The Risk Manager, Winter 2017

One of the benefits of the nearly universal use by the states of the ABA Rules of Professional Conduct is that other state ethics opinions now offer useful information for Kentucky lawyers. Two recent examples of this are D.C. Bar Ethics Opinion 370, Social Media I: Marketing and Personal Use [11/16]; and Ethics Opinion 371, Social Media II: Use of Social Media in Providing Legal Services [11/16]]. This article highlights some of the key information in these opinions. Both include comprehensive treatment of the ethics and malpractice risks lawyers face when using the social media and are based on rules very similar to the Kentucky Rules of Professional Conduct.

D.C. Bar Ethics Opinion 370, Social Media I: Marketing and Personal Use

For purposes of this opinion the committee identified the following personal use activities that lawyers may engage in on social media and covers each in detail:

  1. Connecting and communicating with clients, former clients or other lawyers on social networking sites;
  2. Writing about an attorney’s own cases on social media sites, blogs or other internet-publishing based websites;
  3. Commenting on or responding to online reviews or comments;
  4. Self-identification by attorneys of their own “specialties,” “skills” and “expertise” on social media sites;
  5. Reviewing third-party endorsements received by attorneys on their personal or law firm pages; and,
  6. Making endorsements of other attorneys on social networking sites.

One of the more interesting aspects of the opinion is that the committee posited for the first time the risk of a positional conflict of interest when a lawyer takes a position on social media that could be adverse to the interest of a client. Traditionally, positional conflicts of interest apply only to positions taken in different tribunals — not on a lawyer blog. Nonetheless, good risk management is to avoid the problem by not taking a contrary opinion to a client’s interest on a blog or other social media.

The committee noted another potential conflict of interest risk by observing that “online communications and interactions with people who are unknown to the lawyer may unintentionally cause the development of relationships with persons or parties who may have interests that are adverse to those of existing clients.”

Opinion 370 surfaced for the first time the serious risk of LinkedIn’s “Imported Contact” feature for violating client confidentiality, creating conflicts of interest, and other problems:

Most social networking sites require an e-mail address from the user as part of the registration process. Then, once the social networking site is accessed by a lawyer, the site may access the entire address book [or contacts list] of the user. Aside from any data collection purposes, this access allows the social media site to suggest potential connections with people the lawyer may know who are already members of the social network, to send requests or other invitations to have these contacts connect with the lawyer on that social network, or to invite non-members of the social network to join it and connect with the lawyer. 

However, in many instances, the people contained in a lawyer’s address book or contact list are a blend of personal and professional contacts. Contact lists frequently include clients, opposing counsel, judges and others whom it may be impermissible, inappropriate or potentially embarrassing to have as a connection on a social networking site. The connection services provided by many social networks can be a good marketing and networking tool, but for attorneys, these 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. Accordingly, great 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 and care should be taken to avoid inadvertently agreeing to allow a third-party service access to a lawyer’s address book or contacts.

The key risk management principle is that lawyers absolutely must know and understand the privacy rules of any social media site and its data collection practices.

Editor’s note: Kentucky has a much stricter rule on advertising specialization than D.C.[See SCR 3.130[7.40]. Accordingly, disregard paragraph II D of Opinion 370 on specialization.

D.C. Bar Ethics Opinion 371, Social Media II: Use of Social Media in Providing Legal Services

Relying on over 19 other jurisdiction’s analyses of social media issues, this opinion provides a comprehensive review of the major issues. Space limitations preclude discussing each, however, the following is an overview of what the opinion covers. We urge you to read the opinion that is readily available using Google.

  • What lawyers must understand about social media
  • Letters of engagement and social media
  • Lawyer review of client social media
  • Advising about adversary review of client social media
  • Document preservation
  • Substantive regulatory risks
  • Investigation of social media of adverse parties, counsel, and experts
  • Contacting represented persons and unrepresented persons
  • Pretexting
  • Inadvertent disclosure
  • Social media of jurors, fact witnesses and other sources of facts
  • Social media of judges, arbitrators, and regulators
  • Supervision of lawyers and staff use of social media