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D.C. Bar Issues Lengthy, Restrictive Opinion On Social Media For Lawyers

Stacked3Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

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D.C. Bar Issues Lengthy, Restrictive Opinion On Social Media For Lawyers

In November, the District of Columbia Bar issued an opinion that was over 7,000 words long. In Opinion 370, the Committee provided a rather in depth analysis on the ethics of lawyers using social media for both marketing and personal use.

This lengthy opinion is unnecessarily restrictive and and is a perfect example of a knee jerk reaction to technology that only serves to stifle lawyers’ use of online tools. Rather than issue a measured response to social media based on analogies to similar offline conduct, the Committee instead treated online interaction and communication by attorneys as suspect and something to be discouraged.

This was evident from the very outset, when the Committee defined social media in an unnecessarily broad manner. The definition included any type of conduct through “any electronic platform”, even private emails, VOIP conversations, and instant messages. And “content” posted online is very broadly defined as “any communications, whether for personal or business purposes, disseminated through websites, social media sites, blogs, chat rooms, listservs, instant messaging, or other internet presences, and any attachments or links related thereto.” (Emphasis added.)

Next, the Committee made the very important, and correct, observation that lawyers have an obligation to understand the social media platforms that they use. The Committee explained that lawyers must “understand the functionality of the social networking site, including its privacy policies…and (l)awyers must understand the manner in which postings on social media sites are made and whether such postings are public or private.”

From there, the opinion went south, with the Committee’s analysis and conclusions resulting in convoluted and complex guidelines seemingly designed with one purpose: to discourage lawyers from using social media altogether. Among the more unusual requirements and obligations the Committee imposed on attorneys were the following:

“Disclaimers are advisable if…the lawyer may be engaged in sending or receiving messages from "friends," whether those friends are other attorneys, family or unknown visitors to the lawyer's social media page, when those messages relate, or may relate, to legal issues.” (Emphasis added).

“Caution should be exercised when stating positions on issues, as those stated positions could be adverse to an interest of a client, thus inadvertently creating a conflict.” (Emphasis added.)

“(G)reat caution should be exercised whenever a social networking site requests permission to access e-mail contacts or to send e-mail to the people in the lawyer's address book or contact list…(T)hese connection services could potentially identify clients or divulge other information that a lawyer might not want an adversary or a member of the judiciary to see or information that the lawyer is obligated to protect from disclosure.”
“We recognize that an attorney's ethical obligations to review and regulate content on social media extends only to those social media sites or webpages for which the attorney maintains control of the content, such as the ability to delete posted content, block users from posting, or block users from viewing. However, notwithstanding the scope of the attorney's affirmative obligations, it is highly advisable for attorneys to be aware of content regarding them on the internet.

”(F)or websites or social media sites where the attorney does not have editorial control over content or the postings of others, we do not believe that the Rules impose an affirmative duty on a lawyer to monitor the content of the sites; however, under certain circumstances, it may be appropriate for the attorney to request that the poster remove the content, to request that the social networking site remove the content, or for the attorney to post a curative response addressing the inaccurate content.”

So, to sum up: 1) disclaimers are required if postings may relate to legal issues, 2) lawyers should avoid any and all postings that are ambiguously described as taking “positions on issues,” 3) lawyers should refrain from allowing a social media site to access their contacts since doing so would somehow (the mechanism is not clear) disclose confidential information, and 4) lawyers are strongly encouraged to be aware of everything that is posted about them or their firm anywhere on the Internet and take steps to remove content that is inaccurate. And, of course, all of these rules apply regardless of whether the content being posted by an attorney is for business or personal reasons.

In other words, “communicate” online (and be aware of everything that everyone on the world might be saying about you) at your own risk - and at the risk of losing your law license - if you’re an attorney in D.C.

Nicole Black is a Rochester, New York attorney and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for the modern law firm. She is also the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at niki@mycase.com.