the best of you. It only takes a few seconds and reactionary keystrokes to do serious and lasting harm to your credibility or professional reputation.
Have some social media guidelines for experts you would like to share? We’d love to hear about them.
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