Disciplinary commission warns of social media slip-ups that can violate rules

Lawyers must proactively police and amend their social media pages to ensure third-party comments don’t break ethical rules, a new advisory opinion from the Indiana Supreme Court Disciplinary Commission says.

The commission issued Opinion #1-20, “Third Party Comments or Tags on a Lawyer’s Social Media,” on Monday, advising that attorneys “amend, remove, block or reject additions to their social media pages that violate the Rules (of Professional Conduct) … .”

“As technology evolves, attorneys should continue to review the rules to ensure social media accounts do not violate attorney ethical rules,” the opinion reads.

The advisory opinion poses a single question: “Can a third party’s addition to a lawyer’s social media pages have ethical implications to the lawyer?” The answer: “It depends.”

“An excellent rule of thumb for social media is if the attorney cannot do it in person, he/she cannot do it online,” the commission wrote. “When it comes to third party comments, tags and endorsements, the same rule applies. If the rules prohibit the attorney from saying it, tagging it or endorsing it, then a third party, including the lawyer’s staff, create ethical problems for the attorney by posting such content on the attorney’s social media.”

Pointing to Comment 6 to Professional Conduct Rule 1.1 and to Rule 8.4(a), the commission noted attorneys have a duty to be aware of the ethical rules that come with social media and to be proactive to avoid rule violations. The opinion laid out five “minefields” that attorneys should avoid.

First, the opinion warns of false or misleading claims. The commission pointed to “glowing comments or testimonial from former clients” that lawyers cannot say about themselves, even if they’re true. Specifically, under Rule 7.1, comments 2(3) and (8), attorneys cannot make a “representation, testimonial, or endorsement of a lawyer or other statement that, in light of all the circumstances, is intended or likely to create an unjustified expectation about a lawyer or law firm or a person’s legal rights.”

Second, attorneys should ensure their social media pages do not claim a non-authorized specialty in violation of Rule 7.4.

For example, a LinkedIn endorsement of a non-authorized “specialty,” or a client comment saying a lawyer is a specialist in a non-listed field, could subject the lawyer to discipline. Such comments and endorsements, the commission said, should be clarified or deleted.

Third, attorneys must avoid non-consensual disclosure of client confidences.

“Tempting though it may be for legal staff to brag on social media about a court victory or the signing of a famous new client, a lawyer may not reveal attorney confidences without client consent,” the opinion says, citing Rule 1.6. It also cites Rules 5.1 and 5.3(c)(2), requiring staff supervision.

“If a lawyer does post about an ongoing case within the parameters of Indiana Professional Conduct Rule 3.6,” the opinion continues, “third-party comments to this post must not reference facts or opinions outside of those permitted by Rule 3.6.”

Fourth, attorneys should avoid “adopting” third-party comments on their social media platforms. Such “adoption” can include responding to or “liking” prohibited content, or failing to delete such content.

Further, the commission advised attorneys to adjust their privacy settings to avoid improper “tagging” that could be deemed an “adoption.”

Finally, the commission offered guidance specifically to prosecutors who use social media to engage with the public. While prosecutors have a duty to keep the public informed, the commission wrote, they also have a duty under Rule 3.8 to “refrain from extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused.”

“While a prosecutor can provide valuable information to their constituents via social media post, it must be recognized that these posts will likely have widespread and lasting influence on potential jurors due to the nature of social media,” the opinion says. “… Allowing public comment to these posts adds an additional risk to the reputation and rights of the defendants.

“Given the risks to the integrity of the system, it is best practice to simply disable comments on posts regarding pending criminal matters all together,” the opinion continues. “Alternatively, strict guidelines regarding commenting should be clearly enumerated and regular monitoring and removal of comments that contain information outside that allowed by Rules 3.6 and 3.8 should be employed.”

Failure to monitor and remove inappropriate comments, the commission warned, could be perceived as adoption of those comments.

“The above minefields do not form an exhaustive list,” the opinion concludes. “… Lawyers must be aware of the risks of technology and police social media for false or misleading content. Attorneys should consider use of settings disabling third party posting or setting sites to require approval.”

The Disciplinary Commission in 2018 began offering advisory ethical opinions, which are nonbinding.