Wisconsin Lawyer
Vol. 85, No. 5, May 2012

Lawyers are under some pressure to use social media to market their law firms and stay connected to clients. Although a social medium can be a cost-effective way to reach a large audience, you risk losing control of your message, creating unrealistic client expectations, inadvertently creating an attorney-client relationship, and running afoul of the rules of professional conduct.

The question is: How can you operate effectively and appropriately in a Web-based environment without leaving yourself vulnerable to a malpractice claim or a complaint to the Office of Lawyer Regulation?

Recently, I spoke about this topic at the State Bar Young Lawyers Division Leadership Conference. The conference included a panel discussion among lawyers who are active with blogs, Twitter, Facebook, and other social networking sites. Panelist Marc Adesso, with Devos & Zerbst, Madison, says it is important for lawyers to become familiar with and understand social media. "Even if attorneys do not use it themselves, their competition and clients will be using it."

Benefits

What are the benefits of blogging or having a Facebook presence? Staying relevant and connected, for starters. Adesso says, "Social media is generally free to use and it provides attorneys a means to attract clients without spending precious marketing dollars. It provides an opportunity to demonstrate to tech-savvy clients that an attorney has competency in their area of expertise and commerce. I also like social media because it gives attorneys a means to directly tailor their online presence and message as they see fit. An excellent example of this would be the creation of a blog about a specific practice area. A free blog on Wordpress.com can be made to look as well-made as a professionally coded website, but can be filled with content written exclusively by an attorney."

In addition, social media tools such as blogs and Facebook can provide a large marketing and advertising audience; immediacy; enhanced consumer interaction, visibility, and feedback; and enhanced mobility and access.

Risks

Use of social media can, however, be risky. Potential hazards include losing control over your message, blurring professional and personal use, expending too much time and money on managing social media use, creating unrealistic client expectations, and making false or misleading communications about a lawyer's services, not to mention the possibility of violating the rules of professional conduct.

Adesso cautions, "Attorneys using social media must be aware that anyone can read what is placed on the Internet, and that the usual ethical prohibitions relating to false or misleading communications, direct contact with individuals represented by counsel and against real-time solicitation of clients apply as strongly in the world of social media as they do in the real world. In addition, some mediums of social media, such as Facebook, allow for grey area communications that have not been clearly defined as real-time (or not) by any court of competent jurisdiction."

When using social media specifically for client development or marketing, you should be aware of the following additional risks:

• Inadvertently establishing a lawyer-client relationship;
• Providing legal advice to a nonclient without checking for potential conflicts of interest;
• Not having enough oversight about how the firm or lawyers in the firm are being held out to the public;
• Making snap decisions on new client intake;
• Violating rules prohibiting direct solicitation of prospective clients; and
• Engaging in the unauthorized practice of law or practicing out of jurisdiction.

In a Web-based environment, confidentiality can be more easily compromised than it might be when working through more traditional communication methods. Adesso says, "There are many times when social media is not the best forum to use. Social media does not easily allow for confidential communications, and thus should not be used in conjunction with any kind of adverse communication or contact with opposing counsel. In addition, there are many channels of advertising that will reach certain clients in a way that will not work on social media. However, if social media is done properly, it can act as an excellent entree to the more sophisticated or traditional means of communicating the message."

Confidentiality can be breached in a number of ways when operating in an electronic environment, including by:

• Failing to back up or protect client information;
• Leaving a computer on or unattended;
• Failing to secure your wireless network;
• Having inadequate security (antivirus software and a firewall);
• Failing to remove metadata or password protect-sensitive email attachments;
• Inadvertently using the auto-fill function when sending email;
• Inadvertently disclosing privileged or confidential client information;
• Disclosing information without a client's informed consent; and
• Failing to provide a client with an electronically stored file.

Then there is the risk of negligence or even misconduct. Anything you tweet can be used against you! The risks include:

• Engaging in ex parte communication;
• Making deceptive requests to gather information;
• Failing to advise clients of the risks inherent in using social networking sites;
• Directly contacting an adverse party;
• Leaving an electronic trail that might provide a roadmap for a legal malpractice claim; and
• Not taking the time to ensure the legal advice you give is correct.

General Social Media Pitfalls

Dan Pinnington, director of the legal malpractice claims prevention program for Lawyers Professional Indemnity Company, which provides insurance coverage to lawyers in Ontario, Canada, has compiled a list of pitfalls that lawyers should consider when diving into the social media world. Here are some of the potential dangers he highlights:

1. Don't talk about clients or their matters. Pinnington admits this one should be obvious, since it is one of the basic tenets of the lawyer-client relationship. He says, "Blurting out something about a client in any of the social networking tools, in particular anything sensitive or confidential, is a bigger blunder than the proverbial comment on an elevator. Hundreds or even thousands of people can potentially access the information."
   
   Pinnington also warns lawyers about posing questions or seeking strategic advice when connected with other lawyers on a social networking site. "Remember, even generic questions or comments about a matter you are handling could be read and recognized by someone on the other side."
2. Don't talk to clients about their matters. Privacy settings can vary on different social networking sites, and so, Pinnington says, it is always dangerous for a lawyer to communicate with a client through these sites. "It is best to avoid posting anything about a specific matter you are handling for a client, even if the client prefers communicating that way."
3. Know and respect the marketing-related Rules of Professional Conduct. The information on websites is communication about the lawyer's services and therefore subject to regulation under the advertising rules (SCR 20:7.1 – 7.5). Pay particular attention to SCR 20:7.3 – the rule regarding solicitation. Any format through which a lawyer chooses to communicate his or her services is governed by the rules. This includes newspaper ads, Facebook, Twitter, and other social media communications.
4. In short, be careful what you say on Facebook, Twitter, and all other social networking sites.
5. Don't engage in the unauthorized practice of law. Anything you post on the Internet can be accessed from anywhere in the world. Providing legal services online means you could be dealing with prospective clients outside of Wisconsin, or even outside the United States. You might want to include jurisdictions in which you are licensed to practice law on your webpage, Facebook, or other forms of electronic communication you use. As Pinnington says, "Your clients should understand where you can and can't practice."
6. Avoid conflicts of interest. Pinnington cautions, "The very nature of social media makes you more vulnerable to conflict-of-interest situations. Much of the information posted on social networking sites is public, and people frequently use an email or online name that is shortened or different from their usual name when communicating online. This could also occur when someone with an ulterior motive contacts a lawyer online."
   
   Make sure you know who you are actually communicating with online. Pinnington suggests taking reasonable steps to determine the actual identity of people with whom you are dealing.
7. Don't give legal advice online. According to Pinnington, "There is a huge difference between providing legal information and giving legal advice." He says the information/advice distinction can easily become blurred when a lawyer and nonlawyer are communicating on a social network, especially if the lawyer is providing answers to specific questions.
8. In addition, he says, a lawyer-client relationship can be formed with very little formality. "To avoid this danger, be cautious about saying anything online that might be construed as legal advice. Include a disclaimer on your blog and within any information you post online or on a social networking site."
9. Protect your identity. One of the hidden risks of social networking is identity theft. Pinnington says it is a bigger risk than you might think. "Profiles can include information about you such as birth date, what law school you attended, or your mother's maiden name. The pre-Internet era made this information very private, social networking sites make it much more accessible."
10. Don't make the wrong "friends." In the world of social networking, people you have never met might want to "friend" you. Social networking tools have the ability to create networks of contacts far larger than most of us had in the past. Pinnington says, "Think strategically about whom you want to be friends with, and don't blur your personal and professional lives online." He explains that Facebook and other social networking sites initially were almost entirely personal-networking sites – it was easier to keep your personal and professional online presences separate. "Now many social networking tools are becoming connected and taking on more of a commercial aspect. Use different strategies and information, depending on whether you are using a social medium as a personal or professional connection tool."

Conclusion

Online social networking sites and the use of electronic information provide unlimited resources that lawyers can use and at a relatively low cost. That is good news for lawyers looking to meet the challenges of today's ever-changing practice of law and new demands from clients.

However, lawyers risk losing control of their message, creating unrealistic client expectations, inadvertently creating an attorney-client relationship, and generally running afoul of the rules of professional conduct.

Use social networking sites to better serve your clients and help create new business. But do not lose sight of your ethical obligations in accessing, or protecting a client from, information disclosed electronically.

Technology and the way lawyers use it will continue to evolve rapidly. As Adesso puts it, "I think that the legal industry as a whole is going through a shift with regards to marketing and client generation. As emerging technologies such as social media and Internet/cloud-based computing become mainstream, many revenue streams available to attorneys will be diminished or shifted away from attorneys and back to clients' control. I think there will be movement toward a more virtualized firm model, at least for some services. As a result, the use of social media as the point of initial contact in the virtual world will continue to grow as more and more individuals and businesses move to the Internet for not only research on service providers, but also for provision of services from providers via the Internet."

Wisconsin Lawyer