Social media are transforming the way people communicate, creating opportunities–and also risks–for those who venture into this freewheeling and ever-changing environment. Attuned to the import of precise and nuanced communications, lawyers especially need to be aware of the openings and pitfalls of these new media.
On-line social networking is changing the way people communicate, including lawyers. A 2009 global study of the legal industry’s use of social media technology found that 75 percent of lawyers were members of a social networking site, up from about 54 percent in 2008.7 The “Blawg Directory” on the ABA Journal website links to over 6,500 legal blogs, and there was a 15 percent growth in the number of law firms that blogged between January and June 2009.8Approximately one in five corporate counsel and one in four attorneys in private practice believe that there is a high likelihood that online networks will change the practice and business of law in the next five years.9 Indeed, many law firms have already reported increased business due to blogs or other online social networking activity and many attorneys have come to rely upon electronic message boards and blogs as a resource for learning information and as a way of demonstrating expertise in a particular area of law.
Social media and social networking present significant professional and business development opportunities for attorneys. However, if improperly used, social media may lead to a variety of adverse consequences, including violations of the rules of professional conduct and liability. Various lawyers and judges have been disciplined or sanctioned because of their social media usage. So what do attorneys need to know about using social media technology?
Over the past few years, the use of social media has exploded nationally and internationally. The statistics are eye-popping:
- Facebook has more than 500 million active users, 50 percent of whom log onto Facebook on any given day.1 Earlier this year, traffic on Facebook.com began to outpace traffic on Google.com.2
- People watch 2 billion videos a day on YouTube and every minute, 24 hours of video is uploaded onto YouTube.3
- There are 70 million LinkedIn members, and executives at all Fortune 500 companies are members of LinkedIn.4
- Although it is difficult to count the number of blogs, it is estimated that there are more than 143 million blogs, and that thousands or tens of thousands of new blogs are started each day.5
- In 2009, people spent more time on social media sites than on email.6
SOCIAL MEDIA & THEIR RISKS
According to Wikipedia, “[s]ocial media use web-based technologies to transform and broadcast media monologues into social media dialogues.”10 Examples of social media include: blogs; microblogs (such as Twitter); social networking sites (such as Facebook, MySpace, and LinkedIn); video-, music-, and picture-sharing sites (such as YouTube and Flickr); electronic message boards and mailing lists (such as LISTSERV); and wikis or collaborative websites (such as Wikipedia). Each of these offers opportunities for lawyers, and all pose some risks. Among these are:
Inadvertent Attorney-Client Relationships
One of the greatest risks of attorneys’ social media usage is the risk of inadvertently forming an attorney-client relationship. Under Minnesota law, the existence of an attorney-client relationship is a question of fact and depends upon the communications and the circumstances. An attorney-client relationship can be established under a “contract theory” if the circumstances, relationship, and conduct of the parties demonstrate an agreement to perform legal services. In addition, an attorney-client relationship can be established under a “tort theory” if a person seeks and
receives legal advice from an attorney in circumstances in which a reasonable person would rely on the advice.11 Although there is no bright, clear line denoting when an attorney-client relationship is formed, general communications about the law are less likely to create an attorney-client relationship, whereas more specific communications about the law and an individual’s particular circumstances are more likely to create an attorney-client
relationship.
How this analysis will be applied to attorneys’ social media communications has not been clearly defined. It seems, however, that the risk that an attorney-client relationship will be formed if an attorney simply “friends” or “connects with” an individual on Facebook or LinkedIn should be fairly low because, in most cases, there has been no legal advice provided or sought in connection with such a request. However, if the attorney answers an individual’s specific legal question while participating on a networking site, a message board or a blog, the likelihood that an attorney-client relationship will be implied increases.
If an attorney-client relationship is formed, the Minnesota Rules of Professional Conduct (MRPC) apply, including rules related to confidentiality and conflicts of interest, which are discussed below. Further, if the attorney acts negligently or in breach of contract, the attorney can be liable for malpractice. For these reasons, attorneys should exercise caution before answering any legal questions or otherwise providing legal information on social networking sites, and if appropriate, attorneys should use a disclaimer to indicate that no attorney-client relationship has been formed.
Confidentiality
Rule 1.6 of the MRPC provides that except under certain circumstances, an attorney shall not knowingly reveal information relating to the representation of a client without the informed consent of the client. The comments to the rule make it clear that an attorney must act competently to preserve confidentiality, including taking reasonable precautions to prevent the information from coming into the hands of unintended recipients. Needless to say, attorneys should generally not communicate with clients about a legal representation using social media technology because privacy cannot be assured on most such sites. In addition, attorneys must be mindful of their confidentiality obligations in both their professional and personal uses of social media. The Illinois Attorney Registration and Disciplinary Commission filed a complaint against an assistant public defender who commented about her clients on her blog in a way that made it possible to identify the clients, mentioning their inmate identification numbers, first names, and personal details.12 For example, she allegedly said in one post:
Dennis,” the diabetic whose case I mentioned in Wednesday’s post, did drop as ordered, after his court appearance Tuesday and before allegedly going to the ER. Guess what? It was positive for cocaine. He was standing there in court stoned, right in front of the judge, probation officer, prosecutor and defense attorney, swearing he was clean and claiming ignorance as to why his blood sugar wasn’t being managed well.
Although the attorney’s conduct in that case was fairly egregious, far more benign social media usage may violate an attorney’s confidentiality obligation. For example, it could be a violation of MRPC 1.6 for an attorney to post on his or her blog, Facebook or LinkedIn page “I’m working on a motion to dismiss in the ABC case, arguing XYZ.” Similarly, an attorney may inadvertently reveal confidential information by allowing a site, such as LinkedIn, to import Outlook contacts. In addition, many attorneys have found that posting inquiries on specialty listservs and other message boards can be a helpful research tool when confronted with a difficult issue. Most such inquiries are posted as hypotheticals or as general inquiries and do not reveal the identity of a client or other information related to the representation of a client. However, attorneys must be cautious in posting such inquiries to be sure that the attorney is not revealing information from which the client might be identified or other confidential information disclosed.
Conflicts of Interest
Attorneys’ use of social media may also create problematic conflicts of interest. The types of conflict issues that may result from social media usage generally fall into three categories.
First, an attorney who communicates about legal issues on a social media site may violate MRPC 1.7 by communicating with a person who is adverse to a current client. This is a particular risk because the attorney may not know the identity of the person with whom he or she is communicating.
Second, attorneys—particularly those at large firms—must be mindful of issue conflicts: the risk that their social media postings will conflict with a position that they, or an attorney at their firm,13 is taking on behalf of a client. The comment to MRPC 1.7 states that a conflict of interest exists “if there is a significant risk that a lawyer’s action on behalf of one client will materially limit under Rule 1.7 (a)(2) the lawyer’s effectiveness in representing another client in a different case.”14
Third, if an attorney acquires confidential information about a prospective client, MRPC 1.18 prohibits that attorney from using or revealing the information learned in the consultation. Acquiring information from a prospective client on a social networking site could create a conflict with a current client under MRPC 1.7, if the representation of the current client would be “materially limited” by the attorney’s duty under Rule 1.18 to the prospective client.15 In addition, under Rule 1.18, a firm may be disqualified from representing a client with interests adverse to a prospective client in the same or a substantially similar matter.16 Therefore, if an attorney obtains confidential information about a prospective client on a social media site, the whole firm may be conflicted out of representing a client adverse to the prospective client.
Communications and Advertising
Lawyers’ use of social networking sites may implicate advertising and communication rules as well. With regard to communications by attorneys, MRPC 7.1 states that a lawyer cannot make a “false or misleading communication about the lawyer or the lawyer’s services.” Attorneys must be careful not to “puff” about their legal skills on a social media site or otherwise. Similarly, attorneys should be aware of MRPC 7.4, which prohibits attorneys from claiming that they are specialists unless they are an admiralty lawyer, a patent lawyer, or have received a certification by a specific authorized entity. Some social media tools may make it easy for an attorney to inadvertently violate this rule. For example, LinkedIn allows users to list their “specialties” on their user profile: Does an attorney violate Rule 7.4 by listing his or her areas of practice in this section of a LinkedIn profile? The Minnesota Lawyers Professional Responsibility Board has not issued an opinion on this issue, but attorneys who use LinkedIn may be well-advised to leave this section of their profile blank. The “Answers” feature of LinkedIn may also cause an attorney to inadvertently violate Rule 7.4. If an attorney responds to questions on LinkedIn and amasses a certain number of best response votes from other viewers, the site automatically designates the attorney as an “expert.”17
Similarly, attorneys must ensure that their social networking activities do not violate any rules related to attorney advertising. Some social media sites, such as a LinkedIn profile, a blog dedicated to a legal subject, or a YouTube video may constitute attorney advertising. It’s important to remember that under MRPC 7.2, advertisements must comply with other rules of professional conduct and must include the name of at least one lawyer or law firm that is responsible for the content. MRPC 7.2 also prohibits lawyers from offering anything of value to a person for recommending a lawyer’s services except under certain circumstances. This rule could be implicated by the “recommendations” feature on LinkedIn. This feature allows individuals to write testimonials about other members in a specific section of their profile. Lawyers who agree to make reciprocal recommendations need to review MRPC 7.2 to make sure that they are in compliance. In addition, if a client or colleague recommends an attorney on the attorney’s LinkedIn profile, the attorney must ensure that the statements made are true. LinkedIn users control their own profiles, so failing to take down a recommendation that contains a false or misleading communication about the lawyer or the lawyer’s services could violate Rules 7.1 and 7.2.18
Unauthorized Practice of Law
Under MRPC 5.5, a lawyer cannot practice or assist another person in practicing if they are not authorized to practice in that jurisdiction. With social media technology, there are no physical borders, making it easier for attorneys to violate this rule. For example, a lawyer in Minnesota who provides specific legal advice on a social networking site to an individual in Florida may be practicing without authorization if the lawyer is not licensed in Florida.
Duty of Candor
Minnesota attorneys’ duty of candor under MRPC 3.3 is not changed in any way by social media, but social media make it easier to get caught violating this rule. For example, in Texas, a lawyer asked for an extension in her case due to a supposed death in her family. After viewing the attorney’s Facebook site, the judge found out that the attorney had apparently been partying during the extension.19
Improper Contact and Misconduct
Although establishing contacts on LinkedIn or Facebook may seem beneficial or at least harmless, certain “relationships” can give the impression that the legal system is acting unfairly and lacks impartiality. Under MRPC 8.4, lawyers are prohibited from stating or implying that they can influence government agencies or officials, so lawyers should be aware of how online relationships might appear to others. For example, a Florida ethical opinion states that a judge should not “friend” any lawyer appearing before the court.20 Conversely, a judicial conduct opinion in South Carolina stated that a magistrate judge could be Facebook friends with law enforcement personnel and court employees as long as nothing regarding the magistrate’s position was discussed.21 Minnesota has not yet addressed this issue.
MRPC 8.4 also prohibits attorneys from engaging in conduct involving “dishonesty, fraud, deceit, or misrepresentation” or conduct that is “prejudicial to the administration of justice.” Attorneys must be mindful of the relationship between this rule and their use of social media. For example, in Minnesota, a prosecutor allegedly posted negative comments about Somalis on her Facebook page related to a case she was working on.22 The defense attorney asked for a new trial because of the behavior. The request was denied because there was no proof that jurors had seen the alleged comments or that the comments had actually been posted. As another example, the Philadelphia Bar Association Professional Guidance Committee has ruled that social media “pretexting”—asking a third party to “friend” a witness on a semiprivate social networking site such as Facebook or MySpace in an attempt to elicit more information about the person—is a deceptive practice prohibited by Pennsylvania Rules of Professional Conduct 8.4 and 4.1.23 Such conduct may also violate the Stored Communications Act (SCA), which prohibits knowing or intentional unauthorized access to “a facility through which an electronic communication service is provided.”24 This includes unauthorized access to a password-protected email account or social networking site.
SOCIAL MEDIA AND LITIGATION
As social media use proliferates, all attorneys, even those who do not use social media themselves, should strive to be informed about the impact of social media and social networking on litigation or potential litigation. Attorneys can discover information about social media and social networking usage through both formal and informal discovery methods, such as Google searches, and many courts have allowed information from social networking sites to be used in court proceedings. Social media use is having a particularly significant effect in certain areas of practice. Family law attorneys have used information from social networking sites—such as posted confessions, photos, income and employment information, and evidence of inappropriate relationships—to push for quick settlements in divorce proceedings and custody battles.25 Similarly, in the area of employment law, social media and social networking increasingly are becoming sources of evidence, and in a few cases, even the subject of litigation. For example, an employer recently filed a complaint against a former employee, alleging in part that the former employee violated a nonsolicitation provision in her employment agreement by communicating with former coworkers on LinkedIn.26 Because social media and social networking have become such a significant means of communication, attorneys involved in litigation will want to consider the impact that both their client’s and the adverse party’s social networking and social media usage may have on a case.
CONCLUSION
The world of communications is changing dramatically with the explosion of social media and social networking. While there is no denying the tremendous opportunities presented by these web-based technologies, attorneys also need to recognize the risks and understand the interplay between their practices, their ethical duties, and their own use of social media and social networking.
The authors gratefully acknowledge Jami Crespo, a University of Wisconsin Law School student and 2010 Gray Plant Mooty summer associate, for her assistance with this article.
NOTES:
1 http://www.facebook.com/press/info.php?statistics
2 http://money.cnn.com/2010/03/16/technology/facebook_most_visited/index.htm
3 http://www.youtube.com/t/fact_sheet
4 http://press.linkedin.com/about
5 http://blogpulse.com http://hattrickassociates.com/professionalbloggingservices/everything-counts/
6 Teddy Wayne, “Social Networks Eclipse E-mail,” The New York Times, (05/17/09), available at http://www.nytimes.com/2009/05/18/technology/internet/18drill.html.
7 Leader Networks, “A Global Study of the Legal Industry’s Adoption of Online Professional Networking, Preferences, Usage and Future Predictions,” Leader Networks (2009), available at http://www.leadernetworks.com/documents/Networks_for_Counsel_2009.pdf.
8 Jay M. Jaffe, “Blogging for Lawyers: Is it Really Worth It?,” Jaffe PR White Paper available at http://www.jaffepr.com/about-us/industry-insight/white-papers/blogging-lawyers-it-really-worth-it.
9 Id. at 20.
10 http://en.wikipedia.org/wiki/Social_media
11 See In re Paul Abbott Co., Inc., 767 N.W.2d 14, 18 (Minn. 2009) (citations omitted); Pine Island Farmers Coop v. Erstad & Reimer, P.A., 649 N.W.2d 444, 448 (Minn. 2002); Togstad v. Vesley, Otto, Miller & Keefe, 291 N.W.2d 686 (Minn. 1980).
12 See In The Matter of Peshek, No. 6201779 (Ill. Atty Reg. & Disc. Comm’n) (2009), available at: https://www.iardc.org/09CH0089CM.html.
13 MRPC 1.10 states, “While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rule 1.7 or Rule 1.9, unless the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.”
14 MRPC 1.7, cmnt. 24.
15 See MRPC 1.7; see also ABA Formal Opinion 90-358 (09/13/90).
16 MRPC 1.18(c).
17 Susan Cartier Liebel, “12 Social Media Ethics Issues for Lawyers,” Build A Solo Practice @SPU (03/11/10), available athttp://buildasolopractice.solopracticeuniversity.com/2010/03/11/a-dozen-social-media-ethics-issues-for-lawyers/.
18 MPRC 7.1, comment 3 states that advertisements that truthfully report a lawyer’s achievements could be misleading if a presented in such a way that a reasonable person could expect the same results in a similar case. Similarly, comment 3 makes clear that unsubstantiated comparisons of a lawyer’s services or fees may be misleading if a reasonable person would conclude that the comparison could be substantiated.
19 Molly McDonough, “Facebooking Judge Catches Lawyer in Lie, Sees Ethical Breaches,” American Bar Association (07/31/09), available athttp://www.abajournal.com/news/article/facebooking_judge_catches_lawyers_in_lies_crossing_ethical_lines_abachicago/.
20 Ken Strutin, “Social Networking Pitfalls for Judges, Attorneys,” New York Law Journal (03/17/10), available athttp://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202446299127.
21 Id.
22 Abby Simons, “Judge Denies Requests for New Trial Based on Prosecutor’s Alleged Facebook Postings,” Star Tribune (03/11/10), available athttp://www.startribune.com/local/87360937.html?elr=KArksUUUoDEy3LGDiO7aiU.
23 The Philadelphia Bar Ass’n Prof’l Guidance Comm., Opinion 2009-02 (March 2009), available at http://www.philadelphiabar.org.
24 18 U.S.C. §§2701, 2707; Konop v. Hawaiian Airlines, Inc., 302 F.3d 868 (9th Cir. 2002) (holding that an employer’s monitoring of a password-protected website could be a violation of the SCA).
25 Sylvia Hsieh, “Divorce Attorneys are Missing Evidence on Social Media Sites,” Minnesota Lawyer (07/06/09); Sylvia Hsieh, “Family Law Attorneys are Missing Evidence on Social Networking Websites,” Lawyers USA Online (06/25/09), available at http://lawyersusaonline.com/blog/2009/06/25/divorce-attorneys-are-missing-evidence-on-social-media-sites/.
26 TEKSytems, Inc. v. Hammernick, Case No. 0:10-cv-00819-PJS-SRN (D. Minn), Complaint filed 03/16/10.
Michael C. Flom is a principal with Gray Plant Mooty and practices in the areas of business, real estate, and commercial litigation. Serving as Gray Plant Mooty’s general counsel, he is extensively involved in legal ethics and lawyers’ professional responsibility, and is a frequent lecturer on these topics.
Abigail S. Crouse is a principal at Gray Plant Mooty and practices in the areas of labor and employment law, higher education law, and trusts and estates litigation. She is a member of Gray Plant Mooty’s professional review committee.
