Get Social, But Stay Ethical

getsocial

By Shaun Jamison

 You may have heard the saying, “The only thing worse than doing business with Walmart is not doing business with Walmart.” The saying rewritten for social media it might read, “The only thing worse than not using social media is using it badly.” You and your clients must have a social media presence to protect your reputation, your position in the marketplace and to grow your businesses and careers. However, there are risks. As you jump in or continue using social media, it is important to understand the risks your clients’ use of social media provides, advice for ethically communicating legal services to prospective clients and common mistakes lawyers make when using social media.
While the risks of social media for your clients will depend on their industry regulations — for example, a dry cleaner would have different concerns than someone working in the financial industry — businesses and individuals have many concerns in common.

Public disclosure of private information. There is information that is personal, confidential or proprietary which could be anything from life threatening to embarrassing to a loss of competitiveness. Someone might disclose something maliciously, such as a former spouse posting “revenge porn” or a disgruntled employee giving the “dish” on their former employer. It could be inadvertent where the employee didn’t understand the information was confidential or a child didn’t understand they should strip out location information from photos they post.

Damage to reputation. This risk emanates both from the public and from employees … even executives … even you. It is critical to run searches in major social media sites and have a Google alert set up so you won’t have a delay in responding to something posted online. Domino’s Pizza learned this the hard way. A couple of employees posted a prank video where they did unsanitary things to food they claimed would be delivered. Domino’s didn’t know about the video until a blogger asked it about it. By then, the Internet was full of commentary on the video. Domino’s thought it might blow over, but it didn’t. The brand suffered as a result. In the words of their spokesman, “We got blindsided by two idiots with a video camera and an awful idea.”

Liability. A careless remark online can result in a libel lawsuit. Posting that cute picture of a kitten with the caption “hang in there” might be a copyright violation with significant penalties, though you are much more likely to get sued over posting a bootlegged concert video. Employee postings making allegations about competitors or worse, customers can cause conflict and liability. Online harassment can result in civil and criminal consequences.

As mentioned above, each industry has its own regulations which may intersect with social media so it’s important to know your clients’ industries.

Ethically communicating legal services to clients requires both common sense and an understanding of the Rules of Professional Conduct in your state. Ironically, effective marketing in a social networking situation tends to match up well with the rules concerning solicitation. Try connecting with someone online with whom you don’t have a prior relationship and immediately launch into a sales pitch. Will it work? Rarely. More likely, they’ll “unfriend” you. The pertinent rule is Model Rules of Prof ’l Conduct R. 7.3. With regards to online contact, unless you fit into the exceptions of family, close relationships or prior professional relationship, you cannot have real time electronic contact soliciting employment. If you do contact someone in need of services through a non-real time solicitation and they don’t fit within the exceptions, you need to include “advertising material” in the message. Naturally, you cannot harass, coerce or contact people who’ve said they aren’t interested. Each state’s rules can vary. For example, California’s Rule 1-400 looks at direct solicitation only with regards to inperson and telephone unless the person solicited is already represented. California’s standards have a long list of expectations regarding the content of solicitations and communications. You may also need to archive all of your social media and store it for a period of years depending on your jurisdiction.

Other areas of concern are endorsements and recommendations. Social media makes it easy for clients and other lawyers to post both positive and negative feedback about lawyers. If the endorsement is not truthful or is misleading, you must attempt to remove it. Avvo.com, a website that hosts information about attorneys, allows you to remove peer endorsements. This is helpful when someone you don’t know endorses you hoping you’ll endorse them back. Again, you must know your local rules. If a recommendation sounds like a promise of results, that’s a problem.

Anything that could put you in ethics trouble for something you said or did at a cocktail party, you shouldn’t be doing it on social media. This is all the more true because anything on the Internet is persistent and easily replicable. Once it’s out there, it’s out there. Review your state’s ethics rules before trying anything new and at least once a year to refresh yourself.

Other than advertising and soliciting issues, lawyers can find trouble other ways. A common issue is over-sharing their client matters online. You can be sure your opposing counsel knows if you like to narrate your entire case online. Don’t do that. You have to be very conscious of what information you are putting out there which may be used against your client in your case.

Besides potentially jeopardizing your case strategy, there is an additional issue of potentially sharing private information about your clients. Despite not using the client’s name, people may be able to piece together their identity by combining what they know with what you’ve made publically available. Also, sharing your movements may put you and your client at physical risk if the opposing client is violent.

Watch out for unlawful practice of law by answering questions outside your jurisdiction on websites like Avvo and Legal- Guru. I’ve not heard of anyone getting in trouble yet, but the more specific you are in your answer, the more risk you are in. With your social media presence comes the risk of legal questions coming in outside your normal intake process. Redirect specific legal questions to your intake process to avoid issues with prematurely being responsible for confidential information, having a conflicts of interest issue, or having a client believe they’ve formed an attorney-client relationship when that’s not what you intended.

Outside of legal risks, there are reputational challenges being online. If someone gives you a bad review, proceed cautiously before responding online. The best defense may be asking all of your happy clients to post good reviews to push the bad one to the bottom. If the detractor is actually a client, reach out to see if you can work it out. Whatever you do, don’t post confidential information about the client online or engage in a big argument. This will cause you worse headaches than a bad review. Think twice before going on a personalized rant online or starting a “Twitter war.” It will haunt you. Focus on the brand you want to build and let your communication flow from that goal.

Social media is a great opportunity to protect and enhance reputations and to grow businesses and careers. Creating a clear vision for goals on social media along with policies and employee training will go a long way to avoiding the downside of social media while taking advantage of the opportunities.


Shaun Jamison is a professor of law with Concord Law School of Kaplan University and is the former chair of the MSBA practice management and marketing section. Jamison teaches Cyber law, legal research and the future of law practice. He races in triathlons to stay in shape for online teaching and his social media habit.