Sunday, January 12, 2014

5 Legal Pitfalls of Social Media for Lawyers (Guest Post) | Law of Social & Emerging Media |

See - 5 Legal Pitfalls of Social Media for Lawyers (Guest Post) | Law of Social & Emerging Media |

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It is a definite boon for lawyers to take advantage of social networking tools on the Internet. However, there are potential ethical legal issues that a lawyer may be faced with when social networking. Most are obvious, but they are often overlooked. Research by the Opposition It’s almost common sense nowadays to Google something that we want to know more about. If an investigator or a lawyer investigates through social media, are there any pitfalls? Well, yes and no. The Philadelphia Bar Association did an opinion on an investigation of a witness researching their Facebook page. In the opinion, a lawyer asks a third party to send a friend request via Facebook to the subject of an investigation. The opinion came to the conclusion that the lawyer could not be a participant in the investigation. The lawyer could no longer participate because it violated Pennsylvania’s rules of deceit, truthfulness in statements to others and the responsibilities of lawyers with regard to non-lawyer assistants. However, Facebook has a variety of security settings that would be viable to do research through. For instance, an investigator may have a subject within his/her “network” via a friend of a friend. Therefore, certain personal information may be available if the investigator’s target’s privacy settings are set just right. 

Do Not “Friend” Judges In North Carolina, a judge was found in the wrong for “friending” a lawyer on Facebook during a case and exchanging messages about the case. The judge also pulled a poem from another lawyer’s clients website, which he referenced during the court case. At the request of the lawyer in (whose client’s website was accessed), the judge recused himself. The judge was accused of ex parte communications and the independent gathering of facts. While this is a story of a judge getting caught in a social media pitfall, it could be easily reversed to the lawyer. The Florida Judicial Ethics Advisory Committee came to the conclusion that lawyers and judges should not “friend” each other via Facebook. If it were an election campaign page, however, lawyers can be “fans” of the page. Some on the committee indicated that judges and lawyers should be able to “friend” each other because “friends” on Facebook are not indicative of real friendships. So, in short, the issue is unclear, so tread carefully. 

Other Facebook Pitfalls Obviously, social networking sites like Facebook facilitate communication. So, then, all the rules that apply to communication will, for the most part, apply to social media communications. Confidential information should not be shared on Facebook with a client unless the proper precautions are taken so that only the client can see the info. But, I would just stay away from posting any sensitive information of Facebook despite security precautions. Too many things could go wrong. A lawyer will also want to be cautious about “friending” clients. If a lawyer is dual representing two clients, but is only Facebook friends with one, he/she might be found to favor the Facebook friend. While, as mentioned earlier, that sort of social media connection isn’t necessarily indicative of a true preferential friendship, a jury may have trouble making the distinction. 

Unintended Attorney-Client Relationships This is an easy trap to fall in to. When building your social media presence, what starts as a friendly informational post can turn into an unintended attorney-client relationship if you’re not careful. Posting about general legal information is fine, and even encouraged for a lawyer’s social media site. Nevertheless, if the general legal information turns to pointed, opinionated legal counsel for real legal situations at an individual, an unintended attorney-client relationship is likely to be forged. These unintended relationships can also lead to another pitfall: practicing outside of the jurisdiction in which you are licensed. Avoiding extensive back-and-forth interactions on any social media outlet representing your law firm is the best way to circumvent this problem. If there are pointed legal questions privately messaged to you, advise a phone call or in-person consultation. - See more at:

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