Social media create potential for ethical violations

As social media continue to evolve, legal professionals should become increasingly cautious when they log in to various sites.

That’s according to Judy Woods, a partner with Benesch Friedlander Coplan & Aronoff LLP, Indianapolis, who gave a presentation Thursday about legal social media ethics during the Indiana State Bar Association's 2016 annual meeting. Woods and Howard Trivers, library manager at Bingham Greenebaum Doll LLP, focused their presentation on ways legal professionals can get the most research utility out of technology and social media while also avoiding ethical pitfalls.

Bar associations, disciplinary boards and courts across the country are constantly paying attention to the ethics of social media, Woods said, so attorneys and judges should, too. Although there are no specific rules that dictate how legal professionals should use social media, Woods said there are some guidelines that attorneys and judges should consider when logging on to their preferred social media site.

Woods pointed to the American Bar Association’s formal opinion 462, which deals with judges’ use of social media networking. In that opinion, the ABA urges judges to “maintain the dignity of judicial office at all times, and avoid both impropriety and the appearance of impropriety in their professional and personal lives.” In other words, Woods said the ABA is urging judges to draw a line between their personal and professional online lives.

While that suggestion is aimed at judges, Woods said attorneys – especially those who frequently use social media – should also take the advice to heart.

A recent Thomson Reuters study found that roughly 54 percent of consumers are more likely to hire an attorney whose work is actively chronicled on social media. However, Woods urged attorneys to use caution when discussing their work online, saying doing so can lead to ethical problems.

Social media posts can, at times, constitute legal advertising, which can get attorneys in ethical trouble, Woods said. For example, if a client posts an endorsement of or testimonial about an attorney, that post could lead the attorney into an ethical investigation for unlawful advertising, even if the post went up without the attorney’s knowledge, she said.

Most rules regarding appropriate attorney social media conduct are state-specific, Woods said, but she also pointed out that virtually every states has jurisdiction to punish attorneys for ethical violations, even in states where an attorney is not admitted to practice. To avoid running into an out-of-state disciplinary issue, Woods recommended that attorneys list all states where they are admitted on every social media site they maintain so that they never give the impression that they are trying to solicit work in a state where they are not admitted.

The Indianapolis attorney also cautioned her audience to ensure they know who they’re speaking with if they engage in online conversations. People can easily misrepresent themselves online, so attorneys who are unaware of whom they are speaking with online could find themselves in unintended attorney-client relationships and, thus, subject to additional ethical restrictions.

Even law firm employees who are not licensed attorneys can find themselves in violation of ethical standards based on their social media use, Woods said.

She pointed to the case of U.S. v. Bowen, 2013 WL 6531577 (E.D. La. Dec. 12, 2013), in which six different fraud cases in the aftermath of Hurricane Katrina were declared mistrials after an employee with the U.S. Attorney’s Office frequently blogged about the trials.

The employee’s blogs, Facebook posts and tweets leaked information about the cases, including plea bargains, Woods said. The online posts also included rants against Louisiana police officers, accusing them of poor investigative work in the cases.

Conversely, citizen social media can also have an adverse effect on a trial through the widespread sharing of trial information, Woods said.

In the case of Jackson v. Deen, 959 F. Supp. 2d 1346 (2013), the Georgia case brought against Food Network star Paula Deen, the defendant’s lawyers attempted to disqualify the plaintiff’s counsel by digging up details about the attorney’s past and attaching those details to a motion to disqualify.

The plaintiff’s counsel moved for the record of the motion to disqualify to be sealed, but the court refused, saying the details in the motion had already been revealed through social media posts by the public.

Those cases, and several others, should each point attorneys, judges and other legal professionals to the same conclusion, Woods said – that their social media use, both professional and personal, should be carefully guarded to prevent unforeseen ethical violations.