Legal ethics and social media resource roundup
There are lots of statistics on social media-use in the legal field, especially as part of law firm marketing efforts. Many statistics also point to which platforms firms generally prefer to use and which ones bring them the most clients. Of course, there are attorneys who don’t use social media, generally because they either don’t have time or because they have ethical concerns. (pssst, there’s still quite a few of you). For an interesting breakdown and high level look at the statistics, check out a recent blog post.
To me, the investment in time and understanding the ethics are equally important considerations that should be weighed carefully if you’re an attorney who doesn’t use social media yet (but you’re thinking that you should). Making social media work for you takes a considerable amount of time and dedication and while some firms outsource their social media interaction, those that see the highest rate of return have probably been personally using their favorite platform for an extended period of time and continue to do so for their own enjoyment.
I don’t push social media use as a rule, mostly because I work with a lot of the big guys and see first-hand how much time and labor goes into effective social media campaigns. As Larry Port of Rocket Matter said so well in an article published in A Lawyer’s Guide to Social Media Marketing from Attorney At Work (titled “Social Media: Oversold and Doesn’t Deliver), “if you don’t like to blog, tweet or post, or if, frankly, you’re not good at it, there are much better ways to spend your time.” I wholeheartedly agree. (First disclosure: I have started and abandoned enough social media accounts to know that some things can’t be forced.)
Complex legal ethics issues
Some attorneys forgo social media because they’re wary of making an ethical faux pas. That’s understandable as the line that defines what’s legally acceptable continues to blur as social media usage becomes more prevalent. One ethical issue right now is whether attorneys need to be competent in social media, even if they don’t use it. Jabez LeBret, also at Attorney at Work, writes that, at some point, attorneys may be required to understand how various platforms work so they can explain to their client how to avoid harming their case through social media posts. He also explains that other ethical considerations need to be focused on “solicitation, advertising, discovery, confidentiality.” Jabez brings up some interesting points on what constitutes commercial speech regarding social media posts and ethical obligations. He also discusses the differences in state policies regarding friending for discovery and gives some simple tips (for example, how incorporating one simple statement in the “About” section of social media profile can help ease some ethical concerns and accompanying links to in-depth topic exploration).
Another interesting example of why competency rules may come to include social media is a post written by attorney Paul Wallin over at the law corporation of Wallin & Klarich, (second disclosure: I have a working relationship with Wallin & Klarich) entitled “Facebook Cited in One-Third of Divorce Cases.” The piece says that Facebook was cited in one-third of the 200 divorce cases analyzed by a legal firm in the UK, and that these numbers will only increase as Facebook continues to grow past the 1 billion user mark. Statistics like this reinforce that the importance of an attorney being able to advise his client on how social media could impact his case.
Nicole Black also discusses some ethical concerns, including the potential attorney obligations involving the preservation and turning over of social media for discovery. Black’s article at Sui Generis’ – A New York Law Blog, discusses two cases involving social media evidence. In the first case, the Florida Bar issued a proposed advisory ethics opinion that an attorney can advise her client to “clean up” their social media accounts via privacy settings or deletion, as long as a full copy remains with the attorney. A perceived obfuscation of a social media discovery request is at the heart of the matter in the second case, with a federal court writing that it was “troubled” that when asked for a copy of his Facebook records, the plaintiff lied and said he didn’t have a Facebook account. The court then demanded the plaintiffs account credentials and access to all 4,000 pages of his account.
My intent is to show that there are many issues involving social media and to suggest that if you aren’t already in the swing of things, to consider staying off the radar until you’re familiar with your state bar association guidelines and pending opinions. I hope that you can see how social media can be a very important tool for your firm so you can fully appreciate why everyone keeps talking about it. No matter how you feel about it, social media is here to stay and, at some point, you’re going to have to get involved.
Teresa Shaw is an SEO consultant with 10 years of experience helping attorneys and law firms across the country increase public awareness of their services.