Rapidly expanding use of the social media requires lawyers to obtain the competence to advise clients on social media matters as well as to ethically use social media for their own professional purposes. Test your competence by evaluating your knowledge of the following ten key issues:
The answers to these issues have come out piecemeal from bar ethics committees and the courts resulting in a mishmash of guidance for the practicing lawyer. In Formal Opinion 2014-300 (9/14) the Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility comes to the rescue. The opinion begins with the above list of ten issues and proceeds
to analyze each in detail. It cites applicable Pennsylvania rules of professional conduct that are quite similar to Kentucky’s, and cites a variety of opinions from other jurisdictions. This opinion is the best and most comprehensive treatment of social media ethics issues to date.
What follows is an overview of Formal Opinion 2014-300 using extracts from the opinion covering key points. Our intent is to assist you in avoiding social media ethics violations and malpractice claims.
What Does Competence Mean in the Contect of Social Media Legal Advice?
As a general rule, … to provide competent representation under Rule 1.1, Competence, 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.
Lawyers must be aware of how these websites operate and the issues they raise … to represent clients whose matters may be impacted by content posted on social media websites. Lawyers should also understand the manner in which postings are either public or private.
To maintain the requisite knowledge and skill, a lawyer should keep abreast of benefits and risks associated with relevant technology…. Thus, … 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.
Lawyers Must Be Alert to the High Risk of Misrepresentation on Social Media
Social networking easily lends itself to dishonesty and misrepresentation because of how simple it is to create a false profile or to post information that is either inaccurate
Editor’s Note: Lawyers must be sure that neither they nor their clients engage in conduct involving dishonesty, fraud, deceit or misrepresentation on the social media that could result in a violation of Rule 8.4 (c), Misconduct, and disciplinary action against the lawyer.
Formal Opinion 2014-300
Answers to the Ten Social Media Issues
Formal Opinion 2014-300 is highly recommended professional reading for all Kentucky lawyers. We suggest you download a copy at www.danieljsiegel.com/Formal_2014-300.pdf (last viewed on 1/13/15) or with a Google search and place it in your Risk Management file. Always remember when in doubt on an ethics questions, the KBA Ethics Hotline is just a phone call away.
Disclaimer: The contents of this Web site are intended for general information purposes only and should not be construed as legal advice or legal opinion on any specific facts or circumstances. It is not the intent of this Web site to establish an attorney’s standard of due care for a particular situation. Rather, it is our intent to advise our policyholders to act in a manner which may be well above the standard of due care in order to avoid claims having merit, as well as those without merit. In the event any statement on the Web site differs from a statement in an issued policy the policy will control.