Friending Your Enemies, Tweeting Your Trials: Using Social Media Ethically

http://ow.ly/6MqUp

An article by Helen W. Gunnarsson published by the Illinois Bar Journal on www.isba.org

This article discusses the ethical use of social media by attorneys and points out some possible troubling effects of social media use.

The author states, "In 2009, a Texas lawyer asked a judge for a continuance because, she represented to the court, her father had died. The judge, a savvy social networker herself, then discovered that the lawyer had posted photos of herself for that same period showing that, far from sitting shiva, she was out and about, drinking and partying."

In another example the author states, "Here in Illinois, a Winnebago County assistant public defender posted personally identifiable information about her clients on her weblog, including some confidential information about their cases, as well as disparaging remarks about two judges. As a result, she not only lost her job but was suspended from practice for three months. In the Matter of Peshek,Ill Atty Reg and Disc Comm, 09 CH 89 (Aug. 25, 2009), Ill S Ct MR 23794 (May 18, 2010)."

The article goes on to state, "Chief Legal Counsel James Grogan of the Illinois Attorney Registration and Disciplinary Commission identified several particular areas of ethical concern that disciplinary agencies across the country are currently seeing through formal and informal inquiries. They include revealing client confidences, a violation of RPC 1.6(a); lawyer communications, including advertising, governed by RPC 7.1 through 7.6; and approaching an unrepresented individual online by, for example, friending the person on Facebook, without disclosing that the lawyer is representing a party seeking information about or from the individual, which may involve RPC 4.1 through 4.4."

As the author states, "In the words of Chicago lawyer Erin E. Wright of DLA Piper, "Lawyers can navigate social media the right way, without violating ethical rules."  The article further quotes Ms. Wright, ""When in doubt, leave it out," Wright says. As a "golden rule" of ethical social media usage, she recommends that lawyers refrain from posting information about client matters, even if another source has already made the information public.

In Wright's view, providing well-written, in-depth analysis of legal concepts is the best way to be interesting and fresh. "Write globally about a legal issue, leaving out specific facts about your clients," she suggests. "Provide information that might be helpful to others. Link to interesting articles, including your own.""

Finally, the author further states, "...neither RPC 1.6 nor 3.6 prohibit lawyers from commenting publicly on cases in which they're not involved."

The article also warns against "pretexting".  As the author states, "The Federal Trade Commission (which does not regulate lawyers) has defined "pretexting" as "the practice of getting your personal information under false pretenses." More specifically, for lawyer ethical watchdogs and mavens, pretexting occurs when a lawyer friends someone on Facebook, or causes an employee or associate to friend the person, with the aim of gaining access to information about that person that the person has made available only to approved "friends.""

P.S.  The article also discusses prohibitions against advertising, and how this ties into social media use as well.