By Shelly Skinner
California Rule of Professional Conduct 1.1 requires that attorneys provide competent representation to their clients. This includes “the duty to keep abreast of the changes in the law and its practice, including the benefits and risks associated with relevant technology.” Cal. Rule of Prof’l Cond., Rule 1.1, Comment 1.
Thirty-nine other states have adopted the same or similar language regarding competence with technology. Robert J. Ambrogi, “40 States Have Adopted the Duty of Technology Competence,” LawSites, https://www.lawnext.com/tech-competence. Some of those jurisdictions have specified that the duty includes competence with social media. N.Y. State Bar Ass’n Social Media Ethics Guidelines (updated 2019) (“A lawyer has a duty to understand the benefits, risks and ethical implications associated with social media, including its use for communication, advertising, research and investigation”); N.H. Bar Ass’n Op. 2012-13/05 (2012)(lawyers “have a general duty to be aware of social media as a source of potentially useful information in litigation, to be competent to obtain that information directly or through an agent, and to know how to make effective use of that information in litigation”); N.C. 2015 Ethics Op. 5 (2015)(“If the client’s postings could be relevant and material to the client’s legal matter, competent representation includes advising the client of the legal ramifications of existing postings, future postings, and third party comments”); Pa. Bar Assoc. Formal Op. 2014-300 (2014) (“As a general rule, in order to provide competent representation under Rule 1.1, a lawyer should advise clients about the content of their social media accounts, including privacy issues, as well as their clients’ obligation to preserve information that may be relevant to their legal disputes….In order to provide competent representation in accordance with Rule 1.1, a lawyer should (1) have a basic knowledge of how social media websites work, and (2) advise clients about the issues that may arise as a result of their use of these websites”); Phila. Bar Ass’n Prof’l Guidance Comm. Op. 2014-5 (2014)(“a lawyer should (1) have a basic knowledge of how social media websites work, and, (2) advise clients about the issues that may arise as a result of their use of these websites); W. Va. Legal Ethics Op. 2015-02 (2015)(“…attorneys should both have an understanding of how social media and social networking websites function, as well as be equipt [sic] to advise their clients about various issues they may encounter as a result of their use of social media and social networking websites”).
While the State Bar of California has not issued an ethics opinion that explicitly includes social media in the scope of the duty of competence, the ubiquity of social media almost certainly makes it a “relevant technology” that is covered by Rule 1.1. See “Social Media Fact Sheet,” 2021, Pew Research Center (72% of American adults use at least one social media site); see also John G. Browning, “Handy pointers for how lawyers can maintain their civility and avoid ethical issues when engaging on social media,” 2021, For the Defense, http://digitaleditions.walsworthprintgroup.com/publication/?m=55594&i=725009&view=articleBrowser&article_id=4134245&ver=html5 (“With over two billion people worldwide on Facebook, a billion tweets processed on Twitter every 48 hours, and over 800 million users Instagramming and Snapchatting away, social media is impossible to ignore.”).
Certainly, it is notable that ethics opinions regarding attorney use of social media have been published for over 10 years. Since these issues have been considered for over a decade, it could damage the public’s confidence in the legal profession if lawyers are not familiar with a tool that most of their clients are likely using. See Meredith Parnell & Morgan Nelson, “Social media: Be competent or face the consequence,” 2018 ABA Student Lawyer Blog, https://abaforlawstudents.com/2018/08/09/social-media-be-competent-or-face-the-consequence/.
Not only should lawyers be able to provide guidance regarding their clients’ use of social media, but lawyers must also understand the features and functionality of social media platforms that they use in their practice. Thus, attorneys often use social media to investigate parties’ conduct, look into the background of jurors, or find other information that is relevant to their cases. According to American Bar Association (ABA) Formal Opinion 466, “While many people simply click their agreement to the terms and conditions for use of [a social media] network, a lawyer who uses [a social media] network in his practice should review the terms and conditions, including privacy features — which change frequently — prior to using such a network.” By setting forth such a duty, the ABA alerted lawyers across the nation of the obligation to be competent with respect to social media issues. By complying with this duty, attorneys will be able to avoid ethical landmines that involve advertising and marketing; incivility; impermissible contacts with represented and unrepresented parties, as well as jurors; deception; disclosure of confidential information; and preservation of evidence — to name a few.
Note that if an attorney does not possess sufficient learning and skill regarding a matter, they may “nonetheless provide competent representation by associating with or, where appropriate, professionally consulting another lawyer whom the lawyer reasonably believes to be competent.” Cal. Rule of Prof’l Conduct, Rule 1.1. However, consulting or associating with a lawyer of established competence “does not absolve an attorney’s obligation to supervise the work of the expert.” State Bar of Cal. Standing Comm. On Prof’l Responsibility and Conduct Formal Op. 2015-193 at 5. Rather, “[a]n attorney must maintain overall responsibility for the work of the expert he or she chooses … by remaining regularly engaged in the expert’s work …” Id. Failure to comply with this obligation could result in sanctions.
Accordingly, attorneys must take seriously their duty to provide competent representation. They must also consider that this duty likely extends to issues involving social media. While an attorney may fulfill their duty of competence by associating with other attorneys of established competence, the attorney should remain regularly engaged in the expert’s work on the case. By remaining competent regarding the use of social media, attorneys will be able to avoid ethical landmines, provide important counsel to their clients, and promote confidence in the legal system.