by Neil Hamilton and Sarah Gillaspey
In April 2009, Facebook announced it had more than 200 million active users worldwide. LinkedIn, a professional networking site, had more than 48 million members and Twitter, one of the newest forms of online social media, had 14 millions active users.
The American Bar Association’s legal technology survey found in 2010 that 5 percent of lawyers and 14 percent of law firms have some type of legal blog. Additionally, 56 percent of all lawyers and 17 percent of all law firms are involved in some form of online social networking.
With so many lawyers and firms online, interacting and posting content, the potential for rule violations increases dramatically. Some lawyers and firms are having a hard time understanding the ethical boundaries and limitations of their behavior online.
In an article, “The Legal Implications of Social Networking,” published in Regent University Law Review, Sensei Enterprises president Sharon Nelson, vice president John Simek and paralegal Jason Foltin comment, “It’s a brave new world, and most corporations and law firms are having a heck of a time dealing with it. [Missteps] can involve huge costs, business disruptions, public embarrassment, and [even] legal liability.”
This article seeks to outline some of the potential ethical issues that could arise due to a lawyer’s online social interactions. Possible violations of the Minnesota Rules of Professional Conduct due to a lawyer’s or firm’s behavior online include issues relating to confidentiality, the attorney-client relationship, conflicts of interests and the dissemination of information relating to a lawyer’s or firm’s legal services.
We conclude with some advice and guidance for lawyers and firms about online social networking.
Maintaining confidentiality with clients is a vital part of a lawyer’s professional service. Rule 1.6 states that “a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent.” However, a lawyer’s or a firm’s online presence may be revealing confidential information.
Rutgers University Adjunct Professor Steven Bennett notes in “Ethics of Lawyer Social Networking,” that “lapses in confidentiality can occur on a firm’s Web site and client intake forms, in emails and attachments, on lawyer blogs, bulletin boards, chat rooms, and listservs, and in many other communication forms.”
For example, if an attorney has a profile on LinkedIn and lets the public see his contacts, this may disclose a confidential relationship. An attorney with a blog that is cross-linked with other various websites related to their clients could be unintentionally revealing confidential information.
An attorney-client relationship is formed when a person manifests to a lawyer his or her intent for the lawyer to provide legal services, the lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the person is reasonably relying on the lawyer to provide the services.
An attorney may inadvertently create an attorney-client relationship by commenting on a legal blog, offering advice on Facebook or posting legal advice on someone’s Tweet. If a firm’s website or a lawyer’s blog allows individuals to e-mail or contact lawyers, this interaction may also lead to the formation of an attorney-client relationship.
Whether an attorney client relationship has been formed is a matter of degree. The more conversation or interaction there is between the attorney and potential client, the more likely legal advice is given, and reasonably relied upon, the more likely an attorney client relationship has been formed.
It is important that the lawyer very clearly distinguishes between the interactions that are meant to form attorney client relationships and those that are not intended to do so.
An attorney owes a duty of loyalty to prospective clients, current clients and former clients. A lawyer’s online behavior may violate this duty of loyalty and the Minnesota rules relating to attorney client conflicts.
Rule 1.18 states “a lawyer shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter.” A prospective client is anyone who has a reasonable expectation that the attorney is willing to discuss the possibility of forming an attorney-client relationship. Therefore, if an attorney, due to a post on a person’s blog or an informal conversation in a chat room, leaves someone with the reasonable expectation that the attorney is willing to discuss the possibility of an attorney-client relationship, the attorney may obtain confidential information from the prospective client and would be barred from representing any person who has materially adverse interests to the prospective client.
Furthermore, if an attorney-client relationship is formed, and the new client’s interests are materially adverse to any former client, the attorney may be violating Rule 1.9 protecting former clients.
Attorneys should also give careful attention to potential conflicts arising from differences between an attorney’s online commentary about legal issues and a client’s position on the same issues.
Theoretically, Bennett observes, “if a lawyer were to take a definitive legal position, in a blog or other posting, such position could ‘materially limit’ the lawyer’s ability to represent clients for whom the opposite legal position is dominant.”
Information about legal services
Rule 7.1 states that “a lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.”
Bennett notes that “a lawyer’s Web site, blog, or social networking profile necessarily concerns the lawyer and his or her services, therefore these informational platforms must be true and not misleading.” For example, many firms and lawyers have a reviews section on their Facebook pages and blogs. These client “endorsements” could be considered misleading. Rule 7.1 states that an endorsement is misleading if “presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters.”
Additionally, Bennett emphasizes, ” a law firm cannot imply, by using the word ‘bar’ in its domain name, that it is associated with a bar organization; nor may it use ‘org’ as a top level suffix, which might imply that it is a not-for-profit organization.”
Other potential violations
Many other rules are also implicated when an attorney or a firm uses online social media and networking sites.
Online solicitations could lead to ethical violations. Rule 7.3 states that “an attorney shall not by in-person, live telephone or real-time electronic contact solicit professional employment from a prospective client when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain.” In theory, if an attorney talks with potential clients in a chat room, on Facebook or in a comments section of a blog, the attorney could be cited for solicitation.
Bennett notes, “The closer an electronic medium gets to ‘live, in-person’ communication, the more likely it is that the attorney will be found to have solicited the client if other facts suggest solicitation.”
Rule 5.5 states that “a lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction.” A lawyer must be licensed within the jurisdiction in which she practices. If an attorney answers a legal question online for an individual who lives in Oregon, but the attorney is licensed to practice only in Minnesota, the attorney may have violated Rule 5.5.
Rule 3.5 prohibits an attorney from communicating ex-parte with any juror, potential juror, judge or other official related to an ongoing case. If an attorney is linked to one of these people via LinkedIn or Twitter, or is friends with the person on Facebook, any form of communication between the two parties may constitute ex parte communication.
Avoiding rule violations
Nelson, Simek and Foltin offer the following tips for lawyers and firms interacting online:
-Attorneys need to be careful not to establish attorney-client relationships while online. A good rule of thumb is to not give legal advice online. Attorneys should speak only generally about the law and not apply the law to the other person’s specific facts.
-Confidential information must remain confidential. Firms should forbid and attorneys should avoid the posting, tweeting or blogging of confidential information. When in doubt, attorneys should get permission from their firm or clients before posting any information that may be confidential.
-Attorneys should always use disclaimers whenever they post online. An attorney within a firm should state that his or her opinions do not represent the opinions of the law firm where he or she is employed. Additionally, a disclaimer should also state that any information he or she is posting online is not intended to be legal advice as to avoid forming attorney-client relationships.
-Attorneys must exercise good judgment and be cognizant of the fact that their behavior online has real world implications. Maintaining good manners, honesty and acting like a professional online will only bolster a lawyer’s good reputation offline.
Bennett observes, “Common sense simply requires a user to think through his or her actions and realize that there is no special shield protecting a person’s online actions.”
Bennett concludes that “the best approach for the responsible lawyer is to become educated on new technologies and new methods of practice, to remain alert to potential ethical issues involved in the use of these technologies and methods of practice, and to encourage candid discussion among lawyers, clients, IT specialists, and law firm managers about the best means both to serve client interests and to uphold the high standards of the profession.”
Neil Hamilton is a professor of law and director of the Holloran Center for Ethical Leadership in the Professions at the University of St. Thomas School of Law. Sarah Gillaspey is Hamilton’s research assistant and a third year law student at UST Law.
This article originally appeared in the October 22nd Minnesota Lawyer.