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ABA Ethics, Social Media and You

As the American Bar Association redefines their ethics rules to keep pace with the evolution of online marketing, it is  critical for legal marketers to be as aware of best ethics practices as we are about best marketing practices.   Today, Law Technology News (LTN) published their “Top Ten Tips to Keep Social Networking In Line With ABA Ethics,” a must-read for any lawyer or legal marketer using social media sites for marketing purposes.

Why Ethics Matter

According to LTN, “Ethics and social media will be front and center at the American Bar Association’s annual meeting this month[.] The ABA’s House of Delegates — its governing body — will consider the recommendations of the ABA Commission on Ethics 20/20, which has proposed revisions to the Model Rules of Professional Conduct to address changes in technology. “

Top Tips

1.  New Media Doesn’t Necessarily Mean New Rules.  The ABA Commission on Ethics found that many of the rules that apply to printed or traditional marketing materials are also applicable to online marketing efforts.  Although 140 characters may seem less significant than a press release, the same ABA ethics rules may apply.  Work with attorneys to vet postings, status updates and other information before putting it in the public domain – regardless of the forum.

2.   Be Wary When Forming Relationships Online.  Sites such as LinkedIn offer attorneys the opportunity to interact with potential clients; however, many lawyers don’t take advantage of this functionality “for fear of forming an attorney-client relationship.”  According to the Commission and LTN, “a lawyer can participate in these forums but also disavow any ‘reasonable expectation’ by expressly using cautionary language and disclaimers in an answer.”  Their advice?  ”Keep your answers generic, avoid addressing highly specific facts, and expressly state that your answer should not be considered legal advice.”

3.  Mind Your Own Beeswax.  Confidentiality and trust are cornerstones of the attorney-client relationship.  The internet never forgets, so make sure that your lawyers don’t divulge client relationships or case details online.  Emphasize to your lawyers that each status update, tweet or blog post should take attorney-client privilege into account.  If you encounter resistance, steer the attorney toward more neutral topics that are still related to their practice,

4.  Stay In Your Own Backyard:  Robert J. Ambrogi, author of the LTN article, writes:  ”In my opinion, the current rules against unauthorized and multijurisdictional practice are archaic and senseless in today’s highly connected world. But they remain the rules. If you are admitted only in one state, you cannot give legal advice in another state.  To my knowledge, there has never been an ethics complaint against a lawyer for answering questions online in a Q&A forum or for participating in a discussion on Twitter or elsewhere online.  Even so, lawyers are well advised to refrain from giving fact-specific advice online — and to include disclaimers in any answers they provide to consumer questions. There is a big difference between educating about law and advising about law.

5.  Know What You’re Doing.  To paraphrase G.I. Joe, “knowing is (more than) half the battle.”  If your lawyers use social media for marketing purposes, make sure they understand their audience, the best uses and best practices for each site.  Help your attorneys understand the pros and cons of LinkedIn vs. Facebook, Twitter vs. a blog, etc.  so that they can use each appropriately and remain in compliance with the ethics rules for each.

Additional Reading

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