South Carolina Lawyer
SC Lawyer, November 2009, #6.
Ethical Issues in Using Social Networking Sites
South Carolina LawyerNovember 2009Ethical Issues in Using Social Networking Sites When I started to write this column, my thesis was that social networking sites, such as Facebook, Linkedin, and Twitter, did not present any novel ethical problems. "There is nothing new under the sun" was to be my subtitle. My argument was that the new social networking sites are simply a form of communication, subject to the same ethical rules that already govern lawyer communications. In one sense this thesis is correct. While there are few opinions, proceedings, or decisions addressing the ethical issues presented by these sites, ones that do exist apply the traditional ethical principles and rules. But in another sense, this thesis misses the point of the social networking technologies. These technologies are a form of communication, but they radically increase the number of people with whom such communications are made, and they transform what are often ephemeral, private experiences into documented public expressions. To claim that social networking sites are not new is a little like saying that the automobile or television were not new because, after all, they were nothing more than forms of transportation or communication. This article, therefore, is a preliminary effort at addressing the application of traditional ethical concepts to the new social networking sites.
1. Confidentiality. Rule 1.6 provides that a lawyer may not reveal information relating to the representation of a client unless the client gives informed consent or some exception applies. A recent article reports that Illinois disciplinary authorities have commenced proceedings against an experienced public defender who reported on her cases in her blog. John Schwartz, A Legal Battle: Online Attitude vs. Rules of the Bar, NY Times, September 12, 2009. Similarly, in using Twitter to tell followers what a lawyer is doing, a lawyer could reveal client confidences. A lawyer might try to protect himself against an allegation of breach of confidentiality by limiting statements to vague, general postings that did not reveal specific client information. Another possibility is to limit communications to public information. Postings or tweets at that level of generality, however, are likely to be uninteresting. Finally...