Nicole Black, The Daily Record Newswire
My fellow lawyers: Are you not listening? Haven’t I told you that social media is a phenomenon, not a fad, and that you need to learn as much about it as you can? Haven’t I informed you of the ethics rules and offered you advice on best practices for interacting on social media? Haven’t I told you that the online medium doesn’t change the message? Haven’t I explained that online interaction is simply an extension of offline interaction? Haven’t I cautioned you to think before you act, since the Internet is forever?
You know I have! So why do you keep doing things on social media that are simply inexcusable and that would never be considered ethically permissible if done offline?
Like the Cuyahoga County prosecutor I wrote about last June who assumed a fictitious persona and then chatted with murder trial witnesses on Facebook and encouraged them to change their testimony. Or the law firm I wrote about last December whose advertising agency posted ads for the firm on YouTube that had racist overtones.
Yet despite my cautionary tales, the social media fiascos continue, as evidenced by the recent actions of Texas attorney James Allen “Jim” Hanson. It was recently reported that Mr. Hansen now faces felony intimidation charges based on his decision to post the following message on Facebook, aimed at his divorce client’s ex-husband: “You pissed off the wrong attorney. You want to beat up women and then play games with the legal system … well then you will get exactly what you deserve. After I get [my client] out of jail I’m going to gather all the relevant evidence and them [sic] I’m going to anal rape you so hard your teeth come loose. I tried working with you with respect. Now I’m going to treat you like the pond scum you are. Watch your ass you little [expletive deleted]. I’ve got you in my sights now.”
It’s unclear to me what thought process lead Mr. Hansen to believe that it would be either: 1) wise or 2) ethical to make such a statement to an opposing party, whether publicly or privately. But to post it online, where it could forever be captured, is simply incomprehensible behavior.
That lawyers like Mr. Hansen continue to exercise what appear to be lapses in judgment when it comes to social media is just one more indication that further guidance is warranted. The good news is that lawyers who still fail to understand how to interact ethically and responsibly on social media are in luck: the New York State Bar Association’s Commercial and Federal Litigation Section recently released a very useful set of guidelines on the ethics of lawyers using social media.
The section’s “Social Media Ethics Guidelines” (online: http://tinyurl.com/ComFedGuide) is an 18-page document that was released in March and provides a comprehensive overview of the ethical issues that are triggered when lawyers interact online in their professional capacities. The guidelines will be useful even if you’re not a New York lawyer since the focus includes an analysis of New York ethical issues along with coverage of opinions handed down in other jurisdictions.
The guidelines address the ethical rules relating to: 1) attorney advertising, 2) furnishing of legal advice through social media, 3) review and use of evidence from social media, 4) ethically communicating with clients and 5) researching social media profiles or posts of prospective and sitting jurors and reporting juror misconduct.
So for lawyers who are still unsure of their obligations when interacting online, the Section’s Guidelines are a great place to start. So please — help me help you avoid making the news for all the wrong reasons! Download a copy and get started today. Learn how to better represent your clients and avoid unfavorable press by using social media wisely, responsibly, and ethically.
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Nicole Black is a director at MyCase.com, a cloud-based law practice management platform. She is also of counsel to Fiandach & Fiandach in Rochester and is a GigaOM Pro analyst. She is the author of the ABA book “Cloud Computing for Lawyers,” coauthors the ABA book “Social Media for Lawyers: the Next Frontier,” and co-authors “Criminal Law in New York,” a West-Thomson treatise. She speaks regularly at conferences regarding the intersection of law and technology. She publishes three legal blogs and can be reached at niki@mycase.com.
