4 Tips for Staying Ethical on Social Media
Social Media has changed the ways in which many professionals in the justice field are forced to tread lightly, in hopes of being both morally and ethically acceptable to the public. Social Media has quickly become a useful tool to use for various reasons in the field of justice, yet it can be risky. Here are four tips for anyone interested in law when it comes to ethics and social media, according to jdsupra.com.
1. Social media has the potential to reach individuals in multiple jurisdictions - Lawyers must be careful about sharing content in jurisdictions where they are not licensed to practice law. American Bar Association (“ABA”) Model Rule 5.5(b)(2) prohibits lawyers from sharing information that would make the public believe that they are admitted to practice law in a jurisdiction where they are not licensed. Best practices include refraining from offering legal advice over public platforms, including disclaimers stating that a post is not meant to form an attorney-client relationship or provide legal advice, providing transparency about licensure.
2. Advertising legal services over social media is a gray area - When a lawyer knows someone needs legal services and they try to solicit their business for pecuniary gain, ABA Model Rule 7.3 generally prohibits live person-to-person solicitation, which is defined as “in-person, face-to-face, live telephone and other real-time visual or auditory person-to-person communications where the person is subject to a direct personal encounter without time for reflection.” Under the ABA rule, this does not include content that is clearly geared toward the public at large, chat rooms, text messages, or other written communications that people can easily disregard. Defining what type of content that people can easily disregard is where the issue lies. However, if the social media user can ignore, block, or delete the content Rule 7.3 likely will not apply. On the other hand, a situation where the lawyer sends repeated direct messages would surely implicate this rule. Regardless, this is an area where it is very important for lawyers to know their state’s stance on advertising ethics, because many states disagree about what constitutes live person-to-person contact.
3. Ethics come into play with preservation, collection, and disclosure of evidence in discovery - Social media comes up in several contexts during the discovery phase of litigation. Lawyers should implement the following practices: preserve and disclose relevant documents in their original format, use proper collection methods to ensure that the evidence is authentic, and refrain from connecting with opposing parties, witnesses, jurors, and judges involved with their cases.
4. Lawyers have an ethical duty to provide competent representation and keep client data confidential - ABA Model Rule 1.1 requires lawyers to provide competent representation to their clients, which includes keeping informed about the benefits and risks associated with relevant technology. This includes social media usage, features, and any social media developments in the future. ABA Model Rule 1.6 requires lawyers to keep client information confidential unless the client provides informed consent. To keep data confidential, lawyers should conduct social media communication with clients through private messaging, refrain from posting confidential data about a client or case on public platforms, and only conduct communication and case activity over private or secure networks.
