Lawyers have always been held to high ethical standards; arguably, higher standards than most other professions. After all, lawyers are “officers of the court,” and therefore, ambassadors and guardians of the legal system. These standards of ethics are primarily set by the state where a lawyer is admitted to practice. However, the American Bar Association (ABA) as well as state and federal courts often play a significant role in determining what a lawyer can and cannot do.
As the world changes, ethical standards for lawyers must be perpetually reevaluated and updated. And due to the evolvement of the Internet age, and particularly Social Media, ethical standards have had to evolve as well.
At the end of the day, lawyers are people; therefore, lawyers will inevitably use Social Media much in the same way that other individuals do. Just as there are pitfalls and legal landmines to avoid for individual users and businesses in every industry, the same goes for lawyers and their practices. Keeping abreast of the legal and ethical ramifications involved in the use of Social Media is of the utmost importance for any legal professional.
According to recent surveys, Attorneys are now as likely as non-attorneys to use Social Media. In fact, a recent study by the ABA* found that more than ½ of all lawyers belong to at least one social media website, whether it be Facebook, Twitter, Instagram, LinkedIn, Google+, or otherwise.
In 2009, the ABA created the 20/20 Commission (the “Commission”), which was charged with assessing the current ABA Model Rules. Since then, all jurisdictions, save for California, have adopted some form of the ABA Model Rules. The Commission was tasked with performing “a thorough review of the ABA Model Rules of Professional Conduct and the U.S. system of lawyer regulation in the context of advances in technology and global legal practice developments.” In other words, to keep up with social change, a large part of which is Social Media, and the evolution of the practice of law. ABA Model Rule 1.1 states in part, “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.”
To stay current and abide by the ethical rules, lawyers must continually educate themselves on issues, ethical opinions, ethics rules, and current case law that affects their practice and their clients.
The Commission recommended changes in four (4) distinct categories:
The ABA House of Delegates, the ABA’s governing body, approved these changes on August 6, 2012 at its Annual Meeting held in Chicago, IL.
There were a number of other Model Rules which were directly impacted by the Commission’s recommendations. In particular:
Furthermore, in 2010 the ABA’s Standing Committee on Ethics and Professional Responsibility issued a Formal Opinion (10-457) dealing with “Internet ethics.”
The opinion acknowledged that lawyer websites are common means of communicating with the public and concluded that:
As noted, rules and laws pertaining to lawyer ethics vary from state to state. One example of how jurisdictions vary in their treatment is regarding the use of disclaimers on websites, blogs, and other forms of online advertisements. For example, the DC Bar does not require disclaimers. In fact, the D.C. Rule of Professional Conduct 7.1(a) dictates only that lawyers must make truthful statements that are not misleading in advertisements. These statements cannot create an “unjustified” expectation about the results that the lawyer is able to achieve for a client. On the other hand, California and Virginia consider blogs to be attorney advertising, where a disclaimer is required.
Some states like California, New York, Oregon, and Rhode Island allow for the use of testimonials for advertising purposes, although restrictions do apply. Conversely, Virginia, Florida, Nevada, and Wyoming don’t allow lawyers to have testimonials at all. In fact, the Florida Bar has imposed among the most restrictive ethics rules of any state.
As a U.S. lawyer admitted to practice in any state, it is our responsibility to know the rules and abide by them. To ignore them can subject a lawyer to discipline and worse—disbarment.
The second president of the U.S. John Adams proclaimed that “We are not a nation of men, but of laws,” therefore, I take great pride in my profession as an attorney and accept all the responsibilities that come with it. I cannot stress enough the importance that ethics play in our legal system, and in the smooth and efficient running of our respective law practices. People rely on these ethics when facing legal challenges, as does our society as a whole.
Until next time, I’m Attorney Francine Ward.