The Ethics of ‘The Tweeting Lawyer”: Powerful Platform or Risky Undertaking?

Author: Monica Befa Guest Blogger

Social media platforms (e.g. Facebook, LinkedIn, Twitter, YouTube) are web-based technologies that enable users to create and share content and to participate in interactive online communications. As the use of social media grows and becomes a powerful and indispensable tool for lawyers, so do the ethical risks facing lawyers.

Why “tweeting” is powerful. It is interactive, easy to reach, fast to use, cost effective, and informative. Social media is an excellent tool that can help lawyers establish broader professional networks, build and develop brands, and enhance professional profiles. While social media can provide powerful marketing tools, lawyer should still “play” by the Rules.

Why “tweeting” is risky. It may raise risks regarding confidentiality of client information (Rule 3.3-1); inadequate client identification and verification (Rule. 4); potential negative impact on access to legal services for clients (marketing, Rule. 4.2); inadvertent lawyer-client relationships (Rule 1.1-1); and, unintended conflicts of interest (Rule 3.4).

FB-bttnWith 1.01 billion daily active users worldwide, Facebook is the world largest Internet platform that focuses on social and commercial networking. Facebook’s major benefit is the lawyers’ ability to network on the most visited online social network that may bring them unlimited referrals and clients. As Facebook has begun to adopt business-friendly features, including the “like” button, which provides free subscription service to firms’ updates, many firms (McCarthy Tétrault, Blake Cassels) have started to embrace Facebook in their daily practice.

LI-bttnWith more than 400 million registered professionals, LinkedIn is a global social networking site that serves as an online resume and an effective business networking tool. Lawyers can connect with professionals, post recommendations, and extend their network through shared contacts. While major Canadian firms have established a LinkedIn presence, LinkedIn is merely used for updates on legal topics and firms’ news.

TW-bttnWith more than 320 million monthly users, Twitter is a real-time information and free microblogging platform that enables lawyers to send 140-character “Tweets”. As tweets are sent in real time, many lawyers are now using Twitter (Rideau & Maybee, McInnes Cooper, Gowlings) to share with potential clients and referrals practice-specific links to the firms’ website, blog, and articles.

YT-bttnWith over a billion users, YouTube is a free video sharing website which enables lawyers to market their expertise to clients by posting informational videos about practice issues. These videos can be integrated into websites and blogs and imported directly to Facebook pages.

Although there is a high adoption of social media by lawyers in personal lives, lawyers have not widely embraced social media for professional purposes. 84.5% of respondents to the American Bar Association’s 2015 Legal Technology Survey indicated that they use a social network for non-professional reasons. While only 20% of the lawyers indicated that their firm was on Twitter and 37% on Facebook, more than 73% of the firms have a presence on LinkedIn.

Social media creates a risk of inadvertent disclosure of privileged or confidential information, including identities of current, former or prospective clients. Clients’ confidentiality must be maintained at all times and social media should not include any information about clients, unless clients have consented. By creating social networks through social media sites, firms run the risk of disclosing that a particular client has retained the firm. Besides, Facebook have the capability to geo-tagging in posts or photos that could reveal the geographic location of your confidential client meeting. While online communications may seem casual, lawyers should be aware that the rules are not relaxed and should protect the online confidential and privileged information as a face-to-face communication.

By enabling online communications between lawyers and prospective clients, social media platforms may create inadvertent lawyer-client relationship and trigger ethical obligations for lawyers. Online posts or tweets, responses to legal questions or suggestions to particular courses of action may be misconstrued as a consultation and create in client’s mind a lawyer-client relationship. Using disclaimers in the firm’s profile or comments before posting information online may help lawyers avoid creating inadvertent lawyer-client relationships.

When you have an urge to write on firm’s Facebook page about your day in court or tweet about a difficult client, remember that you should maintain your integrity at all times. You should be alert that your tweets or posts could be read by millions of users and your comments can have an instant viral effect with severe ethical repercussions. Posting comments of this nature might also affect public confidence in the legal profession, more generally.

Lawyers are governed by ethical rules when they market their firms which apply to written and electronic advertising, including profiles, pages, and video sharing sites. Providing free legal information on social media may be risky as it can be misconstrued as legal advice or it could point the reader in the wrong direction.

To avoid entering in a conflict of interest, when provide online services, you should follow applicable procedures for verifying clients’ identity and be mindful of the information you share online. Equally, you should ensure that you are properly identified in your online communications, including your name, contact information, and jurisdiction of practice.
Law firms should adopt social media policies to ensure that lawyers are informed of the standards of use of social media and to avoid damaging firm’s reputation through inappropriate use of the platforms.

Despite the risks associated with the use of social media, the unmatched benefits the technology brings to lawyers for promoting efficiency, legal public education and access to justice may justify investing resources to learn how to ethically use these networking platforms.

Happy tweeting!

Comments

  1. I’m a tweeting lawyer. Its oddly easy to not tweet confidential client information, the same way its easy to never mention it to my friends or in casual conversation in real life.

    Here’s what worries me about tweeting:

    1. tweeting about clients or matters where I don’t know a client is involved. If (for example) I tweet about a news event that a client of another lawyer in my firm is involved with without my knowledge, what sort of problems might I cause? I don’t have actual confidential information of the client, but what will the perception be? Will I ever have to defend myself against a claim that I disclosed confidential information about a client I didn’t know we had?

    2. I tweet with a voice. I have pretty specific views about a reasonably small number of topics and my tweets tend to reflect that. Some of my opinions are views that are not within the mainstream of Law Society-approved opinions. Maybe someday I’ll be fired by a client for tweeting on certain things, or a potential client will decide they don’t want to retain me. Maybe someday I’ll be explaining my tweets to a disciplinary panel as part of another proceeding.

    #1 worries me, and I try to stay away from known firm clients as a result even where they’re not my clients. #2 doesn’t worry me at all. In the long term I think its better for my life to be interesting and opinionated than neutered and dull.