If You're Not on Facebook, You're Committing Malpractice

Counseling Clients on What to Post

Attorneys familiar with social media will know that many ' perhaps most ' of their consumer law clients use social media. And they will also know that the inherent informality of the medium leads many to post “throwaway” updates ' public messages that have the potential to be spun as showing a lack of remorse, a lack of seriousness, a lack of injuries. With this knowledge, attorneys can counsel their clients about the perception that such posts have outside of their natural context (say, when blown up as exhibits in a courtroom), and advise them to keep such larger-world perceptions in mind when posting to social media.

Given the ubiquitousness of social media, it's potentially malpractice to not ask your clients about their usage before they blithely post something that compromises their case. But if you are an attorney who has steered clear of this mode of communication, how will you even know to ask your client about it?

Technical competence in this area demands that attorneys get familiar with how the dominant social media platforms work ' as well as asking about, and getting up to speed with, any emerging or niche platforms if those are where your client communicates. This doesn't mean you've got to start posting selfies on Instagram or become a Pinterest addict. But it does mean having at least a couple of social media accounts, and being familiar with how they work.

Counseling Clients on Removing Existing Posts

Let's say you've just signed on a new personal injury client. Your client suffered a bad accident, dealt with numerous injuries, but now, several months on, she's feeling much better. An active Facebook user, her profile shows a stream of happy statuses, updates from trips, sporting activities and nights out with friends. She shows this to you, wondering aloud about whether her prolific Facebook activity will have any impact on her case. How do you proceed? Do you tell her to just delete all of that social media fluff?

Attorneys must understand the tension between ephemeral social media postings and the obligation to preserve evidence. This is an area where an oblivious client may have a regular habit of sending to the “memory hole” older updates or those thought better of in the light of day. Unless you probe on social media usage and provides some clear direction on the scope of the obligation to preserve evidence, there is a very real risk that the client will blithely keep doing what she's always done. But if you're not familiar with how social media works? You may not think to even ask the question, let alone provide competent guidance on how to navigate it while litigation is pending.

Social Media Misrepresentations

Some attorneys think they can just worry about social media when and if it becomes a live issue in a matter. But while social media tools are easy to learn to use, it takes time to become familiar with the conventions of use (something many lawyers still haven't mastered, if the number of spammy accounts and posts by lawyers on Twitter and Facebook are any measure).

Attorneys who rush on board when litigation is already underway amplify the risk that comes from first-time mistakes. It's one thing to mess up by sending marketing messages to your Facebook friends; it's quite another to “friend” jurors or misrepresent yourself to access information in private or limited accounts.

And what of “sock-puppetry,” the use of anonymous online identities to try and sway public opinion toward one's cause? As members of the U.S. Attorney's office recently found out in the high-profile Danziger Bridge case (involving police shootings following Hurricane Katrina), online anonymity can be easily pierced, and the consequences can be a mistrial and potentially bar discipline.

Understanding Discovery Opportunities ' And Limitations

While not using social media increases the risks associated with trying to hurriedly get up to speed, it also presents a double-edged opportunity cost. Regular users of Twitter and Facebook understand just how much information sometimes gets shared, and those who follow social media a bit closer (or have teenagers in the house) are familiar with the conventions of emerging social media platforms like Instagram, Pinterest, Snapchat and others. Without visibility into this communications ecosystem, an attorney trying to investigate or conduct discovery is missing what can be a particularly rich vein of information.

But by the same token, attorneys familiar with these channels (and their use in litigation) understand what is and is not accessible via discovery. Attorneys who are learning about social media for the first time in litigation risk wasting client resources on fruitless motions for discovery into social media passwords or the contents of private communications sent through social media.

Misusing Social Media

Another issue with jumping into social media for the first time during litigation is the potential to misspeak. This risk is always present when an attorney starts using social media, but the stakes are higher ' and the consequences more serious ' if the impetus for communicating is a matter that is being actively litigated.

There are two fundamental areas of concern: revealing client confidences and communicating in a way that interferes with the administration of justice. Using social media channels to talk about an active matter has the potential to implicate both. This can easily happen inadvertently, simply through lack of facility with the medium. The line between “public” and “private” communication via social media is often hard to see for first-time users, and the infectiousness and informality of the platforms invites abundant sharing. Far better that these tlessons be learned on less consequential matters than those impacting clients or ongoing litigation.

As social media usage grows ' and it is growing very fast ' attorneys can increasingly count on having social media-related issues crop up in both litigation and counseling situations. There is a growing recognition that familiarity with technology is an integral part of a lawyer's obligation of competence. It's no longer OK to be a Luddite. Last year, the ABA added a comment to Model Rule 1.1 to this effect. See , http://bit.ly/1yNx6o9. The country's largest bar, California, has a similar opinion at the public comment stage. And the New York County Lawyers Association released an ethics opinion last year specific to social media, noting where counseling practices can create ethics issues. See , NYCLA Ethics Opinion 745 (July 2, 2013) (http://bit.ly/1tXfial).

Ultimately, providing competent guidance on social media usage requires not only a good moral compass but also a working understanding of the conventions, sharing protocols, and interfaces of the platforms involved. To accomplish that, there's just no substitute for diving in and using social media yourself.

Josh King is vice president and general counsel of Avvo.com, an online legal Q&A platform, directory and marketplace.

Imagine you're cross-examining a witness about a phone call, but you've never used a telephone before. Ridiculous, right? But is it any different than wading into a new client matter where social media communications are at issue without having ever used social media?

Social media has become a ubiquitous part of how people communicate today, and it is incumbent on attorneys to understand this new technology in order to know how clients and witnesses express themselves. Like it or not, the pace of technological change is accelerating. It's no longer OK to sit back and rely on the same communications modes that existed when the ink on your bar certificate was still wet. This is true not only to continue providing excellent client service; it's also necessary to avoid malpractice and stay on the right side of the ethics rules.

Here are just a few of the ways that attorneys not familiar with the basic technologies and norms of social media may run into trouble.

Counseling Clients on What to Post

Attorneys familiar with social media will know that many ' perhaps most ' of their consumer law clients use social media. And they will also know that the inherent informality of the medium leads many to post “throwaway” updates ' public messages that have the potential to be spun as showing a lack of remorse, a lack of seriousness, a lack of injuries. With this knowledge, attorneys can counsel their clients about the perception that such posts have outside of their natural context (say, when blown up as exhibits in a courtroom), and advise them to keep such larger-world perceptions in mind when posting to social media.

Given the ubiquitousness of social media, it's potentially malpractice to not ask your clients about their usage before they blithely post something that compromises their case. But if you are an attorney who has steered clear of this mode of communication, how will you even know to ask your client about it?

Technical competence in this area demands that attorneys get familiar with how the dominant social media platforms work ' as well as asking about, and getting up to speed with, any emerging or niche platforms if those are where your client communicates. This doesn't mean you've got to start posting selfies on Instagram or become a Pinterest addict. But it does mean having at least a couple of social media accounts, and being familiar with how they work.

Counseling Clients on Removing Existing Posts

Let's say you've just signed on a new personal injury client. Your client suffered a bad accident, dealt with numerous injuries, but now, several months on, she's feeling much better. An active Facebook user, her profile shows a stream of happy statuses, updates from trips, sporting activities and nights out with friends. She shows this to you, wondering aloud about whether her prolific Facebook activity will have any impact on her case. How do you proceed? Do you tell her to just delete all of that social media fluff?

Attorneys must understand the tension between ephemeral social media postings and the obligation to preserve evidence. This is an area where an oblivious client may have a regular habit of sending to the “memory hole” older updates or those thought better of in the light of day. Unless you probe on social media usage and provides some clear direction on the scope of the obligation to preserve evidence, there is a very real risk that the client will blithely keep doing what she's always done. But if you're not familiar with how social media works? You may not think to even ask the question, let alone provide competent guidance on how to navigate it while litigation is pending.

Social Media Misrepresentations

Some attorneys think they can just worry about social media when and if it becomes a live issue in a matter. But while social media tools are easy to learn to use, it takes time to become familiar with the conventions of use (something many lawyers still haven't mastered, if the number of spammy accounts and posts by lawyers on Twitter and Facebook are any measure).

Attorneys who rush on board when litigation is already underway amplify the risk that comes from first-time mistakes. It's one thing to mess up by sending marketing messages to your Facebook friends; it's quite another to “friend” jurors or misrepresent yourself to access information in private or limited accounts.

And what of “sock-puppetry,” the use of anonymous online identities to try and sway public opinion toward one's cause? As members of the U.S. Attorney's office recently found out in the high-profile Danziger Bridge case (involving police shootings following Hurricane Katrina), online anonymity can be easily pierced, and the consequences can be a mistrial and potentially bar discipline.

Understanding Discovery Opportunities ' And Limitations

While not using social media increases the risks associated with trying to hurriedly get up to speed, it also presents a double-edged opportunity cost. Regular users of Twitter and Facebook understand just how much information sometimes gets shared, and those who follow social media a bit closer (or have teenagers in the house) are familiar with the conventions of emerging social media platforms like Instagram, Pinterest, Snapchat and others. Without visibility into this communications ecosystem, an attorney trying to investigate or conduct discovery is missing what can be a particularly rich vein of information.

But by the same token, attorneys familiar with these channels (and their use in litigation) understand what is and is not accessible via discovery. Attorneys who are learning about social media for the first time in litigation risk wasting client resources on fruitless motions for discovery into social media passwords or the contents of private communications sent through social media.

Misusing Social Media

Another issue with jumping into social media for the first time during litigation is the potential to misspeak. This risk is always present when an attorney starts using social media, but the stakes are higher ' and the consequences more serious ' if the impetus for communicating is a matter that is being actively litigated.

There are two fundamental areas of concern: revealing client confidences and communicating in a way that interferes with the administration of justice. Using social media channels to talk about an active matter has the potential to implicate both. This can easily happen inadvertently, simply through lack of facility with the medium. The line between “public” and “private” communication via social media is often hard to see for first-time users, and the infectiousness and informality of the platforms invites abundant sharing. Far better that these tlessons be learned on less consequential matters than those impacting clients or ongoing litigation.

As social media usage grows ' and it is growing very fast ' attorneys can increasingly count on having social media-related issues crop up in both litigation and counseling situations. There is a growing recognition that familiarity with technology is an integral part of a lawyer's obligation of competence. It's no longer OK to be a Luddite. Last year, the ABA added a comment to Model Rule 1.1 to this effect. See , http://bit.ly/1yNx6o9. The country's largest bar, California, has a similar opinion at the public comment stage. And the New York County Lawyers Association released an ethics opinion last year specific to social media, noting where counseling practices can create ethics issues. See , NYCLA Ethics Opinion 745 (July 2, 2013) (http://bit.ly/1tXfial).

Ultimately, providing competent guidance on social media usage requires not only a good moral compass but also a working understanding of the conventions, sharing protocols, and interfaces of the platforms involved. To accomplish that, there's just no substitute for diving in and using social media yourself.

Josh King is vice president and general counsel of Avvo.com, an online legal Q&A platform, directory and marketplace.