Nobody worries about social media like lawyers do. It’s still the Wild West of the Internet, in which unfiltered words and images appear 24 hours a day and create millions of potential legal pitfalls. It’s no wonder that many lawyers prefer the controlled environments of motion practice and courtrooms to this online obstacle course. In order to appease the fears of its 28,000 members, the Pennsylvania Bar Association recently issued guidance “which addresses social media profiles and websites used by lawyers for business purposes.” Having reviewed the opinion, I’ll share the following 4 Social Media Issues That Should Scare Lawyers.
1. Will my client violates his confidentiality agreement via social media?
Earlier this year, a man received an $80,000 confidential settlement in an age discrimination case filed against his former employer. Excited about the result, his daughter posted the following message on her Facebook page: “Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.” The post violated the confidentiality agreement and cost the Plaintiff $80,000 that his lawyer had obtained for him.
2. Will sharing my experience reveal confidential information about my client?
I regularly address this question in my role as a legal marketer. Obviously, an attorney should consider client information to be confidential during and following the conclusion of a matter. In 2010, the Supreme Court of Illinois suspended an attorney for 60 days for identifying clients, often by name, on her blog. However, whether representing Wall Street or Main Street, an attorney can certainly describe his experience without identifying specific clients or confidential information. By way of example, a former colleague ‘represented a life insurance company against claims as to the suitability of a variable annuity product and as to the company's compliance with insurance and securities laws.’ A Philadelphia lawyer recently ‘represented a commercial landlord in a State Court ejectment action to remove a tenant from the property.’ In both cases, attorneys described specific experience without revealing confidential information.
3. Can attorneys contact parties, whether represented or not, via social media?
If you wouldn’t telephone or write a letter to a represented party, don’t contact her via social media, per Rule 4.3 of the Pennsylvania Rules of Professional Conduct. While one should not use social media to contact a represented party, an attorney “may access the public portions of other parties’ social media accounts for use in litigation.” However, an attorney “should not request additional access to social networking website nor have someone else do so" (emphasis added). Note that you cannot have your paralegal “friend” or “follow” another party in a litigation for the purpose of obtaining additional information about her.
4. Can my client or I withhold information that my client shared via social media?
You can, if you’re fixing to face a motion for sanctions. Adopting guidance drafted by the Philadelphia Bar Association, a lawyer “may advise a client to change the privacy settings on the client’s social media page but may not instruct a client to destroy any relevant content on the page” (emphasis added). Therefore, while your client can turn up the privacy settings on a social media page (protected tweets or a non-public page), your client cannot delete any content on said page. Furthermore, lawyers must include any relevant social media content when responding to discovery requests.
On Wednesday, I’ll discuss the 10 points that the Pennsylvania Bar Association opinion makes and, next week, will share my views on how the opinion is an opportunity for you to make your network more aware of your legal practice in order to increase referrals.