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Walking the Line: Lawyers, Social Media, and Ethics

Navigating ethical gray areas in social media

Lawyers are held to a higher standard on social media – even on their personal accounts. With every action you take, you are representing yourself, your law firm, and the legal profession as a whole.

The Rules of Professional Conduct for Attorneys (SCR Chapter 20) are the Wisconsin lawyer’s bible for social media conduct. However, the line between acceptable and unacceptable social media use can be narrow in places.

With our long history of helping law firms with their IT, we often get asked to guide lawyers through changing tech like social media.

Social Media Insights and Ethics for Lawyers whitepaper

Our new whitepaper “Social Media Insights and Ethics for Lawyers” answers many common questions we receive, including:

  • How do I avoid making unethical social media posts?
  • Can I look at a candidate’s social media profiles before hiring them?
  • Should my firm advertise on social media?
  • Can I monitor the personal social media accounts of my current employees?

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In addition, here are a few tips for lawyers on staying professional and ethical on social media.

Don’t vent your spleen on social media – ever

A Kansas court of appeals research attorney was fired and subject to bar discipline when she tweeted insulting comments about a former Kansas attorney general during his own disciplinary hearing. She called the former attorney general a “naughty, naughty boy,” criticized his facial expressions, and even called him derogatory names. She later apologized: “I didn’t stop to think that in addition to communicating with a few of my friends on Twitter I was also communicating with the public at large.”

Wise words for all lawyers to keep in mind. Social media is not the right place to air your grievances and frustrations.

An “anonymous” username won’t protect you

A former assistant U.S. attorney was disbarred by the Louisiana Supreme Court for making improper comments online using anonymous usernames.

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From 2007 to 2012, the lawyer posted numerous comments on nola.com, including statements about pending criminal cases to which he and other prosecutors were assigned. He used at least five online identities, including: ‘dramatis personae’ and ‘fed up.’ This lawyer felt that posting his highly opinionated comments was a “public service.”

The Louisiana Disciplinary Board recommended that the lawyer be found guilty of the Bar Rule violations and disbarred. In addition, the judge presiding over the cases the lawyer commented on reversed the criminal convictions against the affected defendants and ordered new trials.

The lesson? You’re never truly anonymous on the internet. Always assume any online comments you make can be attributed to you. And never try to hide behind a false persona.

“A lawyer’s ethical obligations are not diminished by the mask of anonymity provided by the internet.”

– Louisiana Supreme Court opinion Supreme Court of Louisiana v. In Re: Salvador R. Perricone, NO. 2018-B-1233 (12/5/18)

Don’t communicate with a represented party via social media

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An assistant prosecutor in Ohio was fired after he pretended on Facebook to be the fictional “baby mama” of a murder defendant. He did so to try to persuade two alibi witnesses for the defense not to testify. When the deception was discovered, the case was handed over to the Ohio Attorney General. The prosecutor was accused of disgracing his office, creating false evidence, and lying to witnesses.

Rules prohibiting communicating with a represented party include any communication on social media platforms.

Consider how your post could be perceived

Posting on social media is so easy and quick. Type in a few words and hit “post.” Done. As a lawyer, take a step back before you post anything and think about “the eye of the beholder.” How might your post be perceived by clients? Opposing counsel? The Judge? The Public?

A Pittsburgh-area assistant prosecutor learned this lesson the hard way when she posted a photo on her Facebook page. The photo was captioned “You should take the plea” and showed her holding a 12-gauge shotgun with an evidence tag alongside a uniformed police officer with an assault rifle (also evidence in the case). She thought it would be funny. But no one else did. Her superiors issued a statement saying her conduct was “contrary to office protocol with respect to the handling of evidence.”

The key takeaway: if in doubt, don’t post. Also, don’t assume everyone has the same sense of humor that you do.

Don’t grandstand

Channel Vince Lombardi: if you make it to the endzone, act like you’ve been there before. Winning a big case is an awesome feeling, but be careful what you share on social media.

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A Wisconsin criminal defense attorney should have kept this in mind. Following the acquittal of his client on homicide charges, the attorney was so thrilled that he took a “victory selfie” with his client in the courtroom and posted it on Facebook. The presiding judge was not amused and called the attorney back to court to explain himself. The attorney apologized and took down the post.

Treat social media just like other communications

Lawyers know to be cautious in traditional forms of communications like letters, emails, or court paperwork. Apply that same caution to social media. In fact, you should probably be even more careful what you say considering that online posts are permanent and can reach practically an unlimited audience. Make sure you know understand how the social media sites you use function, including their privacy protocols.

“If you wouldn’t express it in a phone call, a letter, or a pleading filed with the court, don’t share it with the world on social media.”

– Attorney John G. Browning

The internet is full of stories of lawyers making mistakes on social media. Learning from their missteps can help keep you from making one of your own.

Find more guidance in our whitepaper: “Social Media Insights and Ethics for Lawyers.”

Additional Resources

Ethics: Rules for Marketing with Social MediaState Bar of Wisconsin

Hazards of Social Media ActivityState Bar of Wisconsin

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