Years ago, lawyers were skeptical about the value of social media for marketing and networking. Social media was a new, unproven tool, and many lawyers refused to participate. Over time, that changed, as social media permeated every aspect of our culture, changing the ways that we interacted and communicated, both personally and professionally.
Now, in 2018, social media is a part of our day-to-day lives, and lawyers are not immune from its reach. Attorneys regularly use social media for a variety of reasons, from marketing their law firms and professional networking with colleagues to using it as evidence in litigation.
Of course, online interaction isn’t without its limits. Lawyers have to behave ethically whenever they network or market their firms, whether online or off. Because online networking is a relatively new phenomenon, it’s no surprise that ethics committees across the country have weighed in on the many issues that arise when lawyers use social media platforms for professional reasons.
One of the most recent opinions was issued by the State Bar of Texas. In Opinion 673, the State Bar of Texas’ Professional Ethics Committee considered whether it is ethical for lawyers to use an online discussion forum to seek advice for the benefit of their clients from other lawyers outside of their firm. The Committee concluded that while it was permissible, there were limitations, and provided some useful guidance to help lawyers ethically interact online with colleagues. Here are 3 of the tops tips from that opinion.
Carefully frame your inquiry
The Committee first acknowledged that it’s not unusual for lawyers to seek advice from their colleagues, both online and off, explaining that “(i)nformal consultations may occur in a variety of situations, such as when a lawyer poses questions to a speaker at a CLE seminar, when a lawyer seeks advice from members of an online discussion group, or when a lawyer solicits the insight of a trusted mentor.”
However, the Committee emphasized that regardless of where the consultations occur, lawyers must fully understand their ethical obligations, including the duty of client confidentiality. For that reason, lawyers must take care to avoid unnecessarily sharing confidential information.
Fortunately, there are many situations where this is easily accomplished, and lawyers can often obtain useful assistance from their online connections without disclosing any confidential case-related information. For example, lawyers can ask “general questions about a particular statute, rule or legal procedure” and obtain helpful feedback without disclosing anything of a confidential nature.
Whenever possible, limit your inquiry to abstract issues
Of course, that’s not always the case, and on occasion, lawyers will need to share some case-related information in order to provide relevant context to their inquiry. The Committee explained that in those cases, an attorney may “consider it necessary to provide a certain amount of factual context in order to frame the issue and obtain useful feedback.”
When that situation arises, it’s important to exercise care when framing your question. Avoid disclosing unnecessary information and be very particular about the information that you do share. According to the Committee, one of the best ways to accomplish this and walk the fine line that avoids the impermissible sharing of client confidences is to limit the “consultation to general or abstract inquiries that do not disclose confidential information relating to the representation.”
Alternatively, limit the information you share
In some cases, questions based on abstract concepts will be insufficient. This is because in order to sufficiently analyze and address some issues, your colleagues will require specific information that is unique to your client’s matter.
In those cases, you can still ethically provide hypothetical factual scenarios for consideration by your colleagues. As the Committee explained, it’s permissible to “reveal a limited amount unprivileged client information in a lawyer-to-lawyer consultation, without the client’s express consent, when and to the extent that the inquiring lawyer reasonably believes that the revelation will benefit the inquiring lawyer’s client in the subject of the representation.” But when doing so, you must take care to provide “a hypothetical that does not identify the client,” and must avoid providing any information from which is would be “reasonably foreseeable that the disclosure of the information (would) harm, prejudice or embarrass the client.”
In other words, ethically consulting with colleagues online isn’t as difficult as you might think. Follow the guidelines shared in this opinion and consult the ethics opinions from your jurisdiction for additional insight. You’ll be well on your way to obtaining assistance and insight from your online network and providing your clients with the best possible representation – and all within the bounds of your ethical obligations.