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Lawyers Beware: How to Stay Squeaky Clean on Social

As a lawyer, all of your digital transmissions are subject to the Rules of Professional Conduct (for the purposes of this post, see CA Rule 1-400 Advertising and Solicitation). The New York State Bar Association has gone so far as to release its own handbook for attorney social media behavior, and other states are not far behind. Moreover, your firm may have its own social media and public relations guidelines further restricting your online activities.

As all social media transmissions may constitute attorney advertising, lawyers need to be extremely careful in handling content. Be social media savvy by incorporating these lessons into protecting your professional certification.

Lesson One: Don’t be trigger happy.

The quick nature of social, as well as the easy and informal incorporation of Facebook and Twitter into our lives, makes it easy to forget that you still represent your profession after hours. Exhibit A: The Big Law partner who flamed out on Twitter about a SCOTUS decision. Within 24 hours, he became a digital ghost and his firm issued a statement apologizing for his behavior, assuring the world they were dealing with the situation internally. He was never heard from again. Unlike your friend Joe Schmo, your analysis of a political or cultural event can come at the expense of your career.

Use a social media assistant like Hootsuite to schedule tweets of relevant news articles and informational posts every week. You’ll need to think through your content ahead of time and you won’t be tempted to respond to current events in the heat of the moment. Plus, taking care of scheduling all your posts once a week will keep you fairly current in the news cycle.

Lesson Two: The first rule of Fight Club is not to talk about Fight Club.

You may feel inclined to boast about your recent win or settlement to your family and friends, but does that violate an NDA or implicit confidentiality? Your digital transmissions may be viewed by colleagues, witnesses, clients or opponents due to the overwhelmingly public nature of social media networks. Even if a witness accidentally comes across your accounts, you could be subject to discipline.

If you are intent on using social media for your professional brand, set up separate personal and work accounts. Set the privacy settings on your personal account to the max and download the data on your work accounts regularly. Let people “friend” or “connect” with you on social, so as to avoid a prohibited solicitation charge. Don’t “friend” judges, witnesses, jurors, or opposing parties. Ever.

This is a very real possibility for "friending" a witness.

Moreover, what about the security of your digital transmissions? Don’t talk about ongoing work on social media, even in private messaging. Facebook, Twitter, etc. don’t qualify as secure sites capable of protecting digital transmissions. If you receive a client request or communication through a social media site, move the discussion to your secure e-mail server or give them a phone call.

Lesson Three: C.Y.A.

The ethical and professional standards require you to be hyper-vigilant in fact-checking and including appropriate disclaimers. Everyone loves free legal advice; don’t give it, or else open yourself to liability. If you run a pretty small operation, consider sharing informational articles written by established legal writers or legal news in your practice area instead of producing content yourself. Use these tips to stay squeaky clean on social:

  • Be explicit in identifying that you are not someone’s attorney at the start of any digital communication.

  • If you include detailed information about your track record anywhere on social, include your “Attorney Advertising” disclaimer. Though attorneys are just starting to do this, consider making it a hashtag to fit the 140-character limit on Twitter. (#AttorneyAdvertising)

  • If you do advertise on social, make sure you retain a copy of the ad on file for the requisite number of years for your jurisdiction. The same goes for any attorney-client communications. Take a screenshot or periodically download your sharing history or data.

  • Unless you are a certified specialist by your state bar association, you cannot claim a specialty on LinkedIn. Also, you may be required to remove any recommendations or endorsements you receive from connections per your state’s ethics code.

  • If your eccentric uncle posts comments to your social media posts that are—uh—questionable, you are complicit in his viewpoint. Disable the comments feature on posts or remove comments that could potentially violate the Rules of Professional Conduct. Similarly, you must delete or correct any comments that are factually inaccurate.

  • Moreover, be kind. The legal community is quite small, so bemoaning your fellow attorneys, judges, or legal professionals will lead to perpetual foot-in-mouth disease.

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