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Social Media Policy Drafting: What are the Ethical Risks & Pitfalls?

Today, social media encompasses a broad sweep of online activity, all of which is trackable and traceable.  These networks include not only the blogs you write and those to which you comment, but also social networks.  Each day brings new online tools and new advances introduce new opportunities to build your virtual footprint.

As a law firm, social media can help drive business initiatives and support professional development efforts. In basic business terms social media can be considered the least expensive form of large scale advertising. However, social media is not exclusively used for business by law firm employees.  When it comes to expressing opinions about anything having to do with the law, firm employees are in a position that requires limitations and have certain limitations. Statements in public forums may inadvertently create an attorney-client relationship, and they may also violate the rules prohibiting law firm advertising.  The wrong communication can be construed as exposing firm or client secrets; invasion of privacy and defamation; trademark violations; and may even lead to wrongful termination claims. Therefore, a law firm must attempt to provide reasonable guidelines for online behavior by members of the firm.

The following are five (5) ethical areas that all law firms should address when drafting internal social media policies. These can also be utilized by law departments when dealing with lawyer and non-lawyer employees.  All of these rules are simply an extension of model rules of professional conduct & state rules of ethics.  The over arching principles should remain the same as new social media sites and technologies emerge.

Advertising (Model Rule of Professional Conduct 7.2)

Marketing and advertising are key functions for any business survival. However, lawyers, especially in law firms, are held to a higher standard when advertising through electronic means. Model Rule of Professional Conduct 7.2[1] states a lawyer or law firm may advertise through written, recorded or electronic means.  This includes all social media sites.

  Quick Reference
 

Do

  • Have any personal or professional social media site as desired.
  • Use appropriate disclaimers as needed.

Do NOT

  • Use the organization's name or email address on a personal site unless using the appropriate disclaimers.
  • Use the organization's assets to update personal sites.
   

Example: A law firm creates a site on Facebook, MySpace, LinkedIn, Twitter, etc. using the firm name.  Is this advertising?

Example: An employee of a law firm uses the firm name or firm email address on their personal Facebook site.  Is this advertising? 

State ethics boards consider the true crux of the advertising issue to be not who creates the site or the intent of the site but rather whether or not the site can be considered to be used for professional use.  If being used for professional use, social media presence and communication can be considered to fall within the advertising rules. 

Below are a few guidelines to include in firm policies to teach your employees (lawyers and non-lawyers) how not to create a professional site unless intended.

  • Employees should not associate the firm name or firm email address with the site unless it is intended for professional use.  This includes stating they are an employee of the law firm. 

  • Do not use firm assets to update personal sites.  This includes any law firm owned laptop or computer, I-Phone or blackberry, firm IP address and email address.  Using the firm email address implies the employee is acting on the firm’s behalf. 

  • Create an advertising disclaimer to help employees specifically state their use is personal or professional. 

This subject is difficult to approach with employees. Many will argue it is the same as verbally telling someone they work at a specific law firm. However, state boards have compared the online activity to a law firm website vs. verbal communication.  The best approach is helping employees understand how not to blur the lines of professional/ personal sites for their own protection.  As an employer, you want employees to continue using social media sites to broaden and help promote the firm brand.  However, you only want them to do it in the most ethical way.

Attorney-Client Relationship (Model Rule of Professional Conduct 1 Series)

The attorney-client relationship is one of the oldest legal ethical standards.  It creates a certain set of duties the lawyer owes the client. The model rules of professional conduct set forth a series of guidelines that help regulate the creation and existence of this important relationship. In the electronic world, especially when utilizing social media, the important issue is whether any electronic communication creates an attorney-client relationship inadvertently. 

  Quick Reference
 

Do

  • Post non-legal comments, blogs, etc. on any personal or professional site.
  • Use appropriate disclaimers as needed.

Do NOT

  • Post legal advice.
  • “Friend” anyone on a professional site unless previously corresponded or known.
  • "Friend" a Judge on a professional site.
   

Example: A lawyer of firm ABC is blogging on a social media site regarding new tax laws. A non-client comments to the blog inquiring about his specific tax situation. The lawyer in turn comments again discussing how the new tax laws apply to the non-client. Has an attorney-client relationship been created?

Law firms presently use disclaimers for emails and firm websites to verify no implied relationship is created.  But how do we instruct employees to this standard when social media sites are interactive by nature? Below are a few key policy guidelines to help employees navigate this difficult area.

  • Employees should never post legal advice.  This does not mean employees cannot comment or post to social media sites. It only relates to publishing or posting that could be construed as legal advice or opinion.  If the subject matter is related to a legal or ethical situation, attorneys and staff may only discuss the legal standards but not apply those standards to any particular fact situation. 

  • Firms should provide a disclaimer for employees to utilize when posting or commenting on professional social networking sites. 

  • When using social networks with firm e-mail and professional identification, employees should not “friend” anyone they do not know and/or with whom they have not previously corresponded. 

  • Some states have even gone so far as to also state that lawyers and judges cannot be "friends" on any professional social media sites. State ethics rules should be consulted prior to drafting any policy.

Client Confidentiality (Model Rule of Professional Conduct 1.6)

Client confidentiality and business privacy are two of the largest concerns of employers when dealing with social media communication. Generally, a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent.  In addition, privacy of the organization, the business processes, the firm brand and the IP of the firm are key for business continuity.

  Quick Reference
 

Do

  • Discuss job generically
  • Avoid uncontrolled forums.
  • Be respectful of other’s and the company’s privacy.
  • Get approval when responding to negative requests.

Do NOT

  • Discuss job specifics.
  • Use the client's name.
  • Disclose specifics related to the business.
  • Disclose confidential information.
  • Upload law firm contacts onto a social media site.

 

   

Example: A lawyer begins discussing a case he is handling on his personal Facebook blog.  Although not referencing the client name, details of the case are discussed. Has the client confidentiality been broken?

Example: A law firm employee tweets about a firm staff meeting discussing salary and new hires.  Has the privacy of business been destroyed?

Law firms must address confidentiality and privacy standards in social media policies.  In addition, consequences for breaking these standards should also be detailed. Below are a few policy considerations to navigate this area. 

  • Employees should never use a client’s name unless written permission has been received.

  • Employees should never disclose confidential or private business information.  Sharing this type of information, even unintentionally, can result in legal action against the employee, the firm, and/or the client.

  • Outside the workplace, rights to privacy and free speech protect online activity conducted on personal social networks used with personal email addresses.  However, what is published on personal online sites should never be attributed to the firm and should not appear to be endorsed by or originated from the firm.

  • Employees should avoid forums where there is little control over what is known to be confidential information.  In the world of social networking, there is often a breach of confidentiality when someone emails an attorney or posts a comment congratulating him/her on representation of a specific client or on a specific case. 

  • Respect the privacy of other employees and of the opinions of others.  Before sharing a comment, post, picture, or video about a client or other employee through any type of social media or network, his/her consent is not only a courtesy, it is a requirement. 

  • Get Marketing/ PR departments involved when responding to certain inaccurate, accusatory or negative comments about the firm or any firm clients.

Expertise (Model Rule of Professional Conduct 7.4)

  Quick Reference
 

Do

  • Allow recommendations.
  • Review and monitor all recommendations carefully.
  • Edit or hide recommendations as needed to remove any verbiage that states you are “better”, “the best”, "expert", "specialized" or "certified".

Do NOT

  • Be false or misleading in online credentials.
  • Use the words “better” or “the best” in credentials or when recommending others.
  • Use the verbiage “expert”, “specialist” or “certified” to describe experience unless certified by an organization that is accredited by the ABA or the state bar. 
   

Many lawyers are considered experts or specialists by their peers in select areas of law.  However, using the expert designation can only be done with appropriate approval. Model Rule of Professional Conduct 7.4 generally states that a lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law.  In addition, a lawyer may promote the engagement in specific areas of practice.  However, a lawyer shall NOT state or imply that a lawyer is an expert or a certified specialist unless the lawyer has been certified by an organization that is accredited by the ABA or the state bar. 

This model rule affects the use of credentials and recommendations on social media sites.  What are the key areas to include in law firm policies?

  • Employees should never be false and misleading in online credentials.  All employees should maintain complete accuracy in all online bios and ensure no embellishment. 

  • Recommendations should be used carefully. Employees should review all recommendations created for them for any embellishment (i.e. use of the words better or best) expertise, certification or specialization listing.   Edit or hide recommendations as needed.

  • Employees should not include the words “expert”, "certified", or “specialized” in their credentials unless authorized to do so.

Expertise and specialization is heavily regulated at the state level.  Some states have gone further in their restricted verbiage. State rules of ethics should be reviewed prior to any policy drafting.

General Communications (Model Rule of Professional Conduct 7 Series)

The final social media ethics concern revolves around general law firm and lawyer communication. In personal and especially professional communication, all communications must be truthful and accurate. 

  Quick Reference
 

Do

  • Credit appropriately
  • Fact check
  • Spell & grammar check
  • Correct errors promptly
  • Be transparent
  • Follow firm policies
  • Obey the law

Do NOT

  • Personally attack, become involved in an online fights or hostile communication.
  • Solicit or use commercial speech.  The content must be informative only. Nothing should propose a commercial transaction
   

Law firms and law departments should consider the following general policy guidelines when drafting social media policies. 

  • Identify all copyrighted or borrowed material with citations and links.  When publishing any material online that includes another’s direct or paraphrased quotes, thoughts, ideas, photos, or videos, always give credit to the original material or author, where applicable. 

  • Ensure material is accurate, truthful, and without factual error prior to posting. 

  • Spell and grammar check everything.

  • Correct any mistakes promptly.

  • When participating social media sites in a professional manner, disclose identity and any firm affiliation.  Never use a false name, alias, or be anonymous.  Many courts have looked poorly on law firms and lawyers using alias names while on social media sites.

  • Follow all firm policies and procedures regarding online communications.  Be respectful and do not make statements that are defamatory; racially, sexually, or otherwise insensitive or offensive; or otherwise improper or likely to conflict with the interests of the firm, its employees, clients, affiliates and others, including competitors. 

  • Follow the site's terms and conditions of use.

  • Do not post any information or conduct any online activity that may violate applicable local, state or federal laws or regulations.

  • Avoid personal attacks, online fights, and hostile communications. 

  • Employees should never solicit or use commercial speech.  Employees should not use a site as a way to directly solicit business for the firm.  While a blog itself is not subject to the limitation on commercial speech, the content of a blog can be.  The content must be informative only, and nothing in the content should propose a commercial transaction or be for the purpose of directly gaining a commercial transaction.

Conclusion

As discussed in this article, there are many ethical considerations when law firms and their employees decided to use social media sites.  Similar to email emerging as the main form of business communication ten (10) years ago, social media is now the communication wave of the future. This new format is how the next generation of leaders presently lives and communicates day to day.  The legal community must embrace the new technology and the opportunity to educate employees.


[1] Model Rules of Professional Conduct are professional standards that serve as models of the regulatory law governing the legal profession.  However, each state board of professional responsibility has additional or supplemental states rules of ethics. State rules should be considered prior to policy drafting.

©2018 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC. All Rights Reserved.

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About this Author

Meredith Williams, Director of Knowledge Management, Baker Donelson Law Firm
Director of Knowledge Management

Meredith L. Williams is Baker Donelson's Director of Knowledge Management.  Although trained as a lawyer, she is not actively engaged in the practice of law.  Instead, she oversees BakerNet, the Firm's industry-leading intranet, and coordinates strategic growth on behalf of the Firm in knowledge management, competitive intelligence and technology.  Ms. Williams is widely recognized as a leading authority in knowledge management issues for the legal field, and is a frequent presenter and author on knowledge management and competitive intelligence. 

Ms. Williams is a member of the...
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