How to Manage the Expanding Use of Social Media

Why Use Social Media: Pros And Cons

Utilizing social media tools offers endless opportunities for lawyers to network themselves, network their practice, and engage in varying degrees of advertising, branding, marketing and soliciting as a means of “getting their name out there.” Due to the vast growth and enormity of the social media world, utilizing these tools is a guaranteed mechanism of reaching a broad audience. Social media provides effective means for reaching prospective clients, allows for constant communication with current clients, and provides means for giving back to the legal industry in the form of blogs, online chats and online groups to discuss an array of topics. Such topics may include advice, knowledge, intricacies of specific laws as they range from state to state, and the like.

While social media offers the above-mentioned benefits, those same benefits can quickly take a turn for the worse. A major downfall with utilizing social media is that the world of social media, as developed and sophisticated as it can be, does not provide a means for determining the accuracy of the content distributed throughout the channels of social media and control over what information is accessible to recipients. This leads to a disturbing amount of fraudulent responses and scams. A plethora of false advertising, inaccuracy in the content of information, inaccurate advice provided on online blogs or chats, or improperly quoting or citing applicable laws and rules can exist on any given website. Lawyers in the field of equipment leasing, as well as all practicing lawyers, should make sure to not only fully and accurately represent themselves and their practices, but should also embark on a journey of due diligence and ensure they are relying on true and accurate information, as opposed to walking straight into a scam.

Ethical Issues

It is essential to abide by rules of professional ethics that may vary from state to state, as they pertain to the use of social media. It is equally as important to recognize the legal implications arising from breaching these rules of professional ethics. We highly recommend researching and studying the rules of professional ethics in your state or any state in which you practice. While issues concerning advertising, copyright and infringement, false and/or misleading information and solicitation barely touch upon all the ethical concerns currently squirming their way through the use of social media, they are areas of major concern and enforcement that need to be discussed.

One highly coveted area of increasing importance relates to advertising through the various channels of social media. When describing yourself and your legal practice on your website, LinkedIn profile, Facebook page, or on any other social media website, it is easy to boast your own experience or talent, and show worldly levels of experience and success. But be careful of what you say and how you say it! Make sure every word contained on every social media page is 100% accurate and cannot be interpreted in any misleading manner. False and/or misleading advertising carries strict legal consequences.

Additionally, each lawyer should be the true originator of all information posted on any social media website about himself/herself or his/her law practice. Infringement and copyrighting are two areas of increasing scrutiny in the legal community, especially as they relate to the use of social media. Be careful to not use someone else's information, content, symbols, etc. Engaging in infringement or copyrighting is considered a “strict liability tort” and carries significant legal implications. The lack of knowledge (i.e., that the information belongs to someone else) is not a defense. If you are unsure as to whether the content you are about to post is original, embark on your own journey of due diligence again and see if any other information, symbols or the like exist out there in the world of social media. This is particularly relevant to the area of equipment leasing, as this field, in addition to the lawyers practicing within this focused area of the law, is quickly expanding and the use of social media tools is viewed as a reliable means to grow the industry of equipment leasing.

As a means of grasping the potential issues currently looming out there in this world of social media as it relates to content posted by lawyers, the American Bar Association Ethics 20/20 Committee is currently in the process of examining the need to provide formal guidance, recommendations and/or changes to the ABA Model Rules of Professional Conduct addressing lawyers' use of social media as a client development tool.

The following rules are mere examples of some of the many relevant rules to be considered before placing information on social media websites and relying on information obtained from social media websites:

Rule 7.1 of the ABA Model Rules of Professional Conduct, titled Communications Concerning a Lawyer's Services: A lawyer shall not make a false or misleading communication about the lawyer and/or the lawyer's services. “False or misleading” is defined as omitting a fact necessary to make the statement, when considered as a whole, not materially misleading. For example, comparing the lawyer's services with another lawyer's services as a means of creating unjustified expectations about the results the lawyer can achieve is considered suspect and subject to strict scrutiny in the world of legal professional ethics. The lawyer placing information on any social media website is responsible for ensuring the content of the social media sites is accurate and comports with Rule 7.1 and for deleting any misleading or untrue content.

Rule 7.2 of the ABA Model Rules of Professional Conduct, titled Advertising, governs the issue of advertising through the use of social media. Until authority states otherwise, and to play it safe, all lawyers should consider the information they disseminate through social media as “advertising.” While lawyers can certainly make an argument that they are participating in social media for reasons unrelated to advertising, it can be difficult to distinguish between content that can be considered advertising and content that is not meant for the purposes of advertising. Bar associations' ethics committees in Arizona, Alabama, Illinois and Texas have recently issued statements indicating interpretive comments contained on social media sites, where the information is available to the public at large, are considered advertisements and they must be filed with the bar, “unless access is limited to existing clients and personal friends.” Steven W. Kasten, “The Profession: Professional Ethics and Social Media,” Boston Bar Journal, Summer, 2011.

Rule 7.3 of the ABA Model Rules of Professional Conduct, titled Direct Contact with Prospective Clients, governs the issue of solicitation, as it pertains to the use of social media. Specifically, Rule 7.3 states, in relevant part, that all solicitations that are “in person or by personal communication” (which includes communication by an electronic device) are prohibited. Further, Rule 7.3 requires written solicitations of prospective clients be retained for two years. Comments contained in this rule waiver on the issue of whether chat rooms, newsgroups or electronic bulletin boards constitute permissible written solicitation or even may be considered “in-person” solicitation. A lawyer who is posting general commentary about a legal issue online and who invites prospective clients to access the discussion, is generally not viewed as soliciting, as long as the lawyer's comments are not accompanied by any recommendation or invitation to retain that lawyer. As a means of “controlling” the issue of solicitation, a lawyer is not permitted to pay anything of value for a recommendation posted on one's LinkedIn profile or for others publishing testimonials on personal websites. We advise you to seek out your state's rules and opinions on this issue.

Again, we cannot emphasize en-ough: Be careful with what information you are publishing for the world to see and what information you are receiving! The growing use of social media in the equipment leasing industry must be productive and, in order for the use of social media to be productive, lawyers in this industry must abide by the Rules of Professional Conduct.

Publicly Transferred Information and Litigation

Lawyers are increasingly subject to disciplinary review for improperly publicizing cases, criticizing judges and their decisions, and divulging attorney'client-privileged information. Social media interactions place risks on the lawyer of being disqualified from a case based on communication with unintended recipients or the transfer of improper information with an intended recipient. For example, receiving confidential information in an unsolicited e-mail transmitted through the lawyer's website does trigger the duty of confidentiality that may disqualify the lawyer and/or one's firm from representing its clients with adverse interests, absent an effective disclaimer. Social sites that are of a public nature (i.e., an open chat room) are unlikely to give rise to the duty of confidentiality, but this rule is not set in stone.

Additionally, privacy law is playing a larger role in the legal community, and privacy on the Internet is gaining increasingly more attention throughout courts nationwide. Recent court decisions confirm that legal rights to access information contained on social sites must be balanced with privacy rights under contracts, common law rights, statutes and the Constitution. Courts are commonly compelling discovery obtained from social media websites. The federal government now trains its investigators to collect information from social networking sites for litigation records, which provides a valuable source of information targeting potential witnesses and identifies legal issues the investigators can utilize for gathering information relative to a specific litigation issue. Information obtained can reveal previously undisclosed communications, motives, relationships, location information, alibis, or even the existence of a crime. Interestingly, a recent Massachusetts Appeals Court decision is calling on judges to give strict instructions to jurors to refrain from discussing any portion of a case via modes of social media. In today's technology-driven world, it's not uncommon for a juror to post details of a court case on Facebook or Twitter, which could ultimately lead to a mistrial. Commonwealth v. Werner, 81 Mass. App. Ct. 689 (Mass. App. Ct. 2012).

That said, please consider the following “words of wisdom” as a means of avoiding potential breaches in ethical rules, unintentionally disqualifying yourself or your firm, or breaching the attorney/client privilege. Every lawyer in the equipment leasing industry should keep a record of the content and changes to his/her professional profiles and of all promotional communications distributed throughout social media. Further, the use of effective disclaimers in all written communications with current and prospective clients through social media websites is critical to avoiding liability, the possibility of being disqualified, as well as the possibility of breaching an attorney/client privilege, that you may not know existed in the first place. Since social media may not permit full control of the content being distributed, the risk of unintended conflicts increases, and an effective disclaimer can easily solve this problem. For example, automatic reply features should be used and offered on all social media sites. This permits the attorney to send a standard reply message (i.e., LinkedIn “Contact Settings”). In addition to an effective disclaimer present in all online interactions, the need for a privacy statement or privacy policy posted on the lawyer's website, as an automatic response to e-mails, and in any online interactions, is critical to avoid the unavoidable looming issue of privacy law, as it relates to litigation.

Conclusion

The world of social media is a new-age phenomenon playing a critical part in the life of a lawyer, particularly lawyers practicing in the field of equipment leasing. It is important to be sure you are complying with all ethical rules and not engaging in social media behavior that can cause a potential risk to your practice of law. Don't fret, the use of social media is a beneficial component to one's legal practice and can surely allow for the potential of obtaining new clients and growing your law practice. Just be sure you are properly using the remarkable development that we call social media!

Lewis J. Cohn heads Cohn & Dussi LLC's equipment leasing and bankruptcy departments and is a member of the firm's creditor's rights and bankruptcy department. His focus is in the representation of equipment lessors, lenders and banks in leasing transactions, asset-based transactions and cash flow transactions. Mollie S. Bisesi is a member of the firm's creditors' rights and bankruptcy department. She concentrates her practice in commercial law, representing lending institutions, commercial banks, equipment lessors and unsecured creditors in civil and bankruptcy proceedings. They may be reached at [email protected] and [email protected].

The use of social media is growing rapidly throughout the legal industry, and its continual effects upon the legal community are constantly evolving and influencing the daily practice of law. Lawyers in the equipment leasing field are increasingly engaging in the use of social media as a means of marketing, branding, advertising and soliciting. The litigation process and attorney-client relationships are consistently affected by the use of social media. Lawyers are also utilizing social media tools when making hiring decisions, obtaining information on an opposing counsel or opposing party, as well as using social media sites to enable new forms of commerce and communication between other members of the legal community.

The expansive and ever-growing list of social media tools, including Facebook, Twitter, LinkedIn, legal blogs, and the like, are thrusting their way into the daily practice of lawyers nationwide. Take one shocking statistic as an example: Currently, more than 17,500 registered users of LinkedIn identify themselves as an Attorney in the Greater Boston Area. This only takes into account people who use LinkedIn, who have already been admitted to the Bar in Massachusetts, and who reside or practice in this geographical area. So imagine how many additional thousands of people who are awaiting Bar results or live and/or practice outside the Greater Boston Area. Now imagine this statistic as it relates to your geographical area. Imagine this statistic on a national scale.

Thus, it's clear that the use of social media tools is expansive, including in the equipment leasing industry. This article guides lawyers in the equipment leasing industry through some of the prevailing legal implications of using social media: “Must-Know and Beware Of's,” rules for lawyers to abide by, several key pieces of advice, and recent developments throughout the country on the issue of a lawyer's use of social media.

Why Use Social Media: Pros And Cons

Utilizing social media tools offers endless opportunities for lawyers to network themselves, network their practice, and engage in varying degrees of advertising, branding, marketing and soliciting as a means of “getting their name out there.” Due to the vast growth and enormity of the social media world, utilizing these tools is a guaranteed mechanism of reaching a broad audience. Social media provides effective means for reaching prospective clients, allows for constant communication with current clients, and provides means for giving back to the legal industry in the form of blogs, online chats and online groups to discuss an array of topics. Such topics may include advice, knowledge, intricacies of specific laws as they range from state to state, and the like.

While social media offers the above-mentioned benefits, those same benefits can quickly take a turn for the worse. A major downfall with utilizing social media is that the world of social media, as developed and sophisticated as it can be, does not provide a means for determining the accuracy of the content distributed throughout the channels of social media and control over what information is accessible to recipients. This leads to a disturbing amount of fraudulent responses and scams. A plethora of false advertising, inaccuracy in the content of information, inaccurate advice provided on online blogs or chats, or improperly quoting or citing applicable laws and rules can exist on any given website. Lawyers in the field of equipment leasing, as well as all practicing lawyers, should make sure to not only fully and accurately represent themselves and their practices, but should also embark on a journey of due diligence and ensure they are relying on true and accurate information, as opposed to walking straight into a scam.

Ethical Issues

It is essential to abide by rules of professional ethics that may vary from state to state, as they pertain to the use of social media. It is equally as important to recognize the legal implications arising from breaching these rules of professional ethics. We highly recommend researching and studying the rules of professional ethics in your state or any state in which you practice. While issues concerning advertising, copyright and infringement, false and/or misleading information and solicitation barely touch upon all the ethical concerns currently squirming their way through the use of social media, they are areas of major concern and enforcement that need to be discussed.

One highly coveted area of increasing importance relates to advertising through the various channels of social media. When describing yourself and your legal practice on your website, LinkedIn profile, Facebook page, or on any other social media website, it is easy to boast your own experience or talent, and show worldly levels of experience and success. But be careful of what you say and how you say it! Make sure every word contained on every social media page is 100% accurate and cannot be interpreted in any misleading manner. False and/or misleading advertising carries strict legal consequences.

Additionally, each lawyer should be the true originator of all information posted on any social media website about himself/herself or his/her law practice. Infringement and copyrighting are two areas of increasing scrutiny in the legal community, especially as they relate to the use of social media. Be careful to not use someone else's information, content, symbols, etc. Engaging in infringement or copyrighting is considered a “strict liability tort” and carries significant legal implications. The lack of knowledge (i.e., that the information belongs to someone else) is not a defense. If you are unsure as to whether the content you are about to post is original, embark on your own journey of due diligence again and see if any other information, symbols or the like exist out there in the world of social media. This is particularly relevant to the area of equipment leasing, as this field, in addition to the lawyers practicing within this focused area of the law, is quickly expanding and the use of social media tools is viewed as a reliable means to grow the industry of equipment leasing.

As a means of grasping the potential issues currently looming out there in this world of social media as it relates to content posted by lawyers, the American Bar Association Ethics 20/20 Committee is currently in the process of examining the need to provide formal guidance, recommendations and/or changes to the ABA Model Rules of Professional Conduct addressing lawyers' use of social media as a client development tool.

The following rules are mere examples of some of the many relevant rules to be considered before placing information on social media websites and relying on information obtained from social media websites:

Rule 7.1 of the ABA Model Rules of Professional Conduct, titled Communications Concerning a Lawyer's Services: A lawyer shall not make a false or misleading communication about the lawyer and/or the lawyer's services. “False or misleading” is defined as omitting a fact necessary to make the statement, when considered as a whole, not materially misleading. For example, comparing the lawyer's services with another lawyer's services as a means of creating unjustified expectations about the results the lawyer can achieve is considered suspect and subject to strict scrutiny in the world of legal professional ethics. The lawyer placing information on any social media website is responsible for ensuring the content of the social media sites is accurate and comports with Rule 7.1 and for deleting any misleading or untrue content.

Rule 7.2 of the ABA Model Rules of Professional Conduct, titled Advertising, governs the issue of advertising through the use of social media. Until authority states otherwise, and to play it safe, all lawyers should consider the information they disseminate through social media as “advertising.” While lawyers can certainly make an argument that they are participating in social media for reasons unrelated to advertising, it can be difficult to distinguish between content that can be considered advertising and content that is not meant for the purposes of advertising. Bar associations' ethics committees in Arizona, Alabama, Illinois and Texas have recently issued statements indicating interpretive comments contained on social media sites, where the information is available to the public at large, are considered advertisements and they must be filed with the bar, “unless access is limited to existing clients and personal friends.” Steven W. Kasten, “The Profession: Professional Ethics and Social Media,” Boston Bar Journal, Summer, 2011.

Rule 7.3 of the ABA Model Rules of Professional Conduct, titled Direct Contact with Prospective Clients, governs the issue of solicitation, as it pertains to the use of social media. Specifically, Rule 7.3 states, in relevant part, that all solicitations that are “in person or by personal communication” (which includes communication by an electronic device) are prohibited. Further, Rule 7.3 requires written solicitations of prospective clients be retained for two years. Comments contained in this rule waiver on the issue of whether chat rooms, newsgroups or electronic bulletin boards constitute permissible written solicitation or even may be considered “in-person” solicitation. A lawyer who is posting general commentary about a legal issue online and who invites prospective clients to access the discussion, is generally not viewed as soliciting, as long as the lawyer's comments are not accompanied by any recommendation or invitation to retain that lawyer. As a means of “controlling” the issue of solicitation, a lawyer is not permitted to pay anything of value for a recommendation posted on one's LinkedIn profile or for others publishing testimonials on personal websites. We advise you to seek out your state's rules and opinions on this issue.

Again, we cannot emphasize en-ough: Be careful with what information you are publishing for the world to see and what information you are receiving! The growing use of social media in the equipment leasing industry must be productive and, in order for the use of social media to be productive, lawyers in this industry must abide by the Rules of Professional Conduct.

Publicly Transferred Information and Litigation

Lawyers are increasingly subject to disciplinary review for improperly publicizing cases, criticizing judges and their decisions, and divulging attorney'client-privileged information. Social media interactions place risks on the lawyer of being disqualified from a case based on communication with unintended recipients or the transfer of improper information with an intended recipient. For example, receiving confidential information in an unsolicited e-mail transmitted through the lawyer's website does trigger the duty of confidentiality that may disqualify the lawyer and/or one's firm from representing its clients with adverse interests, absent an effective disclaimer. Social sites that are of a public nature (i.e., an open chat room) are unlikely to give rise to the duty of confidentiality, but this rule is not set in stone.

Additionally, privacy law is playing a larger role in the legal community, and privacy on the Internet is gaining increasingly more attention throughout courts nationwide. Recent court decisions confirm that legal rights to access information contained on social sites must be balanced with privacy rights under contracts, common law rights, statutes and the Constitution. Courts are commonly compelling discovery obtained from social media websites. The federal government now trains its investigators to collect information from social networking sites for litigation records, which provides a valuable source of information targeting potential witnesses and identifies legal issues the investigators can utilize for gathering information relative to a specific litigation issue. Information obtained can reveal previously undisclosed communications, motives, relationships, location information, alibis, or even the existence of a crime. Interestingly, a recent Massachusetts Appeals Court decision is calling on judges to give strict instructions to jurors to refrain from discussing any portion of a case via modes of social media. In today's technology-driven world, it's not uncommon for a juror to post details of a court case on Facebook or Twitter, which could ultimately lead to a mistrial. Commonwealth v. Werner , 81 Mass. App. Ct. 689 (Mass. App. Ct. 2012).

That said, please consider the following “words of wisdom” as a means of avoiding potential breaches in ethical rules, unintentionally disqualifying yourself or your firm, or breaching the attorney/client privilege. Every lawyer in the equipment leasing industry should keep a record of the content and changes to his/her professional profiles and of all promotional communications distributed throughout social media. Further, the use of effective disclaimers in all written communications with current and prospective clients through social media websites is critical to avoiding liability, the possibility of being disqualified, as well as the possibility of breaching an attorney/client privilege, that you may not know existed in the first place. Since social media may not permit full control of the content being distributed, the risk of unintended conflicts increases, and an effective disclaimer can easily solve this problem. For example, automatic reply features should be used and offered on all social media sites. This permits the attorney to send a standard reply message (i.e., LinkedIn “Contact Settings”). In addition to an effective disclaimer present in all online interactions, the need for a privacy statement or privacy policy posted on the lawyer's website, as an automatic response to e-mails, and in any online interactions, is critical to avoid the unavoidable looming issue of privacy law, as it relates to litigation.

Conclusion

The world of social media is a new-age phenomenon playing a critical part in the life of a lawyer, particularly lawyers practicing in the field of equipment leasing. It is important to be sure you are complying with all ethical rules and not engaging in social media behavior that can cause a potential risk to your practice of law. Don't fret, the use of social media is a beneficial component to one's legal practice and can surely allow for the potential of obtaining new clients and growing your law practice. Just be sure you are properly using the remarkable development that we call social media!

Lewis J. Cohn heads Cohn & Dussi LLC's equipment leasing and bankruptcy departments and is a member of the firm's creditor's rights and bankruptcy department. His focus is in the representation of equipment lessors, lenders and banks in leasing transactions, asset-based transactions and cash flow transactions. Mollie S. Bisesi is a member of the firm's creditors' rights and bankruptcy department. She concentrates her practice in commercial law, representing lending institutions, commercial banks, equipment lessors and unsecured creditors in civil and bankruptcy proceedings. They may be reached at [email protected] and [email protected].