When it comes to taming that rampaging beast known as social media, the brave souls on the State Bar’s ethics committee don’t stand a chance.
They are doomed to forever play catch-up.
That is because technology evolves at light speed while the law moves at a more deliberate – i.e. snail-like – pace.
This is not a bad thing. After all, we don’t want ethics rulings that are frantic, rushed or half-baked.
But it means that by the time the State Bar receives an ethics inquiry, researches it, discusses it in committee, solicits public comments and eventually approves a Formal Ethics Opinion, the social media landscape has most likely shifted. The original beast may well have vanished over the horizon. New and different beasts have taken its place.
The past year alone has seen the rapid rise of Snapchat, Instagram and Pinterest. Twitter has exploded. Tinder and Secret are soaring.
It’s hard enough just to keep up with Facebook and LinkedIn. Now add in a dozen new apps, and more on the way. And contemplate the fact that a single post or photo on any one of them can make or break your client’s case – not to mention your own career.
It’s enough to make you want to turn in your law license and try something new – perhaps software development.
2014 Formal Ethics Opinion 5
Consider one recent State Bar ethics ruling.
2014 FEO 5, approved in July, says: “[A] lawyer must advise a client about information on social media if information and postings on social media are relevant and material to the client’s representation. The lawyer may advise a client to remove information on social media if not spoliation or otherwise illegal.”
Simple enough, right? Lots of familiar words: relevant, material, representation, illegal.
But just keep reading. “[C]ompetent representation includes knowledge of social media and an understanding of how it will impact the client’s case, including the client’s credibility.”
Exactly what level of social media “knowledge” and “understanding” are required? Is a litigator who knows nothing about LinkedIn incompetent per se? How many CLEs will it take to get up to speed?
2014 FEO 5 continues: “If a client’s postings on social media might impact the client’s legal matter, the lawyer must advise the client of the legal ramifications of existing postings, future postings, and third party comments. Advice should be given before and after the lawsuit is filed.”
Whoa. Future postings? Third party comments? Might impact? Please loan me your crystal ball so I can ascertain how a hypothetical Vine clip that doesn’t yet exist might impact my client’s case.
And we haven’t even gotten to spoilation, privacy settings and memory sticks.
Risk Management Nightmares
- Does your Client Intake form ask new clients to disclose all their social media accounts?
- Do you get the passwords to these accounts?
- Where are these passwords stored?
- Who in your office is responsible for reviewing and monitoring your clients’ social media activity?
- Is it ethical for you to suggest changes to your clients’ online profiles?
- Is it unethical to advise your client to scrub their Facebook page clean?
- Is it malpractice if you overlook MeetMe or Flickr?
Of course, North Carolina is not alone in grappling with the ethics of social media. The New York State Bar Association has issued a fat volume of Social Media Ethics Guidelines. I defy you to read all 20 pages without your head exploding.
The ABA website has a “Social Media Resources for Bar Associations” page. Only one problem: some links on the page don’t work. And some of the sample social media policies – from South Carolina and Indiana, for example – date back to 2010. That’s the dark ages in technological terms.
I have sympathy for the ethics police. They are doing their best. But they are trying to hit a target that has moved – perhaps dramatically – in the few minutes it took you to read this post.
- North Carolina State Bar (2014 Formal Ethics Opinion 5) http://www.ncbar.gov/ethics/ethics.asp
- New York State Bar Association Guidelines https://www.nysba.org/Sections/Commercial_Federal_Litigation/Com_Fed_PDFs/Social_Media_Ethics_Guidelines.html
Jay Reeves a/k/a The Risk Man is an attorney licensed in North Carolina and South Carolina. Formerly he was Legal Editor at Lawyers Weekly and Risk Manager at Lawyers Mutual. Contact him at email@example.com.