Social media platforms allow anyone and everyone to communicate and exchange ideas, opinions, and news with a broad audience — the entire world. We are now able to communicate in ways and at speeds we never though possible. Platforms such as Facebook, Instagram, Twitter, LinkedIn and YouTube have helped many people launch their careers and become overnight sensations. In addition, they allow professionals to easily self-promote, network, and research professional contacts.
However, not all professions are created equal. Maintaining a strong online presence and engaging in social media is a marketing must-have for many businesses. On the other hand, lawyers and legal professionals who engage in social media face several ethical challenges.
Earlier this year, the American Bar Association’s Committee on Ethics and Professional Responsibility (ABA) gave lawyers the okay to scour the publicly available social media profiles of jurors and potential jurors for research purposes.
While some lawyers were able to breathe a sigh of relief knowing that they were could now use social media for work-related purposes — which is considered acceptable if not expected in most other professions — without the fear of legal or professional discipline, this decision only added to the debate and confusion over how ethical rules apply to the ever-evolving world of social media.
Aside from researching jurors, representing a client in the age of social media poses its own risks and get complicated very quickly. The increased use — and dependence — on social media has created an enormous amount of evidence and discovery material, as users continue to post personal and intimate details of their lives. Attorneys are well aware of that fact that social media pages are goldmines in terms of learning about an opposing party, and it’s no secret that government law enforcement agencies take advantage of this as well.
However, the majority of laws and rules that govern how lawyers can advise their clients regarding handling of their personal information were created well before social media even existed. Perhaps the most problematic — and unanswered — question is what advice an attorney can ethically and legally give a client who has posted potentially incriminating material on their social media account.
Another challenge attorneys face is the risk of violating rules that dictate using social media for advertising and professional self-promotion. To help lawyers navigate the ethical challenges they encounter using social media, the Commercial and Federal Litigation Section of the New York State Bar Association created Social Media Ethics Guidelines for practicing attorneys in New York state.
For example, attorneys who use social media to promote their legal services must be sure to include all the same disclaimers used in print, which can be difficult in to do in a “tweet” that must be 140 characters or less. Any abbreviations used must be commonly recognized and understood. Additionally, attorneys are not ethically allowed to promote themselves as “specialists” on social media in a certain area of law unless they are certified by an accrediting body approved by the state’s bar association, among many other nuances.
It seems social media has opened up a Pandora’s box of sorts for legal professionals. While they face many challenges, overall, the benefits social media offers outweigh the cons.