Professional Liability Matters is pleased to present a multi-part blog series exploring a new opinion on the ethics of social media management. As sites like Twitter, Instagram, and Facebook continue to skyrocket in popularity, the use (and abuse) of social media in the business world remains a hot topic in the professional liability realm. Without fail, most networking events, seminars, and CLE presentations include a social media component and for good reason. Social media can be a great tool for all professionals, but can also be a source of risk and unexpected pitfalls. The law continues to adjust to emerging and dynamic technology; as a result, attorneys are sometimes left wondering how to best harness this technology to serve clients, and generate business while still staying in compliance with ethical rules. The Pennsylvania Bar Association recently issued an opinion that may help.
Part 1 of 2: Counseling & Connecting
Clients may question their attorneys about what is acceptable to share as part of the client’s social media presence. Pursuant to Model Rule of Professional Conduct 1.1, “lawyer shall provide competent representation to a client.” Such representation requires “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” According to the PBA, this duty imposes upon an attorney the obligation to advise clients about the content of their social media accounts, including privacy issues.
An attorney should also provide reminders about a client’s obligation to preserve information that may be relevant to any legal dispute in which the client is involved. As a lawyer, the rules also obligate you to “keep up” with this technology – according to Comment 8 to Rule 1.1, an attorney is required to “maintain” competence by keeping abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.
Another rule implicated when advising clients about use of social media is Rule 8.4, which reminds us that conduct involving “dishonesty, fraud, deceit, or misrepresentation” constitutes professional misconduct.
Lastly, let’s not forget Rules 3.3, 3.4, and 4.1, all of which require an attorney to refrain from dishonest conduct, both toward the court and other parties, and caution against obstructing or destroying anything that may have evidentiary value. Framed by these rules, the Opinion notes that tracking a client’s activity on social media may be appropriate if you would like to remain informed about developments that may influence the client’s legal dispute – after all, it is likely your adversary is also monitoring the client’s accounts. It is not likely you will prevail when your client claims debilitating injury but then posts about a recent extreme skiing vacation on Facebook. Further, it is best to nip any potentially damaging social media posts in the bud before they hit the internet, as instructing your client to take posts down may constitute violations of rules on candor to the tribunal, fairness to opposing counsel, and misconduct. Counsel your clients early and often not to post anything potentially damaging.
The PBA Opinion offers the following advice:
- Don’t destroy. Do not instruct a client to alter, destroy, or conceal any relevant information, regardless of whether this information is in paper or digital form
- Delete but keep. You may instruct a client to delete social media information that may be damaging, but you must take appropriate action to preserve this information in case it is discoverable or becomes relevant to the case.
- Keep it real. It is absolutely against the rules to counsel a client to post false or misleading information on a social media website. You may also not offer evidence from a social media site that you know is false.
- Shutdown is safest. To play it safe, advise clients to refrain from posting any information relevant to a case, no matter how tangential, on any website. To play it even safer, counsel clients to refrain from using such sites until the case concludes.
On the flip side, you may wish to establish a social media connection with your current clients, or those you have worked with in the past, to maintain and build your brand. There is no per se rule barring an attorney from connecting with a client or former client on social media, as long as this link is made in compliance with the Rules. Keep in mind that, when you connect in such a way, your posts can be viewed by many, including current and former clients.
Further, while connection with clients on social media is not prohibited by the Rules, the Opinion does not recommend that attorneys use social media to communicate with a client, for both confidentiality and diligence reasons. Indeed, an attorney should retain records of all client communications and make sure they are kept confidential, and social media interactions are not the most permanent or secure.
Stay tuned next week for Part II of this series, when we explore the PBA’s take on using the internet to contact and research non-clients.