Professional ethics and professional accounting system

TOPIC: Lawyers, Social Media and Professional Ethics/Conduct

Introduction:

Lawyers are adopting social media at an increasing rate, but many lawyers are unaware of the
potential ethical pitfalls of participating on social media platforms – even those geared toward
professional, as opposed to social interaction (such as LinkedIn).

All lawyers should be familiar with the ethical rules in their jurisdiction, including rules as they
relate to advertising, solicitation, and communication about the lawyer or law firm’s services. But
many lawyers seem to forget these rules or don’t apply them appropriately to their online activities,
including interaction on social networking platforms. Often ethical breaches occur inadvertently,
or as a result of headings or settings that the lawyer or law firm has no control over because they
are set by the platform itself. But the mere fact that the lawyer cannot control the setting doesn’t
necessarily mean that the lawyer is safe.1

Social Media and Privacy

Privacy and social media have also raised new ethical obligations. Today's constantly changing
social media environment can range from social sharing sites such as YouTube and Flickr, through
social networks such as LinkedIn and Facebook, and other media, including blogs, Twitter,
crowdsourcing and location tracking. Attorneys must be competent when using social networking
tools and at least have an understanding of the technology.

Attorneys may think about "friending" potential jurors on Facebook in order to gain more insights
into their habits, views and ways of thinking. They may also consider asking non-lawyers, such as
paralegals, to make connections with a defendant on LinkedIn or conduct research by browsing
through publicly available information on social media sites. Some state and local bar associations
have issued opinion pieces on a variety of ethical questions raised by social media, and attorneys
should be aware of relevant rulings and opinions.2

1
ETHICS OF LAWYER SOCIAL NETWORKING- Steven C. Bennett
2
“Seeking Clients via Facebook? In Ky., Bar May Regulate Social Media,” ABA Journal website, Nov. 18, 2010,
http://tinyurl.com/2fllxg8.
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Specialties

For individual Profiles, LinkedIn has eliminated the “Specialties” section that used to follow the
Summary; new users of LinkedIn (or those who had not previously completed this section) will no
longer see the option to add “Specialties” to their Profiles. Users who had previously completed
the Specialties section will now see that information displayed as part of the Summary section.

Most lawyers who completed this section in the past used it as an opportunity to list their areas of
practice. In LinkedIn in One Hour for Lawyers, we recommend that lawyers eliminate this section
so as not to cause any potential problems in jurisdictions where the ethical rules prohibit lawyers
from claiming that they are specialists without specific certification by an approved body in a
particular area of practice.

In addition to individual profiles, law firms can create Company Pages for their firms to showcase
firm-wide information and provide Updates, information about employees, etc. When completing
the “About” section on a LinkedIn Company Page, users will see an option to list the firm’s
Specialties. Firms should use caution when completing this section, and be sure that doing so will
not be a violation of ethical rules.

The New York State Bar Association Committee on Professional Ethics released Opinion 972in
June of this year which specifically advises that law firms should not list specialties on their
LinkedIn Company Page. The opinion notes that while firms are permitted to list their areas of
practice, they may not do so under a “Specialties” heading, even where (as here) the firm has no
control over the heading and cannot change it. This is so because the New York Rules prohibit
lawyers or law firms from stating that the lawyer or law firm is a specialist or specializes in a
particular field of law.

As a practical matter, this restriction should not create too many problems for purposes of creating
an effective law firm Company Page, as firms can simply list the practice areas in the general firm
description, and can list them separately as Services under the Products and Services tab of the
Company Page (which provides more opportunities for description, addition of images and
disclaimers). However, unwary firm or Company Page administrators may not be aware of the
restriction when creating the Page.
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The New York opinion specifically declines to address the “Skills and Expertise” section of the
LinkedIn Profile (individual Profiles, not law firm Company Pages), however, other jurisdictions
have addressed this issue.

Skills and Expertise

In late 2012, the Philadelphia Bar Association Professional Guidance Committee issued Opinion
2012-8, addressing LinkedIn “Skills and Expertise.” The lawyer seeking the opinion was
concerned that listing his practice areas under Skills and Expertise on LinkedIn would be akin to
saying he was a specialist in that area, which would be prohibited by the Rules.

The opinion noted that simply listing the attorney’s areas of practice under this section would be
akin to listing areas of practice on an attorney’s website, but making any further representations
regarding the level of proficiency in any particular area would be prohibited.

In all instances, attorneys should avoid placing anything on a LinkedIn profile that might be
considered ‘false or misleading.’ Unfortunately, different jurisdictions have different standards for
what would be considered misleading, and some are more restrictive than others. There is no
guarantee that your jurisdiction will follow either of these opinions, or the other existing opinions
regarding lawyers and social media use. The field continues to evolve and the rules will need to
catch up.

As always, when in doubt, seek an ethics opinion in your jurisdiction, or leave the potentially
problematic sections blank and find another way to get your information across.

Considering Staying Neutral

Social media is generally not a place for balanced, well-reasoned assessments of issues but is used
by many to express visceral reactions to news events. While attorneys may feel the urge to
immediately share their thoughts with the world, they do so at their own risk.

For example, if Congress is considering passing a law that may impact a client, an attorney may
be inclined to immediately offer her or his opinion on that law without regard to whether that
position is aligned with the client’s. Even if the attorney’s posting does not create an actual conflict,
a client certainly may be less than pleased to see its law firm advocating for a position if that
position stands to harm the client’s business, financial or legal interests.
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Likewise, commenting on ongoing cases can also be risky, but attorneys who feel compelled to do
so can limit their risks by avoiding taking a definite stance and instead presenting a balanced
analysis. That could help avoid creating any potential positional conflict with the interests of a
client of the attorney and her or his law firm.

Avoid Unprofessional Conduct

Attorneys (typically) understand that their correspondence and briefs should be consistent with the
level of decorum expected of members of the bar. Too often, that level of decorum is thrown out
the window on social media. However, despite the informality of social media, it should not be
considered as a free zone for unprofessional conduct.

A good rule of thumb is to ask whether the comment made on social media would be appropriate
if standing outside a courtroom or at a dinner party. Many times, attorneys post comments on social
media that they would never say in a face-to-face conversation, much less one with a client.

In some respects, comments on social media are worse than face-to-face conversations, as they are
generally broadcast to the world and preserved for posterity. Courts and bars are increasingly
taking notice of these issues and applying the same bar rules to social media as they do to
traditional legal correspondence.

Ethics Opinions

Even though there is no privacy right regarding information contained on social networks attorneys
must be careful when attempting to access private information contained on the sites. In New York,
lawyers may not use false or deceptive information to "friend" a party or non-party in order to
obtain private, non-public information. See The Ass'n. of the Bar of the City of New York Comm.
on Prof'l Ethics, Formal Op. 2010-2 (2010); and N.Y. State Bar Ass'n of Comm. Prof'l Ethics,
Opinion 843 (2010). Lawyers should use the normal discovery devices, such as a request for
production of documents or a subpoena, to acquire discovery from social networks.

Be Careful What You Say

Also, be careful about using terms like "Evil, Unfair Witch" and "Judge Clueless" on your blogs
and social networking sites to describe judges. A Florida lawyer was reprimanded and fined $1,200
for questioning the motives and competence of a judge. An Illinois lawyer lost her job as an
 Professional ethics and professional accounting system

assistant public defender for her blog postings where she referred to "Judge Clueless" and referred
to confidential information on her blog. Lastly, there is the story of the Texas lawyer who asked
for a continuance due to a death in the family and then posted status updates detailing her week of
drinking and partying -- which was seen by the judge on the case. The lesson learned here is -- be
careful what you say in a public space.

Court Rulings (USA)

Courts have also considered the ethical implications of social media and have granted access to
social networking sites in some cases. In Romano v. Steelcase, Inc., 30 Misc. 3d 427, 907 N.Y.2d
650 (N.Y. Sup. Ct., Suffolk Co. 2010), plaintiff claimed she had suffered permanent injuries that
affected her enjoyment of life when she fell out of an office chair. The defendant sought to access
the plaintiff's current and historic Facebook and MySpace pages, which revealed that she had an
active lifestyle and had traveled during the time period she claimed that her injuries prohibited
such activity. The court held that since neither Facebook nor MySpace guarantee complete privacy,
the plaintiff had no legitimate reasonable expectation of privacy. "When plaintiff created her
Facebook and MySpace accounts, she consented to the fact that her personal information would
be shared with others, notwithstanding her privacy settings," the court noted. "Indeed, that is the
very nature and purpose of these social networking sites, else they would cease to exist." While
the Romano case sets an important precedent with respect to the discoverability of social
networking sites courts will not likely hand over access to these sites without a showing of potential
relevance.

India:

While a client or third party may describe a lawyer’s services however they wish, the Rules of
Professional Conduct do govern the efforts by lawyers to circumvent the rules through the acts of
others.3 Particularly difficult issues arise if a third party makes statements about a lawyer or firm
that the lawyer or firm themselves could not make. Policing those kinds of statements and knowing
what, if anything, a lawyer can do to remedy that type of situation can be problematic. Assuming
such a testimonial is unsolicited by the attorney, statements made in such a testimonial still raise
 Professional ethics and professional accounting system

the concern of whether some type of a disclaimer is required to indicate that the testimonial is
unsolicited.

Extraterritorial and unlicensed practice-of-law issues exist because social networking crosses state
lines (as well as international borders). Some social networking and, particularly, blogging or
participating in chat rooms may subject an attorney to claims of unauthorized practice of law in
other jurisdictions if the attorney provides state- or federal-specific legal opinions or advice and is
not licensed to practice in the state in which a recipient participant is located. Likewise, becoming
part of a “virtual law firm” and falling victim to the potential ethical pitfalls of practicing in a
virtual law firm can be problematic.3

Another emerging practice that is quickly becoming widespread is conducting investigations by

using social networking sites and, specifically, gaining access to a witness’ or adverse party’s
social networking page (e.g., Facebook or Myspace) to find information to use on cross-
examination. There are ethical considerations and limitations on such use. For example, trying to
become friends with third parties (opponents or witnesses) on social media sites in order to pursue
investigations may run afoul of rules governing contact with such persons. The possibility of
anonymous communications on some websites presents another discreet set of issues. “Friending”
between judges and lawyers is also a source of concern. Currently there is no consistency from
state to state on how “friending” with judges is being, or will be, treated.4

Some states have approved such relationships, with qualifications.5 The Ethics Committee of the
Kentucky Judiciary answered a “Qualified Yes” to the question: “May a Kentucky judge or justice,
consistent with the Code of Judicial Conduct, participate in an Internetbased social networking
site, such as Facebook, LinkedIn, Myspace or Twitter, and be ‘friends’ with various persons who
appear before the judge in court, such as attorneys, social workers and/or law enforcement

3
Michael W. Hoskins, “‘Virtual’ office reflects broader changes in practice of law,” The Indiana Lawyer,
http://www.theindianalawyer.com/ virtual-office-reflects-broader-changes-inpractice-of-
law/PARAMS/article/24534,
4
“Judicial Ethics, the Internet, and Social Media” (The Bencher, November/December), The American Inns of
Courts website, Dec. 14, 2010, http://www.innsofcourt.org/Content/ Default.aspx?Id=5501
5
Ethics Committee of the Kentucky Judiciary, Formal Judicial Ethics Opinion JE-119 ; Ohio Board of Commissioners
on Grievances and Discipline, Opinion 2010-7
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officials?”6 More recently, in a Dec. 3, 2010 advisory opinion, the Supreme Court of Ohio’s Board
of Commissioners on Grievances and Discipline advises judges that social media use and
“friending” on social networking sites is permitted, but must be done with caution. 7 Others have
banned the practice outright.8 At least one state has actually imposed discipline based upon
“friending” between judges and lawyers.9

Many states including Indiana, have not taken a stand on this subject and have no express
prohibitions. Of related concern, government employees may be subject to specific legal and
regulatory considerations regarding participation in social networking sites.10

Already there are many and varied iterations of each of the issues discussed in this article.
Variations on these themes can and undoubtedly will arise as new issues with social media are
discovered, which is happening with great frequency. Although the focus on ethical concerns in
the context of social networking is fairly new, many of the underlying ethics principles are not
new at all. Rather, the social networking environment is a virtual reflection of social relationships
in the real world. The interplay between the virtual world and the real world is a window into much
broader and nuanced questions that are present in day-to-day conduct and relationships regardless
of the medium.

We cannot talk about social networking in isolation without considering how lawyers operate in
day-to-day relationships and without considering the norms that govern those relationships in the
real world. Consequently, rules, advice or guidance relating to how we behave in the real world
must be applied in the virtual world context.

But, as with all things virtual, there are important distinctions between communications in the
virtual world and communications in the real world. The application of ethical principles can turn
on those differences. From a practical perspective, with a face-to-face communication, or even
with a letter or a phone call, we can take action to correct an inaccurate statement, retrieve a letter,
recall a statement or take some other immediate corrective action to cure any perceived

6
Ethics Committee of Kentucky Judiciary, Formal Judicial Ethics Opinion JE-119
7
Ohio Bd. of Commissioners, Opinion 2010-7
8
Florida Judicial Ethics Advisory Committee, Opinion Number: 2009-20
9
Matter of Terry, North Carolina Judicial Standards Commission Inquiry No. 08-234
10
United States District Court for the Southern District of Indiana Social Media and Social Networking Policy for
Chambers’ Staff, http://indylaw.indiana.edu/clinics/ internships/SocialNetworkingPolicy.pdf.
 Professional ethics and professional accounting system

miscommunication, misunderstanding or incorrect interpretation. In contrast, Internet

communications have a life of their own. The boundaries are not as clear or as well understood as
the boundaries we may recognize in dayto-day real life communications. Internet communications
can easily be broadcast to parts unknown and to unintended audiences.

So does this mean we need special rules for when lawyers participate in social networking, or do
we already have the rules that should apply in this different platform or context? Does this mean
networking communications via social media should be treated any differently than any other form
of media? With the exception of Florida,11 most states’ ethics rules do not specifically address an
attorney’s conduct when it comes to networking via social media or other electronic means of
networking. In other states, interpretations of existing rules as they apply to new media are
beginning to emerge. The South Carolina Bar has issued an ethics advisory opinion about a free
website, which is offered by a company that posts information about attorneys nationwide,
featuring peer endorsements and client reviews and ratings. The opinion addresses the questions
of whether attorneys may claim the Company X website listing, including peer endorsements,
client ratings and Company X ratings, and whether attorneys may invite peers, clients or former
clients to post comments and/or rate the lawyer on Company X’s website.12 The Kentucky Bar has
proposed a regulation that is intended to regulate the conduct of attorneys in Kentucky who reach
out to potential clients through social media such as Facebook and Myspace, and would prohibit
solicitations through social media unless lawyers pay a $75 filing fee and permit regulation by the
bar’s Advertising Commission.13

K. Guna Sekhar
2015043

11
Rules Regulating the Florida Bar, Rule 4-7, “Information About Legal Services,” and Rule 4-7.6 “Computer-
Accessed Communications.”
12
South Carolina Bar Ethics Advisory Opinion .
13
“Seeking Clients via Facebook? In Ky., Bar May Regulate Social Media,” ABA Journal website, Nov. 18, 2010,
http://tinyurl.com/2fllxg8.