Some Ethical Dos & Don’ts for Social Media

By Edward McIntyre

DO use social media, if it’s your style, to get your message out; to stay in touch with clients, colleagues, friends.

DON’T post anything false or deceptive — on any medium.

DO consider separate accounts: one just for your professional life; the other, personal.

DON’T attempt to “friend” a represented party; or a sitting juror.

DO use social media to “research” opposing parties; potential witnesses; experts.

DON’T allow others to post confidential information on your media, especially a firm website.

DO warn clients that opposing lawyers will scour the digital world looking for their social medial posts.

DON’T promise, or even suggest, great results. The required disclaimer — State Bar advertising rules — is clumsy and will take the wind out of your sails.

DO be careful in social media exchanges with judges and arbitrators. It’s allowed but it could require disclosure and give rise to recusal motions. Be judicious.

DO remember client confidentiality and client secrets especially with informal posts; even indirect references may expose confidential information. You may be proud of successfully defending that DUI this morning, but your client might not be pleased when you broadcast your victory and the reason she had to “go to court.”

DON’T say you’re available for business, even by implication, unless you intend to comply with those State Bar advertising rules, including saving your posts for two years and adding the advertisement label.

DO include a clear warning not to disclose anything confidential and that a web inquiry does not create an attorney-client relationship. Otherwise, an “accidental client’s” confidential information may disqualify you from a worthwhile representation.

DO also warn clients that they cannot delete anything after the dispute arises. The penalty for evidence spoliation is far greater than the embarrassment from a stupid post or tweet.

Edward McIntyre (edwardmcintyre1789@gmail.com) is an attorney at law and Co-Editor of  San Diego Lawyer.

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