focus

Social media ethical

obligations for lawyers

People. Partnership. Performance.

Introduction • Think twice before posting. Avoid posting
information that could be interpreted as
Social media has revolutionized the world we live
legal advice on a public platform. Lawyers
in today. Individuals can share information with
should offer electronic legal advice
their friends, family, coworkers, and clients over
privately to clients in a direct message or
several platforms (such as Facebook, LinkedIn,
email. In a situation where lawyers can
Twitter, and blogging websites). It is rare to
interactively provide free legal advice over
meet someone who does not use at least one
the Internet to members of the public,
social media site for personal or professional
lawyers should make sure the recipients
purposes – and lawyers are not exempt from this.
reside in jurisdictions where they are
Many lawyers and law firms use social media
licensed to practice law.
for business purposes to advertise services and
employment opportunities, network with other • Be mindful of the platform’s sharing
legal professionals, share compelling legal news, capabilities. When posting on a site like
communicate with clients, and attract new Twitter or Facebook where individuals
business. can share content worldwide, make
sure the information is general and does
While the benefits are plentiful, lawyers need to
not contain legal advice. Examples of
be careful when using social media as lawyers
acceptable topics include generalized legal
have several ethical obligations when it comes to
news updates and case summaries.
its use. These rules affect a lawyer’s practice habits,
including how they post on social media, advertise • Be transparent about licensing and
and market their services, approach litigation and representation. As lawyers, knowing what
eDiscovery, train support staff, and handle client language and actions form an attorney-
interaction. As such, lawyers must consider their client relationship is crucial. Under ABA
ethical duties before using social media in both Model Rule 1.18(a), “a person who consults
personal and professional contexts. with a lawyer about the possibility of
forming a client-lawyer relationship with
General social media obligations respect to a matter is a prospective client.”
Jurisdictional Considerations When posting on social media platforms,
lawyers should consider including a
Social media posts have the potential to reach
note about where they are licensed or
individuals in any area of the country. This may be
a disclaimer stating that their content
problematic if a lawyer shares information outside
is not meant to form an attorney-client
of their practicing jurisdiction. Under American
relationship or provide legal advice. This
Bar Association (“ABA”) Model Rule 5.5(b)(2),
is especially ideal for lawyers who blog or
lawyers are prohibited from sharing information
post on an interactive platform.
that would make the public believe that they are
admitted to practice law in a jurisdiction where Advertising legal services
they are not licensed. Because of this, lawyers Some lawyers may choose to advertise their
need to be mindful of what content they post services over social media. While lawyers are
and where it is shared. Lawyers should consider allowed to communicate information regarding
implementing the following practices when their services through any media1, advertisements
posting on social media: must not be false or misleading.2

1
ABA Model Rule 7.2(a), Communications Concerning a Lawyer’s Services: Specific Rules
2
ABA Model Rule 7.1, Communications Concerning a Lawyer’s Services

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Additionally, comment 12 to Rule 7.2 provides includes law clerks and paralegals that work
that “any communication about a lawyer or closely with them on case files. Lawyers are
law firm’s services include the name of, and expected to monitor the non-lawyers’ activities to
contact information for, the lawyer or law firm. ensure they behave ethically. When a non-lawyer
Contact information includes a website address, a behaves unethically on social media, lawyers can
telephone number, an email address or a physical be held responsible for their actions if they order
office location.” This is a simple obligation that the conduct, ratify the conduct, or fail to take
lawyers should not overlook when posting an remedial action.5 Because of this responsibility,
advertisement. lawyers must ensure that their support staff
Lawyers must also be conscientious of their is aware of acceptable social media practices
intentions. When a lawyer knows someone in the workplace. In addition to supervising
needs legal services and they try to solicit their these individuals, hosting team meetings and
business for pecuniary gain, ABA Model Rule training will help non-lawyers understand what is
7.3 prohibits live person-to-person solicitation expected of them.
in most situations. This is because it can make Social media and litigation
the individual feel pressured and hinder their
Lawyers frequently encounter social media during
decision regarding representation. If the lawyer’s
litigation, especially during the trial and discovery
communication is geared towards the public,
phases. During trial, lawyers are prohibited from
such as in a social media Internet banner, it is not
making extrajudicial statements to the public that
solicitation.3 The rule also defines “live person-to-
could prejudice a trial.6 However, the ABA rules
person contact” as “in-person, face-to-face, live
allow lawyers to make statements that “protect
telephone and other real-time visual or auditory
a client from the substantial undue prejudicial
person-to-person communications where the
effect of recent publicity not initiated by the
person is subject to a direct personal encounter
lawyer or the lawyer’s client.”7 For example, if
without time for reflection.” This does not include
opposing counsel publicly makes a negative claim
chat rooms, text messages, or other written
about the lawyer’s client over social media, they
communications that people can easily disregard.4
can rebut the claim as mitigation and to lessen
As such, under the ABA’s approach it appears
the prejudicial effect.
that direct social media contact that users can
ignore, delete, or block would not fall under this During discovery, lawyers have ethical duties
umbrella. However, this is an area where it is very to preserve and disclose all information that is
important for lawyers to know their state’s take relevant to a lawsuit. Under ABA Model Rule
on advertising ethics, because the states vary on 3.4(a), lawyers are prohibited from unlawfully
what constitutes live person-to-person contact. obstructing another party’s access to evidence
or unlawfully altering, destroying, or concealing
Responsibility for non-lawyers
a document with potential evidentiary value.
Lawyers are also responsible for the actions of Additionally, ABA Model Rule 3.3 requires that
non-lawyers that they retain, employ, or associate lawyers act with candor towards the court. As
with in the course of business. This commonly such, during discovery lawyers must disclose all

3
ABA Model Rule 7.3 - Comment 1, Solicitation of Clients
4
ABA Model Rule 7.3 - Comment 2, Solicitation of Clients
5
ABA Model Rule 5.3, Responsibilities Regarding Nonlawyer Assistance
6
ABA Model Rule 3.6(a), Trial Publicity
7
ABA Model Rule 3.6(c), Trial Publicity

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relevant documents (other than those protected is that users can easily delete or change their
by privilege) in their original format to avoid content. Sometimes there is also interactive
violating these rules. For example, Rule 3.4 applies content that makes collection difficult. Lawyers
to situations where a lawyer advises a client to may need to send a subpoena to the actual
delete or alter social media content that is relevant social media provider or use more technically
to a lawsuit. The Sedona Conference recently advanced collection methods in order to obtain
weighed in on this issue: relevant information.9 For example, merely taking
Several states have issued ethics opinions a screenshot or printing out a social media
or guidelines relating to attorneys webpage may not be an accurate reflection
counseling clients regarding their use of of the content because it may not include
social media. Those opinions generally certain metadata, videos, or other embedded
provide that attorneys may advise clients information.10 This could be a potential Rule 3.4
regarding changing privacy settings or violation if the missing data holds evidentiary
removing content, as long as they also value. For social media data containing
satisfy preservation obligations and do relevant evidence, lawyers must provide proper
not obstruct another party’s access to authentication and include all key data in the
evidence. In other words, “unless an production. More technically involved collection
appropriate record of the social media methods include dynamic capture and content
content is preserved, a party or nonparty downloading from the provider. 11
may not delete information from a social Accessing social media data has also been a hot
media account that is subject to a duty topic of debate in the legal profession. Lawyers
to preserve.” For example, an attorney cannot friend request a party, witness, or juror on
may advise a client regarding changing a social media website in order to gain access to
privacy or security settings to limit access their private information for purposes of collecting
to the client’s social media outside of the data to use in litigation. This could potentially
formal discovery context. Similarly, an violate several ABA rules, including Rule 4.2
attorney may advise a client to “take down” (communication with represented person), Rule
or remove content, as long as it is does 4.3 (communication with unrepresented person),
not violate substantive law or the duty to and Rule 8.4(c) (conduct involving dishonesty,
preserve.8 fraud, deceit or misrepresentation).12 It is also
Therefore lawyers must be careful when unethical to advise clients to friend request
instructing clients about their past and future someone for this purpose. However, data that is
social media activity. Failure to preserve significant publicly available for viewing is fair game. Even if a
evidence can result in sanctions, license lawyer is upfront about their identity and purpose
suspension, or an unfavorable litigation outcome. for sending a friend request to an interested party
during active litigation and it seems harmless, the
Additionally, lawyers must implement ethical lawyer should refrain from doing this because the
social media collection practices during discovery ethics of this action may still be questionable.
and trial. One obstacle with social media collection

8
The Sedona Conference Primer on Social Media, Second Edition, pp. 47-48 (July 2018 Public Comment Version)
9
Id at 19.
10
Id at 22-23.
11
Id at 23-26.
12
Id at 49-50

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Another commonly debated topic is whether requires lawyers to keep client information
lawyers can be friends with judges on social confidential unless the client provides informed
media. It would make sense for judges and consent.14 Any communications with clients
lawyers to want to make social media connections, over social media should be conducted through
since many run in the same circles. Being friends private messages to maintain privacy. If the
on social media with a judge that the lawyer does lawyer is involved in active litigation, they should
not have cases before would likely not be an issue. refrain from posting any information about
However, lawyers should consider the optics of the lawsuit that could violate the confidential
having social media relationships with judges that attorney-client relationship. Clients should also
they regularly have cases before. This could bring avoid communicating about their case over
up questions of bias during litigation that the social media in order to maintain a confidential
lawyer could avoid simply by not connecting with attorney-client relationship. In addition,
the judge on social media. lawyers should only engage in social media
communications with their clients over secure
Social media and clients networks to lessen the risk of a damaging data
Model Rule 1.1 requires lawyers to provide breach.
competent representation to their clients. As of
As noted previously, lawyers sometimes use social
2012, this includes keeping abreast of changes in
media to offer information about legal topics
the law and its practice, including the benefits
to the public. According to the ABA, lawyers
and risks associated with relevant technology.
still must maintain confidentiality during these
While lawyers obviously do not need to be
activities. In a recent opinion, the committee
information technology experts, they must
concluded that “lawyers who blog or engage
understand the basic features of technology
in other public commentary may not reveal
commonly used in legal practice.13 Now that many
information relating to a representation that is
lawyers commonly use or encounter social media
protected by Rule 1.6(a), including information
in their practice and personal lives, they must keep
contained in a public record, unless disclosure
up with significant developments and understand
is authorized under the Model Rules.” 15 One
how to ethically use social media.
situation where disclosure is ethical is when a
First and foremost, to maintain competent client gives their informed consent to divulge
representation lawyers must never divulge certain information.
confidential client information over any medium,
including social media. ABA Model Rule 1.6

13
ABA Formal Opinion 477R* (May 11, 2017; Revised May 22, 2017)
14
Other exceptions are if disclosure is impliedly authorized in order to carry out the
representation or the disclosure is permitted. ABA Model Rule 1.6(a), Confidentiality of
Information.
15
ABA Formal Opinion 480 (March 6, 2018)

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 Conclusion
Social media is becoming more prevalent in the legal
community because it provides an interactive way to connect
with clients, other legal professionals, and the public. However,
lawyers must consider potential ethics violations before
posting or responding to social media content. When it comes
to personal accounts, lawyers should make these accounts
private and limit the legal material they share. When posting
on personal accounts, lawyers still need to act professionally. If
lawyers are using social media to conduct business or provide
public commentary on a legal issue, they must maintain client
confidentiality and avoid creating unintentional attorney-client
relationships, amongst other things. Firms should consider
implementing social media workplace policies and provide
training courses about ethical social media practices. Any
ethical violations can result in court sanctions or disciplinary
action from the lawyer’s state bar. While many jurisdictions
adapt to the ABA’s rules, some jurisdictions depart on certain
issues or have published varied opinions. To stay on top of
their ethical obligations, lawyers should become familiar with
the rules and opinions of each jurisdiction in which they are
licensed to practice law.

Disclaimer: This publication is intended for general marketing and informational purposes only. No legal
advice is given or contained herein or any part hereof, and no representations, warranties or guarantees is
made in respect of the completeness or accuracy of any and all of the information provided. Readers should
seek legal and all other necessary advice before taking any action regarding any matter discussed herein.

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