In November 2016, the DC Bar Legal Ethics Committee issued Ethics Opinion 370 (Social Media I) and 371 (Social Media II), which address the use of social media by lawyers for marketing and personal use and for providing legal services.
The two opinions aim at increasing awareness of the ethical issues generating from the increasing use of social media by attorneys.
The two opinions highlight how lawyers have a duty to maintain competence and to understand how posting on social media works.
D.C. Ethics Op. 370 (Social Media I) lists the permissible use of social media.The opinion clarifies that hrough social media attorneys may
- connect with clients, former clients or other lawyers. They need to do so with caution, making sure to:
(i) avoid the creation of an inadvertent attorney-client relationship (see D.C. Ethics Op. 316 and District of Columbia Bar Opinion 302);
(ii) avoid conflicts of interest for the lawyer or the lawyer’s firm;
(iii) protect clients’ confidences and secrets. “Particular consideration must be given to the issue of maintaining and protecting the confidentiality of communications on social networking sites”;
(iv) write about their own cases on social media sites or blogs only with their clients’ informed consent;
(v) respond with caution to comments or online reviews from clients;
(vi) identify “specialties,” “skills” and “expertise” on social media, provided that the representations are not false or misleading. See also District of Columbia Bar Opinion 249;
(vii) review their social media presence for accuracy. If a lawyer controls or maintains the content on a social media page, then the lawyer has an affirmative obligation to review the content on that page and remove endorsements, recommendations or other content that are false or misleading.
In particular, the opinion warns that “Most social networking sites require an e-mail address from the user as part of the registration process. Then, once the social networking site is accessed by a lawyer, the site may access the entire address book (or contacts list) of the user. Aside from any data collection purposes, this access allows the social media site to suggest potential connections with people the lawyer may know who are already members of the social network, to send requests or other invitations to have these contacts connect with the lawyer on that social network, or to invite non-members of the social network to join it and connect with the lawyer”. It is therefore advisable for a lawyer to avoid giving access to his or her contacts since this may create “impermissible, inappropriate or potentially embarrassing” connections.
D.C. Ethics Opinion 371 (Social Media II), which concerns the use of social media in providing legal services. The opinion discusses:
(I) the need for lawyers to understand social media;
(II) the confidentiality risks in communicating with clients on social media;
(III) the role of social media as source of information in litigation. The latter requires lawyers to evaluate six main issues:
- Client social media, which (i) may require lawyer to review client’s social media relevant posts, (ii) may be subjected to review by adversaries, (iii) may cause the lawyer to include advice to clients about social media and document preservation, or advice about whether social media postings violate statutory limits on public statements or marketing.
- Social media of adverse parties and counsel, which may require investigation of potentially relevant social media posts of adverse parties. In conducting such investigations, lawyers shall be mindful of (i) connecting to social media of represented or unrepresented persons, (ii) requesting reasonable litigation holds on adversaries’ social media, (iii) notifying the adverse party in case of inadvertent disclosure, (iv) considering how social media information will be authenticated and presented as evidence at trials or hearings.
- Remember that all of the above considerations about investigation and use of social media of adverse parties apply to non-party source of facts, including witnesses.
- Access of social media sites of jurors.
- Review of public social media of judges, arbitrators, regulators, and other neutrals, avoiding inappropriate ex parte communications in these last two instances.
- Lawyers and law firms’ social media accounts. To this regard, see DC Ethics Op. 370.
IV) Finally, the Opinion advises lawyers on ensuring supervision of other lawyers and staff while conducting social media investigations or posting.
For more information, Francesca Giannoni-Crystal.
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