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Social media: Be competent or face the consequence

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Social media is a part of many lawyers’ daily lives. It’s how we get breaking news, share what’s important to us, express our opinions, and maintain our networks of friends and professional contacts. Social media is an extension of who we are.

For law students and attorneys, the line dividing personal social media use and professional implications can be challenging to navigate in part because social networking technologies and platforms are constantly changing. We might expect rules and norms of professional conduct to apply to our online activity in the same way that they do to our in-person conversations. In many ways they do.

However, social media makes lawyers more vulnerable to ethical violations in some concrete ways. Honing your social media competency is critical to avoiding professional quagmires and ethical snares in at least two realms: fiduciary duty to clients and conflicts of interest.

Fiduciary duty to clients

Lawyers have a fiduciary duty to act in the best interest of their clients. That duty extends to our online identities and actions. Lack of competency or emotional intelligence in this arena can be damaging to a lawyer’s professional image and the public’s confidence in the profession.

As a starting place, social media competency requires an understanding of the various ways that an attorney might be “present” on a social media platform. For example, actions with consequences on Facebook include what you post as an individual user, comments made on other posts, and posts that you are tagged in by family or friends. In extreme circumstances such as a national tragedy, silence itself can be a form of action.

Next, lawyers must anticipate how viewers of their social media actions will perceive them. There’s no reason to assume that people who see your posts will understand your actual intent. Your friends who are not lawyers may enjoy venting about their jobs online, but a lawyer must never go down this path. Something that may seem like an obvious joke to you might come across as serious and offensive to a current, former, or potential client.

Social media posts are tricky because they are broadcast so widely. A single Facebook post announces your opinions not only to your current friends, but also your high school friends, your work friends, your family friends, and even your met-them-once “friends.” This wide audience makes it very hard to guarantee that nothing you share could in any way be construed as a violation of your fiduciary duties to a client. There are just so many more people receiving your online communications compared to an in-person conversation. Nevertheless, loyalty is a key component to the attorney-client relationship. Loyalty requires being conscientious about never posting anything that could be seen as against the interests of a client.

Although attorneys tend to see the world through the lens of various one on one interactions between clients and an adversary, it’s important to remember the bigger picture and develop or mobilize emotional intelligence in social media use. Save cynicism and jokes for office meetings or coffee dates, and invest in an image of trustworthiness and utmost professional discretion.

Conflicts of interest

Model Rule 1.7 requires a lawyer to avoid engaging in conduct that creates a conflict with the interest of a current client. This type of conflict includes representing clients who are directly adverse to each other, and situations where there is a significant risk that the representation of a client will be materially limited by the personal interest of the lawyer. Social media posts may foster concurrent conflicts.

One risk is that a lawyer develops a relationship with the wrong person as a result of social media actions. One of the advantages of social media is that it allows us to connect with people that we don’t know all that well and then get to know them online. A lawyer may unintentionally develop a relationship with a someone who they don’t really know, but who has a directly adverse conflict with a client.

A lawyer may even inadvertently create an attorney-client relationship with someone online without doing a conflicts check. Accidental attorney-client relationships occur it’s not clear that a lawyer doesn’t consent to represent a person, the person reasonably relies on the expected lawyer’s services and the lawyer knows about the person’s reliance. Imagine an online conversation with a distant friend or relative that results in a lawyer giving very casual legal advice. The person hearing the advice may make more of it than intended.

Positional conflicts can arise when a lawyer takes one position online and then takes an inconstant position on behalf of a client. Going back to Model Rule 1.7, this is a problem because the client may reasonably believe that the lawyer’s representation will be materially limited by the lawyer’s personal interests.  The DC Bar drew attention to this issue in Ethics Opinion 370. The opinion recommends that “[c]aution 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.”

 Law students and lawyers must be fastidious about using social media in a way that is consistent with our standards of professionalism. Doing so is important not just for individual lawyers, but also because it relates to the public’s confidence in the profession. Social media competence should be a minimum goal for all lawyers. It requires that we stay vigilant about emerging pitfalls and the complex boundaries between our personal and professional online actions, especially as platforms develop, update, or gain increased prominence in popular culture.

Meredith Parnell and Morgan Nelson Meredith Parnell received her J.D. from Harvard Law School in 2018. She recently concluded her role as law student representative to the ABA Board of Governors. Morgan Nelson received her J.D. from the University of South Dakota in 2018. She served as the 8th Circuit Governor on the Law Student Division Board of Governors.