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lawyers social media

The Repeat Ethical Offenders of Social Media

Social media is a great tool for keeping up with the news, friends and family, sometimes in the blink of an eye.

Despite the many benefits of this hyper connectivity, however, social media can also cause problems in the business world for those whose viewpoints may conflict with their clients, employees or colleagues. While there are a variety of these social media ethics violators, there are three types that all lawyers should know about and avoid emulating.

Read on for a list of these repeat offenders, as well as tips on how to avoid being one of them.

The Double Agent

The Double Agent is someone who takes a contradictory viewpoint on social media compared to their client. According to Corporate Counsel magazine: “In November 2016, the Washington, D.C., bar published Ethics Opinion 370, warning social media-active lawyers to take caution when posting opinions opposing those of a client. Those instances could create ‘positional conflicts,’ the opinion said.”

For example, if an attorney represents a local safari club, she would be creating a potential conflict by posting on Facebook in support of PETA. Admittedly, most possible conflicts aren’t that black and white. Each lawyer must judge for themselves whether a statement could put them in conflict with a current or future client and proceed accordingly.

While reining in your views on social media might seem unfair, it may be the best way to avoid being accused of a conflict later.

The Rebel

Similar to the Double Agent, the Rebel posts about values that run opposite to those espoused by her firm, which can lead to dismissal and allegations of casting her employer in a negative light.

One somewhat infamous case involving a Rebel happened a few years ago at the Kansas Court of Appeals, where research attorney Sara Peterson Herr came under fire after issuing a Twitter message that called the former Kansas Attorney General a “douchebag” and predicted he would be disbarred for seven years as part of an ethics probe. She was soon fired and hit with charges of violating the Kansas Rules of Professional Conduct. After two years of legal wrangling, she received the lightest punishment possible when a three-judge panel found that her disbarment prediction was prejudicial to the administration of justice.

As the Kansas case illustrates, political speech seems to be a recurring issue of concern for lawyers and their employers. After all, clients come in all political stripes and it’s not wise to post anything publicly that could alienate a current or potential client. Rather than prohibiting lawyers from making any political statements on their social media, however, the most practical counsel is for lawyers to practice good judgment and avoid making inflammatory comments (e.g. “douchebag”).

Just as parents advise their teens not to say anything on social media that would horrify their grandmothers or college admissions counselors, a marketing savvy lawyer will avoid driving away business from clients who might not share their political views.

The Frenemy

The Frenemy, while outwardly committing the seemingly innocent act of adding a judge to her “friend” list, can end up becoming her own worst enemy by placing herself and the judge in an ethical gray area.

The Florida Supreme Court summed up this problematic relationship perfectly when it ruled that “judges could not add lawyers who appear before them as friends online. The simple fact is that judges’ participation in social media networks can well be seen as a per se violation of the appearance of impartiality.”

While there don’t appear to be any rules in Texas that govern judge/attorney social media friendships, potential headaches can be avoided by not making those connections in the first place.

If you do choose to “friend” a judge (or, let’s say, you’re already friends with someone who is then elected or appointed to a judicial position), be mindful that the friendship, on social media and in real life, presents possible ethical problems, specifically the possibility of ex parte communications. Proceed with caution.

Important Safeguards

Now that you know how to identify each of these common social media repeat offenders, the next step is to make sure you don’t turn into one of them.

Here are some helpful hints, strategies and tips to make sure your social media experience is free of ethical concerns:

  1. Listen to your instincts. If you have to think twice, don’t post!
  2. Physically prevent yourself from using your social media accounts while drinking alcohol or engaging in any emotionally-charged activity (like watching The Voice). You may even want to download this app.
  3. Never post right before a flight! Or anywhere else without long-term Wi-Fi access, just in case you need to do some damage control after sending out a questionable post.
  4. Know the rules. This handbook from the Texas Young Lawyers Association (and distributed by the State Bar of Texas) is an excellent summary of the rules for lawyers marketing themselves in the digital age. And, as in all things, always comply with the Texas Disciplinary Rules of Professional Conduct. 

Christina DiPinto is a copywriter and content strategist who has always wanted to make lawyers happy (“always” isn’t an understatement – her mother and uncle are both attorneys). When she’s not focused on developing marketing communications for the lawyers in her life, Christina can be found practicing yoga, playing pub trivia, and planning trips to the #WestCoastBestCoast. Say “hi” via christina.dipinto@musecommunicationsllc.com. 

Muse Communications LLC helps lawyers and law firms grow their business through content marketing and highly targeted media relations. Contact us at info@musecommunicationsllc.com.

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