Experts: Used wrongly, social media can sting

By Douglas Levy
The Daily Record Newswire
Remember that blog post you wrote last week about certain aspects of your recent criminal trial? Your intentions might have been to use it to educate the public on the law, but it could get you in trouble — even if your client wasn’t named in it.
Or that witty tweet about how opposing counsel isn’t all he or she is cracked up to be? You shouldn’t expect it to win you new clients.

And don’t even think about putting any of your personal opinions about politics or religion on your law practice’s Facebook page.

As much as it can be a means of marketing and communication with the public, social media also is a minefield for attorneys. One wrong move can mean anything from a self-sullying reputation to possibly an ethics violation.

While neither the American Bar Association’s nor Michigan’s rules of professional conduct specifically address social media, many of the rules concerning advertising/solicitation, client confidentiality and pretrial publicity are relevant to social media.

“The MRPC are written very broadly in allowing attorneys to use any form of public communication,” said Victoria V. Vuletich, who teaches ethics at Western Michigan University
Thomas M. Cooley Law School. “The rules prohibit [an] attorney from making any statement that is false, misleading or confusing. So it is primarily the content that is regulated, not the platform.”

Changing the rules?

Renee Newman Knake of the Michigan State University College of Law said that the ABA’s Model Rule 1.1 of Professional Conduct recently added a provision requiring attorneys to be competent about the benefits and associated with “relevant technology” — which could be interpreted to include social media.

Vuletich added, “In states that have adopted this standard (Michigan has not), an attorney could potentially be sued for malpractice by a client who was harmed by an attorney’s negligent misuse of social media.”

Michigan Supreme Court spokesman John Nevin said that no proposals to amend the Rules of Professional Conduct to include social media are under the court’s consideration.
Peter J. Henning, an ethics professor at Wayne State University Law School, said that he doesn’t expect that to change any time soon.

“Law is mostly a reactive profession,” he said. “It would be good to have some recognition in the rules about what is and isn’t appropriate just to give guidance. The profession is doing all right without that guidance, but you need some sort of catalyst for it, either a case blowing up or something that gives an impetus for changing the rules. And the rules are always behind the times.”

But even without a large body of case law concerning attorney reprimand for social media impropriety, experts say caution and discretion are essential.

“Lawyers and judges need to keep in mind that professional conduct rules still apply, even in what sometimes feels like a less formal context when sending a tweet or posting on
Facebook,” said Knake, co-director of the Kelley Institute of Ethics and the Legal Profession at MSU.

Danon Garland, director of professional standards for the State Bar of Michigan Professional Ethics Committee, pointed to the SBM Ethics Opinion RI-276, which states: “[A]ll forms of communications about lawyer services are governed by ethics rules, regardless of whether they are in person, on paper, billboard, telephone, fax, computer or otherwise.”

Vuletich said the most common mistakes lawyers — and judges — make when utilizing social media are violating client confidentiality and making ex parte contact.
Among the examples she cites to her classes:

• A long time public defender in Chicago lost her job, and was professionally disciplined, for disclosing facts and circumstances regarding her juvenile client’s case in a blog post she wrote. Though she did not disclose the name of the client, it was determined that the facts she disclosed were sufficiently unique that identification of the client was possible.

• Several judges have been disciplined for engaging in ex parte online contact with lawyers and litigants, with one judge going so far as to include in his ruling a quote from a poem a litigant posted online (the poem was never entered into evidence).

• A lawyer sought an adjournment of a matter on the basis of a relative’s death. The attorney then posted on Facebook pictures of parties she was attending and motorcycle outings she was taking. But she forgot that the judge, who granted the adjournment, was one of her Facebook friends. The judge was not amused and reported the lawyer to her employer.

“Lawyers and judges who would never dream of engaging in ex parte contact in the courthouse suddenly forget the rules when they are in the intimate environment of their computer screen,” Vuletich said.

But that “intimate environment” can get very public very fast, Henning said.

He said his students are used to communicating with each other — and the world — much more freely via social media, which can end up hurting them in the long run.

“As a lawyer you cannot communicate what your thoughts are,” Henning said. “You might think you have First Amendment rights, and I guess you do, but it can cost you professionally.”

Knake said anytime a lawyer speaks publicly on political, religious or hot-button matters, the risk is there that clients might be concerned and the public at large could get the
wrong perception.

“This is true whether the lawyer writes an op-ed, is quoted in the newspaper, or posts on social media,” she said. “The difference with social media is timing. One might not be as measured or careful in writing a quick ‘tweet’ or post as one would in authoring an op-ed — and the potentially viral nature of social media [means] a brief statement can be disseminated quickly and out of context.”

Vuletich said she strongly advises avoiding “gripes and complaints” posts.

“Clients turn to lawyers to help them solve their problems,” she said. “If you are always griping about your opposing counsel, the judge, the court clerks, etc., you come across as someone who is not good at solving problems and who does not play well in the sandbox with others.”

She added, “I do not know many attorneys who can afford to alienate significant numbers of potential clients.”

Kyle Michael Sullivan, a Grand Rapids solo attorney, said that’s why he’s being cautious about how he presents himself online.

The biggest potential pitfall he sees is a lack of partition between an attorney’s personal and professional postings on a Facebook page.

“That kind of blurs the line … and they’re not always posting the most professional things,” said Sullivan, a general practitioner who’s working on a practice focusing on technology-efficiency consulting for solos and small firms. “‘Here are pictures of my family or this funny meme I found.’ Someone who’s considering you as a client or is on the other side of your case can find it very unprofessional or disrespectful.”

Sullivan said he sees a lot less of this on LinkedIn, the platform for which he so far has kept his professional social media presence. He added that he’s testing out the waters to see what other sites have been working for other solos.

And having an online presence is a virtual requirement for marketing a law practice, Vuletich said.

“Studies show that the majority of potential clients research an attorney online before contacting him or her, even when they have been referred to the attorney by a trusted source,” she said.

Henning said 20 years ago, a law firm biography and some advertising were the only things the public saw from a law firm’s side.

“There wasn’t much public perception of individual lawyers. But now that’s changed,” he said. “So much of the practice of law involves the lawyer’s reputation. You as a prospective lawyer need to start thinking about your reputation now. What do you want out there? Do you really want that picture from the St. Patrick’s Day party [posted]?”

Sullivan said he is always on guard for reputation control, in that he regularly monitors his personal Facebook account to make sure anyone he’s friended hasn’t posted photos of him that could present him in a bad light.

“I’m a professional and this is a major part of my life,” he said. “It’s my source of income and what I’ve spent way too many years going to school for. It’d be a shame to lose it all by making a stupid decision.”