Why Lawyers MUST Get Their Heads Out of the Sand about Social Media
Debra L. Bruce, JD, PCC.
The mushrooming popularity of social media creates novel legal issues to be resolved, as well as a lot of opportunities for mistakes by lawyers and their clients. Wake up! How can you answer your client’s questions or warn them about potential legal infractions, if you aren’t familiar with the medium? Could you be completely missing a good business development opportunity?
Many lawyers tell me their clients don’t use social media, but have they really checked? Or is that just an assumption? How do you check, if you don’t engage in social media yourself? Not long ago I spoke to about 50 lawyers, most of whom knew very little about social media. The room got very quiet when I started putting up on the screen the logos of their clients who had Twitter, Facebook and LinkedIn accounts. If you asked your clients last year whether they used social media, they may have a different answer now. Could your competitors be enhancing their relationships with your clients via social media, while you remain oblivious?
Even if your clients don’t officially have a social media presence, their employees, customers, or competitors may be posting things that affect your clients. When they ask you what to do about it, how will you be able to advise them if you don’t understand what they are talking about?
Here are some examples of how you might be called on in your law practice to address social media issues.
- The City Attorney of Redondo Beach, CA reportedly advised the city to take down its Facebook page to avoid freedom of speech issues, public records requirements and potential violations of open meetings laws.
- The Philadelphia Eagles fired a disabled employee (and avid fan) for a colorful Facebook post criticizing them for trading a favorite player. It turned into a public relations nightmare with multiple television interviews of the employee, national publicity and 72% of fans on a Philadelphia TV station poll saying “hire him back.” If they had consulted you before taking action, would you have understood the potential legal and non-legal repercussions of their decision?
- Many lawyers in employment, personal injury and family law have found evidence on social media sites that allowed them to impeach a witness or significantly discredit the testimony of an opposing party. Do you know how to mine for such gold, and what ethical limitations you might have in the process? In 2009, the Philadelphia Bar Association issued an ethical opinion prohibiting certain types of investigation on Facebook. It also limited what others can do on your behalf. If you hire an investigator to find evidence for you, are you risking an ethical violation? If you don’t check out obvious investigation opportunities, could that be malpractice?
- Organizations are starting to ask for advice on establishing a social media policy. One of my attorney clients got just such a request even as I was writing this post! There is no “one size fits all” format. Would you know how to respond? Or will your clients learn to turn to your competitor for help with contemporary issues?
- A woman got arrested for poking someone on Facebook. Do you know what that means? Do you need to advise your clients not to do that?
- Many types of social media now have “geo-tagging” that can reveal the location of the person at the time of the posting. Sometimes the posts themselves accidentally reveal confidential information, such as when a Congressman revealed his whereabouts during a secret trip to Iraq. Do you know what media or technology to warn your clients (or even your firm’s young lawyers) about during secret merger negotiations or other highly confidential meetings?
- If you are a litigator, you may get discovery requests that would cover social media postings. Do you know what to ask for from your client? Do you know how to argue for protection of that information?
These are just a few of the reasons why you should start learning about social media. We didn’t even mention the marketing advantages for you.