This year’s FirmFuture conference (Dec. 1, 2011) featured a presentation on ethical issues assoicated with social media by Reid Trautz, Chair of the ABA Tech Show for 2012, who is licensed to practice in three states and counsels lawyers on how to provide superior service while maintaining work-life balance.
He highlighted the key recurring ethical rules and issues that lawyers and law firms must deal with when engaging in social media, including:
- Confidentiality rules, which require lawyers to keep client matters, and sometimes even client identities confidential.
- Advertising rules of state bars, which generally prohibit misleading statements or direct solicitations, but which also prohibit or regulate other expressions or acts in some states.
- Multi-jurisdictional issues, which can occur when social media or Internet use extends into states other than one in which a lawyer is licensed to practice.
- Rules against lawyers providing testimonials or certain kinds of testimonials in some states, such as statements of “unsubstantiated comparisons” (i.e., “Joe is the best lawyer in his field”).
- Rules against engaging in deceptive conduct or conduct that is unfitting to the profession, which can get lawyers in trouble for “pretext friending” on social media to obtain information on a competitor or an adversary in a trial or commercial matter.
- Rules making lawyers responsible for the conduct of firm employees, which do not impose strict liability but make it prudent to implement and enforce effective social media policies.
If you have questions about professional ethics constraints and social media, you should consider calling the office of the state bar in your state. In Massachusetts, the Office of Bar Counsel at the Board of Bar Overseers can answer questions of interpretation in the developing field of social technology and ethics.