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Is all use of social media subject to legal ethics rules?

Social media legal ethicsOn the heels on Tom Watson’s article on the perils of social media for lawyers (blogged about yesterday) I was reminded of Attorney Josh King’s presentation last week on legal ethics and social media at Avvocating 2012.

King, General Counsel for Avvo, explained to lawyers from around the country that social media was not as fraught with the ethical pitfalls as some may believe. King, taking a reasoned approach to what blogging/social media/social networking really is, also pointed out that much of a lawyer’s use of social media and social networking may not be subject to legal ethics rules.

Watson, a Senior Vice President at Wisconsin Lawyers Mutual Insurance Company and has taken a strong positon in his article and in comments following my post on his article that lawyers need to be warned of the pitfalls of using social media. His point, as I understand it, is that lawyers ought not act unethically or engage in activities online that woud give rise to unintended liability, ie, create an attorney client relationship or give specific legal advice.

I’m all for lawyers not acting unethically or acting in a fashion that will give rise to a malpractice claims while blogging or engaging in other social media/networking.

I’ve written about over the last eight years, led a social network for lawyers and the public for (later LexisNexis’, and led AOL’s online community in the 90’s (social media/social networking before we called it that) while a practicing lawyer. I now head the largest social media network for lawyers in LexBlog with over 8,000 lawyers blogging and using other forms of social media.

I’m not aware of any ethical complaint or malpractice claim against the 10’s of thousands of lawyers engaged in the online communities and networks I have been apart of over the last 17 years. 17 years.

Though I don’t want to cheerlead a lawyer into a lawsuit with a state supreme court or state bar association, I’m not even sure that much of the activity which Watson and others warn lawyers of when it comes to social media is governed by legal ethics rules.

Legal ethics rules, as I understand the Bates decision, are a restriction on free speech that is allowed because the U.S. Supreme Court held that lawyer advertising is commercial speech.

But is all of use of blogging, social media and social networking advertising so as to be commercial speech so as to be subject to legal ethics rules?

Is appellate Attorney Kirk Jenkins writing at Appellate Strategist advertising? How about his use of Twitter, which he describes as perhaps the best means to stay abreast of legal developments? I don’t think Sedgwick, an international litigation and business law firm, has been big on advertising over the years. I can’t imagine Jenkins has built his strong reputation with the leading appellate lawyers and the judiciary because he advertises on the Internet.

Is fashion attorney Staci Riordan, perhaps the fastest woman associate to make equity partner at Fox Rothschild, a century old national law firm, advertising with her heavy use of Facebook and Twitter?

Riordan, like many shrewd lawyers who truly understand relationships and reputation aren’t built by having separate online identities, uses Twitter and Facebook to network and engage with business leaders, other lawyers, civic leaders, and friends. Riordan knows networking to nurture relationships and establish trust with others so as to build a strong word of mouth reputation is the stuff life is made of for lawyers looking to grow their business and become better lawyers.

Is Riordan’s activity on Twitter and Facebook advertising? How about her Fashion Law Blog?

I’d advise lawyers who are blogging and using other social media to abide by legal ethics pertaining to advertising or any other matter. It’s common sense and it’s not that hard.

But social media, social networking, and blogging by lawyers, for those who have not tried it, is just the same stuff lawyers have done for over a hundred years. It’s not all advertising. It doesn’t have to be crass marketing.

I challenge well intentioned lawyers such as Tom Watson, who are prone to warn of the perils of blogging, Twitter, LinkedIn, Facebook, and other social media to get out there and try these things. Their views may change through education gained through experience. They may realize that a lawyer’s effective use of the Internet is a conversation building trust – not an advertisement.

Heck Tom, I’d be happy to talk with you about you and WILMIC (Wisconsin Lawyers Mutual Insurance Company) blogging and using social media with LexBlog and LXBN. Maybe we do it on the house? Our strategic counsel, advise, coaching, and network (empowering engagement with leading lawyers around the world) has proven to be a safe and proven environment for solo’s to 70% of the 200 largest law firm blogs.

King spoke with LXBN’s Colin O’Keefe immediately following his presentation. Here’s a bit of what King spoke on at Avvocating. Seems to me to be a more reasoned discussion on ethics and liability as it pertains to a lawyer’s use of social media than spreading fear of the unknown