Wednesday, January 16, 2013

What to keep in mind when using "social media"

Over at the Legal Ethics Forum, Nicole Hyland has posted a summary of remarks she is preparing to deliver at a conference on ethical issues related to the use of social media.  Her main theme is that
"there are four general ways that lawyers can get into trouble using social media.  First, they make a false distinction between their personal on-line interactions and their professional social media use.  Second, even when they have their lawyer "hats" on, they can run afoul of ethics rules, employment policies, or other rules.  Third, they misuse social media as an investigative or discovery tool.  Fourth, they fail to advise their clients adequately regarding their own use of social media"
Go here to read the article.

I would add a fifth possible problem, although it may be implied in all the ones mentioned above:  the most recent amendments to the model rules (and more than likely soon to be adopted by most states) added that knowledge about "technology" is part of the notion of competence under rule 1.1.  This means that lawyers are now expected to know about these things.  If they "get in trouble" because they did not really understand the possible risks involved in using social media, they could be held to be "incompetent" under the rule, which at least in theory could also be used as evidence of a breach of duty in tort.

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