JAMS ADR Insights
Tips to Keep Social Networking in Line With ABA Ethics
Published August 24, 2012
While the ADR community has been a little slower about adopting some of these social media tools, these suggestions can still be helpful to those who are already utilizing social media in their ADR practice or those who are just starting out.
Following are some of Robert’s recommended tips and a link to the article in full.
Remember that the same rules apply
Blogs, social networks, Twitter, etc. remain relatively new forms of media, but the same old ethical rules apply.
Even the Ethics 20/20 Commission, after studying these issues for three years, concluded in a Dec. 28, 2011, report, “In general, we have found that the principles underlying our current Model Rules are applicable to these new developments. As a result, many of our recommendations involve clarifications and expansions of existing Rules and policies rather than an overhaul.”
Avoid inadvertently forming attorney-client relationships
The Ethics 20/20 Commission takes a reasonable approach to this issue, suggesting that this danger exists only when the lawyer gives the prospective client a “reasonable expectation” that he or she is willing to form an attorney-client relationship.
A lawyer can participate in these forums but also disavow any “reasonable expectation” by expressly using cautionary language and disclaimers in an answer. Keep your answers generic, avoid addressing highly specific facts, and expressly state that your answer should not be considered legal advice.
Understand the rules on recommendations
ABA Model Rule 7.2 says, “A lawyer shall not give anything of value to a person for recommending the lawyer’s services.” Does this mean you cannot provide an endorsement of a colleague on sites such as LinkedIn or Avvo? Absolutely not, provided nothing of value is exchanged. But can you promise to provide an endorsement if the other attorney promises to endorse you in return? That quid pro quo could be seen as an exchange of value.
Become competent in technology and social media
You will not find anything in the ABA Model Rules or your own state’s ethical rules about competence in technology. Yet it only makes sense: The best way to stay out of trouble with any medium is to understand how it works. If you are uneducated about technology and social media, you are more susceptible to tripping up.
Although the Model Rules are silent on this, the ABA 20/20 Commission has proposed to change that. The commission has suggested that the comment to Model Rule 1.1, on competence, be amended to require that lawyers not only maintain competence in law and practice, but also in “the benefits and risks associated with technology.”
Use common sense
Exercise common sense in your use of social media and you are unlikely to get into trouble. Think carefully about that blog post before you hit publish. Consider all 140 of those characters before you send out a tweet. Always be mindful of that now-old saw, “If you wouldn’t want to read it on the front page of The New York Times, don’t post it online.”
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