the ethics of social media for family law attorneys

THE ETHICS OF SOCIAL MEDIABy: Melody Z. Richardson

It does not pay!

• Review the rules of professional conduct before posting to social media.

RULE 1.6 CONFIDENTIALITY OF INFORMATION

• A lawyer shall maintain in confidence all information gained in the professional relationship with a client, including information which the client has requested to be held inviolate or the disclosure of which would be embarrassing or would likely be detrimental to the client, unless the client gives informed consent, except for disclosures that are impliedly authorized in order to carry out the representation, or are required by these Rules or other law, or by order of the Court.

• The maximum penalty for a violation of this Rule is disbarment.

CONFIDENTIAL INFORMATION

• Violation of this rule seems to be the most common error when using social media

• What may seem funny is probably a violation

“Proper Court Attire”Lawyer Puts Photo of Client’s Leopard Print Underwear

on Facebook

Fired, Suspended, MistrialThe consequences of a thoughtless post can be dire!

The Public Defender who posted a photo of her client’s underwear suffered all of those consequences, even though no name was mentioned in her post.

EXCEPTION TO MAINTAINING CLIENT CONFIDENCE:

A lawyer may reveal information covered by paragraph (a) which the lawyer believes necessary to establish a claim or defense on behalf of the lawyer in a controversy

between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to

respond to allegations in any proceeding concerning the lawyer's representation of the client.

Can you post client confidences in response to a negative post by a

client on a consumer social media page under the exception?

NO!

APPROPRIATE RESPONSE TO BAD REVIEW ON SOCIAL MEDIA

If you feel a response is necessary, make it innocuous

Warn your clients against posts on social media that can hurt their case

• An attorney may not advise a client to take down a post or to become inactive to try to hide posts that may be harmful

• See Georgia Rule of Professional Conduct 3.4(a)-(b)

• Attorney who advised his client to remove a post and hide the evidence fined over half a million dollars!

Counsel your Clients against Thoughtless Facebook Posts

Add the warning to use good judgment on social media to your

retainer agreement.

SOCIAL MEDIA Client agrees to exercise good judgment when using any social media, such as Facebook. Client understands that posts on social media are

permanent and can have a negative impact on the outcome of the Client’s case. Client further understands that the Firm is not permitted

to hide or delete such posts, and that the Client may suffer from adverse consequences if the Client does not exercise good judgment

and decorum on social media.

Think before you hit “Post”I would advise against the

following:

Is this post within the bounds of Georgia’s Rules of Professional Conduct?

Is this post within the bounds of Georgia’s Professionalism Rules?

What about Avvo?Rule 7.1(a)(2) that says a communication is false, fraudulent or misleading if it

is likely to create an unjustified expectation about results the lawyer can achieve . . . .

If you have client recommendations, put a disclaimer that results vary based on the facts and circumstances of the

case somewhere on the website.