Law firms are facing new ethical and legal challenges involving cybersecurity and oversharing in their employees’ use of social media-Twitter, Instagram, Facebook, and others that are an inescapable part of personal and professional lives.
To protect themselves and their clients, firms are instituting policies to ensure client confidentiality and proper representation by employees, even in their personal use of the platforms.
“The most common concern is making sure that personal social media accounts remain personal, and don’t appear to bear the imprimatur of the firm,” Jacob Rooksby, who is to become dean of Gonzaga University School of Law in Spokane, Wash., on June 1, told Bloomberg Tax. “Everyone must realize that postings to ‘public’ accounts can reflect on the firm and its clients, even when profile pages indicate ‘all views are my own; retweets do not imply endorsement.’”
Social media offers opportunities to access a global audience, Kelly Phillips Erb, a tax attorney and senior editor at Forbes Media LLC, said.
“When it comes to law firms, image and reputation matter,” said Erb, who as @taxgirl is a popular online commentator on all things tax-related."If you’re not careful, one bad tweet/post/photo can define you.”
She said many states have specific ethical rules for lawyers using social media that many aren’t aware of. It is important that a firm set expectations to protect its brand and its clients’ privacy. “There are mounting instances of attorney and judge ethical violations involving social media use,” Rooksby said. “Some state bar groups have promulgated advisory ‘rules’ and best practices that should be heeded. A single lapse in judgment can have devastating consequences. Before every post, an attorney should ask, “Is this information I would feel comfortable announcing publicly at a bar-related event?”
South Carolina, for example, prohibits lawyers from participating on websites where non-lawyer users post legal questions and attorneys who answer them are described as “experts.” Similarly, New York bars lawyers from listing their practice areas under the heading “specialties” on social media sites unless they are actually certified as specialists.
While social media might be great for sharing some things, any sharing of confidential information poses a very real threat to law firms.
“The problem is that both attorneys and non-attorneys alike are so accustomed to sharing information via social media, from the inane (what I had for lunch today) to the personal ('my divorce finally came through today!') to matters relating to firm business ('settled big case today'),” said Michael E. McCabe Jr., the founder of McCabe Law LLC in Potomac, Md.,.
While the ethical duties of client confidentiality may seem like common sense for the attorney-client relationship, practitioners say it is important that a policy is in place forbidding disclosure of a client’s confidential information.
“The ethical duties of client confidentiality and client loyalty are so fundamental to the attorney-client relationship, and yet with the ease of access and sharing of information via Facebook, LinkedIn, Twitter, or on firm-sponsored sites such as blogs and websites, it is important for attorneys to stop and think before they post.” Mayer Brown LLP has implemented social media policies to address such concerns. Marcia Goodman, a partner at the firm’s Chicago office, said employees should always be mindful “not to post or view material that infringes the intellectual property rights of a third party.”
“We want to ensure our clients know that we are not just mindful of their confidences, but that we ensure that we have reasonable protections in place to avoid violating their secrets,” McCabe said. “We have an ethical duty of technical competency, and that can be interpreted to include using modern hardware and software solutions to protect the firm’s valuable secrets.”
Reasonable protections for transmitting or storing confidential information can include avoiding public WiFi hot spots, encrypting information, using firewalls, and having strong passwords.
Firms have an obligation to set clear boundaries and guidance about private use of social media for their employees, McCabe said. While a firm shouldn’t micromanage its work force, employees should be aware that they represent the firm all the time.
“The policies should govern all firm employees, from the managing partner down to the lowest entry-level clerk,” McCabe said. While attorneys might know about their ethical obligations regarding client confidentiality, other firm employees might think that ethical duties don’t apply to them.
It is important to ensure that everyone knows what the ground rules and expectations are if they wish to remain gainfully employed, and a firm should want the power to terminate an employee who violates the social media policy. Expectations need to be outlined and explained to everyone, Erb said.
First Amendment Issue
Many employees, particularly non-attorneys within a firm, may argue that social media policies would infringe on their First Amendment rights, but tax professionals say the First Amendment may not apply in some cases.
“Private law firms are free to enact policies that may limit the First Amendment rights of their employees, attorney and non-attorney alike,” Rooksby said.
This is because “attorneys hold privileged positions in society,” and law firms’ obligations are to the clients, Rooksby said, adding that the more “private” an account’s setting is, the fewer concerns a law firm should have about content.
“Some people may believe they have a First Amendment right to post anything they want. Maybe so when it comes to the government control of speech, but law firms are private employers, and nearly all attorneys and non-attorneys are at will,” McCabe said, referring to voluntary employment subject to termination with or without cause or notice. “So it is very important that non-lawyers are covered under any social media policy,” he said.
Goodman said that employees should make disclaimers indicating that they aren’t speaking for their firm, client, or other entity. She also advises employees “not to make statements that could be construed as legal advice or as creating an attorney-client relationship on social media.”
“Deleting a post/tweet/photo is possible, but that doesn’t mean that it’s gone forever,” said Erb. “If you worry that it will show up in a deposition one day-don’t share.”
A recent example of oversharing by a lawyer appeared in a situation involving attorney Lina Franco, who had requested an extension of a missed filing deadline, claiming she had a family emergency in Mexico City. However, Franco’s Instagram posts revealed she was actually in New York City. U.S. Magistrate Judge Michael Hammer penalized Franco for the incident, according to the ABA Journal.
The consequences can go beyond getting fired. “Lawyers who run their mouths on social media and reveal client confidential information can find themselves on the receiving end of a bar grievance,” McCabe said.
Intellectual property attorneys agree that law firms should have a written policy to govern their employees’ use of social media. But there is no one-size-fits-all policy, McCabe said.
Scott L. Malouf, a social media lawyer in Rochester, N.Y., who helps other attorneys use social media evidence in discovery and litigation and helps organizations use social media to meet business and compliance goals, offered the following suggestions:
* First, don’t view the policy as set it and forget it. Social media is too dynamic-platform services, user culture, and relevant legal requirements change quickly. A policy, ideally, should evolve in response.
* Second, don’t aim for perfection. Addressing “every” social media scenario is a Sisyphean task-users, communities, laws, ethical guidance, user goals, and platforms are just too varied. A better approach may be to create a shorter, user-friendly policy and support it with solid training and concrete examples.
* Third, remember the positive aspects of social media. Risk reduction, legal and ethical compliance, and creating clear expectations often drive social media policies-yet a policy shouldn’t undermine the benefits of social media. For example, many law firms are now podcasting. But you can’t just post an episode and hope people find it. You have to promote it in multiple ways and be open to listeners’ responses. Your social media policy shouldn’t eliminate or severely hamper these practices.