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Legal ethicists are playing catch-up to create social media guidelines for lawyers, judges

Posted Aug 10, 2013 4:42 PM CDT
By James Podgers

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Blogs, Twitter, Facebook, Google+, LinkedIn–there are now many social media platforms which lawyers are urged to use to build business and retain clients. But they also present many opportunities to run afoul of legal ethics rules.

In recent years, the states have been putting out a steady stream of ethics opinions and court rulings on how professional conduct rules for lawyers apply to social media. And a year ago, the ABA House of Delegates adopted several revisions to the Model Rules of Professional Conduct to give lawyers further guidance on how to adapt communications technology to how they interact with clients and prospective clients.

But panelists at the ABA Annual Meeting program "Things My Ethics Professor Didn't Tell Me: Top Ethical Pitfalls for the Social Media Age" expressed concern that all this effort still may not be keeping up with changes in communications technology.

The revisions to the Model Rules, which serve as the basis for binding ethics standards in every state–except California (which uses a different structure for its rules)–were adopted by the House at the 2012 ABA Annual Meeting in Chicago at the recommendation of the Commission on Ethics 20/20, which was created in 2009 to study the impact of technology and globalization on lawyer ethics and regulation.

"The Ethics 20/20 Commission did an extraordinary job," said panelist Juliet M. Moringiello, a law professor at Widener University in Harrisburg, Pa., to the audience of the ABA Business Law Section's event in San Francisco. "But so much electronic communications is running so far ahead of ethics rules, and the commission may still have been focused on what was rather than what will be."

While adding his praise for the efforts of the Ethics 20/20 Commission, Mac R. McCoy, a shareholder at Carlton Fields in Tampa, Fla., said a key will be the extent to which states consider adapting the commission's recommendations to their own professional conduct rules, and how much time that process will take. "There is a very real need to provide more ethics guidance on these issues," said McCoy.

Ethics professors didn't discuss those issues when most of the people in the audience were law students, because it probably hadn't started to come up. But they are being inundated with those issues now.

One example discussed by the panelists is the effect of such electronic communications tools like websites and blogging on the creation of a lawyer-client relationship. Online communications with a prospective client may create certain obligations that didn't exist with traditional forms of communications. "It can be difficult to manage and more complicated than it was before," said McCoy.

Unfortunately, revisions developed by the Ethics 20/20 Communications that were adopted last year by the House of Delegates didn't clarify the situation as much as they could have, said Ryan S. Stinneford, a partner at Hudson Cook in Portland, Maine, especially on the issue of how to define the difference between clients and prospective clients.

Another area that is receiving attention is the use of social media by judges. The general consensus developing is that judges should not seek to "friend" lawyers on social media sites who are likely to appear before them, but the specific application often is fuzzy. A 2011 opinion from Oklahoma, for instance, says judges may include lawyers as friends on networks like LinkedIn or Facebook "as long as they [judges] don't otherwise use the networks improperly." Opinions on the issue also urge judges to avoid the "appearance of impropriety" in their contacts with lawyers. But opinions, including ABA Formal Opinion 462, issued earlier this year by the Standing Committee on Ethics and Professional Responsibility, acknowledge that applying the standard can be difficult.

In general, said McCoy, lawyers should keep in mind that "changes in legal ethics rules ultimately will be driven by changes in the underlying technology."

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