Ethics of lawyer social networking.

• Author: Bennett, Steven C.

Social networking via the internet (sometimes called "Web 2.0") can be a low-cost way to connect with friends, family and old acquaintances, and form new relationships. (1) For lawyers, social networking can make business development "faster, better and cheaper." (2) As a result, it has become a topic of interest for many in the legal profession. (3) In a 2009 survey conducted by the American Bar Association, forty-three percent of lawyers surveyed said that they are members of at least one online social network (this compared to only fifteen percent in 2008). (4) Twelve percent of respondents reported that their firms are also members of at least one online social network. (5) Online social networking thus may play an increasing part in the legal community, and will continue to evolve as developers produce new innovations to increase the number and quality of services offered. (6)

This technology and the frequency of its use has already outpaced established legal practices. Existing ethics guidelines generally do not focus on technology issues, and state bar associations have been slow to fill in the gaps with opinions and best practice guides. (7) Yet lawyers require at least a basic understanding of how social networking works and some awareness of the ethical implications of using such technologies. (8) This article briefly addresses some of the ethics issues lawyers may face when they use social networking tools. (9)

1. WHAT IS SOCIAL NETWORKING?

   Social networking Web sites allow registered users to upload profiles, post comments, join "networks," and add "friends." (10) They give registered users the opportunity to form "links" between each other, based on friendships, hobbies, personal interests, and business sector or academic affiliations. (11) Social networking sites can be used both personally, to contact friends and find old classmates, and professionally, to look for employment or find someone with whom to collaborate. Most social networking systems are available to all users. Some are available by invitation (or special qualification) only. Most begin with a personal focus on linking "friends," but many now are used both for business and personal networking purposes. Some directly solicit participation by lawyers. (12)

   These sites have received significant media attention. (13) Employers now search social networking sites before hiring employees; (14) consumers worry about protecting themselves from identity theft; (15) and parents seek to keep their children safe from online predators. (16) Advertisers, moreover, increasingly seek ways to exploit social networking systems to entice users into commercial relationships. (17) These kinds of concerns are multiplied when legal professionals use social networking tools.

2. ETHICAL CONSIDERATIONS: A SURVEY

   As suggested below, the ABA Model Rules of Professional Conduct ("Rules") do not directly address all of the ethics concerns associated with social networking. (18) The Rules, however, point to potential issues in a number of areas. The following survey of some of the essential ethical considerations associated with lawyer use of social networking examines the terms of the Rules and reviews some interpretations of the Rules provided by bar ethics opinions, cases, and commentaries. (19)

   1. Competence, Diligence and Supervision

      Rule 1.1 requires that lawyers provide "competent representation to a client." (20) Competent representation requires the "legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." (21) Because "[a] lawyer may accept representation where the requisite level of competence can be achieved by reasonable preparation," it is difficult for a law to meet the competency threshold in more technical or complex matters. (22) In accordance with these basic principles, lawyers who use social networking tools must at least have a working understanding of the technology. (23) As the technology is new, and ethics rules and opinions are still developing, lawyers must also keep track of new professional responsibility pronouncements in the area. (24)

      Lawyers cannot "pass the buck" regarding use of these tools. Rule 1.3 requires that lawyers "act with reasonable diligence and promptness in representing a client." (25) Further, Rules 5.1 through 5.3 make clear that lawyers must take responsibility to supervise the paraprofessionals and administrative staff that work under their direction. (26) In short, lawyers and law firms must develop policies and procedures for the use of (or preventing the use of) social networking, and must take affirmative steps to enforce such rules. (27)

   2. Confidentiality and Privilege

      Rule 1.6(a) proscribes lawyers revealing information "relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted" under one of several enumerated exceptions. (28) Comment 16 to Rule 1.6 notes that lawyers "must act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer's supervision." (29) The lawyer's duty requires choosing a means of communication for which the lawyer has a reasonable expectation of confidentiality. (30) Comment 17 lists factors for determining the reasonableness of a lawyer's expectation of confidentiality, which include the sensitivity of the information and the extent to which the privacy of the communication is protected by law or by a confidentiality agreement. (31)

      An ABA ethics committee has opined that it is not reasonable to require that a mode of communication, such as email, be avoided simply because interception is technologically possible, especially when unauthorized interception of the information is a violation of law. (32) Nonetheless, lawyers "may be required to keep abreast of technological advances in security, as well as the technological advances being developed by hackers who are seeking to steal secrets from third parties." (33) Ultimately, a client may require that the lawyer implement special security measures, for certain confidential communications, in addition to what may be required by the Rules. (34)

      Social networking presents many new ways for lawyers to reveal client information, sometimes inadvertently. Lapses in confidentiality can occur on a firm's Web site and client intake forms, in emails and attachments, on lawyer blogs, bulletin boards, chat rooms, and listservs, and in many other communication forms. (35) Simply making a list of contacts public on a networking site, for example, could disclose a confidential relationship. (36) Additionally, lawyers may reveal information related to the representation of a client by linking to other Web sites. (37) Indeed, some social networking sites require that the user grant the site developer access to all information placed on the site. That arrangement could effectively destroy any claims of privilege or confidentiality regarding social networking communications. (38)

      The lawyer's confidentiality protection duty extends to persons providing service to the client at the lawyer's direction. Thus, commentary to the Rules states: "A lawyer must act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer's supervision." (39) Lawyers must ensure that paraprofessionals and administrative staff who may use social networking services are made aware of limits on confidentiality associated with such services.

      Finally, lawyers may need to discuss means of communications with their clients. Where, for example, a client uses an employer's computer system to communicate with a lawyer, claims of privilege may be lost because the employee may lack privacy rights in the system. (40) Lawyers may need to remind their clients of these and other threats to the confidentiality of their communications. (41)

   3. Creation of Unintended Attorney-Client Relationships

      An attorney-client relationship arises when "a person manifests to a lawyer the person's intent that the lawyer provide legal services for the person," and the lawyer either manifests "consent to do so," or "fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services." (42) Under this standard, even if a client never executes an engagement letter, an attorney-client relationship may be implied from the conduct of the parties. (43) Thus, a lawyer who provides casual advice, or solicits confidential information from an acquaintance, risks a claim that an attorney-client relationship has developed. (44)

      Rule 1.18, moreover, specifies the duties of a lawyer to a "prospective client," that is, "[a] person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter." (45) According to the rule, "[e]ven when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation," except in limited circumstances. (46) Rule 1.18, moreover, advises that a lawyer "shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful" to the prospective client. (47) If a lawyer is disqualified for violating Rule 1.18, no other lawyer in the same firm may conduct the representation, except it both the affected client and the prospective client...