Ethical Implications of Riding the Social Media Wave

For attorneys previously reluctant to dive into the world of online social media, the benefits of utilizing social networking as part of an effective marketing strategy are now undeniable. Not surprisingly, attorney participation in social networking is rising--up from 15% percent in 2008 to 56% in 2010 according to a Legal Technology Survey Report--and certainly still growing.

A quick glance at numbers provides compelling evidence as to why-- Facebook has nearly as many users as the population of Russia, Brazil, Indonesia and the U.S. combined. YouTube, with a reported 800 million plus users per month, isn't far behind. Twitter has at least 100 million registered users, which, if also put in census perspective, equals nearly a third of the U.S. population--even the U.S. Supreme Court tweets its latest opinions.

The Balancing Act

Navigating the social media world can be fraught with legal dangers and complex ethical issues unique to the legal profession, and often the rules regulating ethical compliance for attorneys are ambiguous at best. It's no small wonder traditionally conservative attorneys have been hesitant to wade into the often murky waters of social media--career damaging horror stories abound and social media participation can present an ethical mine field which can be harmful to an attorney's or firm's reputation. Figuring out how to wisely capitalize on marketing, information gathering, and other benefits--all while staying within the bounds of ethical rules--can be a balancing act.

The Rise of the Social Media Expert

Enter the online social media expert--law firms are now proactively hiring full time staff specialists to manage their social media presence and sites, according to a recent Washington Post article. Citing an ALM Legal Intelligence report released in February, 20 percent of law firms currently employ a full time online social media specialist, while approximately 40 percent report that participating in social media has garnered new legal work for the firm.

Law firms seem to be catching on--and following in the footsteps of Fortune 100 companies, who joined in and took seriously the social media game a few years earlier. That's good news for the consulting firms and experts who specialize in this formerly niche area--as well as for firms that seek to capitalize on the benefits of utilizing social media while minimizing the associated risks.

Some firms are even carving out practice groups in response to the social media craze, a good example--and resource--can be found at Socially Aware, a blog devoted to the law and business of social media and published by Morrison and Foerster.

ABA Model Rules to Offer Some Guidance

When it comes to providing ethical networking guidance for attorneys, some traditional sources, such as the ABA Model Rules, have been slow to offer direction but are worth watching.

The ABA's Commission on Ethics 20/20 released its revised draft resolutions and report on February 21. Almost 3 years in the making, one of the Commission's goals was to review the Model Rules in the context of advances in technology. The draft, however, is somewhat short on guidance. In a sort of sweep it under the carpet fashion, the Commission's report noted that a future "White Paper" would be desirable to explain constitutional issues at stake, and to address concerns that Rule 7.1 "could apply to lawyers' communications about their services even when those communications appear on lawyers' personal networking sites and are accessible only to close friends or family."

The Commission did offer specific clarification in some areas. For example, the Commission proposed revisions that would place tighter limitations on information an attorney can reveal, (even including information from a non-client); now require a "reasonable expectation" before communications can result in the formation of an attorney-client relationship; clarify how attorneys can use electronic lead generation services; and spell out when an attorney's communication does not constitute solicitation - for example if directed at the general public or if "automatically generated in response to Internet searches."

The Commission is accepting comments to its draft proposals until April 2, and will submit finalized drafts to the ABA House of Delegates at the annual ABA meeting in August.

What Does It Mean for Attorneys?

In sum, attorneys are increasingly turning to the power of social networking to boost their practices and increase business--a trend that is certain to continue to grow. As more attorneys tap into social media, questions emerge regarding what is acceptable with respect to online communications in order to capitalize on the marketing potential of the increasing number of networking sites.

Attorneys should be sure their online communications adhere to ethical rules--and should pay special attention to some of the issues most recently addressed by the ABA's Commission--such as accidental disclosures, information security, protecting client information, inadvertently creating a client relationship, and advertising, to name a few. Keep in mind that the ethical rules and considerations apply not just to attorneys, but to their support staff as well.

Quantity doesn't equal quality--in addition to ethical considerations, more firms jumping into social media also means the playing field has become more competitive. As always, stay abreast of relevant changes in the law, and don't toss out your good sense.

Lastly, it may be well worth a firm's return on investment to consider hiring a social media specialist. Specialists can help tackle many thorny and increasingly complex issues--such as social networking, web site development, search engine optimization, privacy issues, potential breaches of information and related security issues.