The District of Columbia Bar has issued two advisory opinions addressing many of the legal and ethical implications of lawyer social media1 use. The first opinion addresses lawyer use of social media for marketing legal services and for personal communication. See District of Columbia Bar, Ethics Op. 370, Social Media I: Marketing and Personal Use (Nov. 2016). The second opinion addresses lawyer use of social media for providing legal services. See District of Columbia Bar, Ethics Op. 371, Social Media II: Use of Social Media in Providing Legal Services (Nov. 2016). Here are the important takeaways from these opinions:
- Rule 1.1 requires a lawyer to “keep abreast of changes in the law and its practice.” For this reason, a lawyer “must be cognizant of the benefits and risks of the use of social media.”
- A lawyer should avoid the formation of inadvertent attorney-client relationships. To this end, “disclaimers are advisable on social media sites, especially if the lawyer is posting legal content or if the lawyer may be engaged in sending or receiving messages from ‘friends,’ . . . when those messages relate, or may relate, to legal issues.”
- A lawyer should use caution in responding to comments or online reviews by clients. More particularly, a lawyer must avoid making false or misleading statements, and refrain disclosing client confidential information. “There is no exception in Rule 1.6 that allows an attorney to disclose client confidences or secrets in response to specific or general allegations regarding an attorney’s conduct contained in an online review . . .”
- A lawyer who uses social media sites that allow for prepublication “review of posts, recommendations or endorsements” must police the accuracy of posted information. To this end, a lawyer should employ “settings that allow review and approval of such information before it is publicized on the lawyer’s social media page.”
- Rule 1.6 requires a lawyer to understand how nonclients can access social media communication and postings. Given the risks of disclosure to nonclients, a lawyer should reach agreement with the lawyer’s client about whether social media “should ever be used” for confidential communications.
- A lawyer must review a client’s social media postings and address whether any are inconsistent with claims or defenses to insure that they are meritorious under Rule 3.1 and that misrepresentations are not made to courts or agencies in violation of Rules 3.3 and 8.4. Before a client engages in “any lawyer-counseled or lawyer-assisted removal or change in content of client social media,” the lawyer should preserve “an accurate copy of such social media.”
- A lawyer should “look at the public social media postings of their opponents, witnesses, and other relevant parties” for relevant information. However, “requesting access to information protected by privacy settings, such as making a ‘friend’ request to a represented person,” is impermissible if the person is represented by counsel or if the lawyer makes a materially false statement to the third person.
- A lawyer who posts information about past matters for marketing purposes must assure that client confidential information is not disclosed.
- Finally, a lawyer must adequately supervise the lawyer’s employees to assure that their use of social media is consistent with the standards of conduct applicable to the lawyer.
- The opinions define the term “social media” to include “any electronic platform through which people may communicate or interact in a public, semi-private, or private way. Through blogs, public and private chat rooms, listservs, other online locations, social networks, and websites such as Facebook, LinkedIn, Instagram, Twitter, Yelp, Angie’s List, Avvo, and Lawyers.com, users of social media can share information, messages, e-mail, instant messages, photographs, video, voice, or videoconferencing content. This definition includes social networks, public and private chat rooms, listservs, and other online locations where attorneys communicate with the public, other attorneys, or clients.” ↵
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