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   Dear Fellow Members:

    Below you will find a link to an online copy of the Maryland Rules of Professional Conduct. We have provided this link in hopes of making your search for answers to your legal ethics questions easier. As always, if you need additional guidance, please do not hesitate to call the Legal Ethics Committee hotline at the number listed in the current issue of your bar newsletter.


         MD Rules of Professional Conduct

Legal Ethics Hotline Volunteers ... December
Brian Barkley ... 301-251-6600 ... bbarkley@barkenlaw.com
Steve Gaba ... 301-738-7770 ... sgaba@aol.com

Legal Ethics Hotline Volunteers ... January
Sam Shapiro ... 301-340-1333 ... rogah@aol.com

Adam VanGrack ... 301-291-5027 ... avangrack@lvglawfirm.com

 

Ethical Considerations Relevant to Social Media Use
By Edward E. Sharkey

As technology has progressed, the use of social media has become a necessity for many law firms. In 2016, seventy-four percent of lawyers said their firms maintained social media networks, and seventy-six percent reported that they individually had social media accounts for professional purposes.1 Lawyers also commonly find themselves in a position to give clients advice about the disposition of the client’s social media. This article explores ethical issues posed by social media in two contexts: when the lawyer advises a client about the client’s social media, and when the lawyer advertises his own services using social media online.2

Advising clients about the use and management of social media: Lawyers typically deal with their clients’ social media in the context of a dispute or a transaction. Maryland Rule of Professional Conduct (MRPC) 19-301.1 imposes a duty of competence. Comment 6 requires a lawyer to “keep abreast of changes in the law and its practice.” It does not touch upon social media or the internet. The analogous ABA rule does contain amended comment 8, which explains that the duty includes staying abreast of “the benefits and risks associated with relevant technology. 

While the standard is not explicit, a lawyer should assume that “competence” in the modern age includes the obligation to understand whether and how social media may affect a client’s rights in various circumstances. That would encompass the context of litigation or transactions, where a lawyer should assume a duty to warn a client that existing social media might be accessible to third parties and could be used against him.

There is a countervailing responsibility, however, to avoid “spoliation” of information that may be relevant to a dispute. This is not merely a procedural issue. Maryland Rule of Professional Conduct 19-303.4 admonishes that a lawyer shall not “unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value. An attorney shall not counsel or assist another person to do any such act.” A lawyer who warns a client that his social media may be deleterious cannot disregard the risk that this may motivate the client to “take care of it” in the underworld sense. 

While formal published cases are scant, the DC Bar issued an ethics opinion giving guidance on these issues.3 The DC committee held that a lawyer’s duty may include the duty to review the client’s social media for information inconsistent with the client’s legal position in a matter. The lawyer must address any inconsistencies before striking a legal posture for the client to ensure that any claims or positions asserted are meritorious. The same consideration arises in transactions, where social media content could potentially contravene representations, warranties, covenants, conditions, restrictions, and other terms or proposed terms of agreements.

With respect to litigation, the committee advised that, because of the duty to preserve, a lawyer may need to include social media in advice and instructions about the litigation-hold. It held that the lawyer also “may need” to determine whether clients may permissibly modify their social media content once litigation is anticipated. While the committee characterized these obligations as possible, experience teaches that most courts would probably consider them mandatory.

There are meaningful examples. In one Virginia case, a plaintiff’s lawyer told his client to “clean up” his Facebook page, despite having received discovery requests from the opposing party.4 The lawyer did not advise the client to preserve the content, and the circumstances indicated the lawyer intended for the data to disappear. Ultimately, the court imposed a sanction on the lawyer of $542,000 and on the plaintiff of $180,000. 

In another case, a plaintiff alleged that work-related injuries rendered him disabled. The defendant employer sought access to the plaintiff’s Facebook page.5 When the defendant accessed the page, Facebook sent an alert to the plaintiff. The plaintiff then deactivated his account, and, pursuant to Facebook’s policy, the page was deleted after fourteen days. Since the plaintiff’s posts were unrecoverable, the judge ruled the jury should be given an adverse inference instruction unfavorable to the plaintiff. 

While deleting relevant content permanently could likely be problematic, lawyers are not bereft of tools to protect their clients. The North Carolina Bar published an opinion with some useful guidance.6 It counseled that lawyers can, and probably should, warn clients not to post additional harmful content on their accounts in the future. It also pointed out that a lawyer might comply with rules concerning preservation by advising the client to delete the posts while retaining possession of digital or printed images. Finally, it suggested that changing the privacy settings on open material to make it private may be compliant with the applicable duty to preserve. This would be the case in Maryland where the duty to preserve does not include a duty to gratuitously make adverse information available to the public.

Advertising and Endorsements on social media: Another potential snare for attorneys is the website, LinkedIn. Every user’s profile contains a “skills and experience” section, and is followed by a section where third parties can “endorse” the user for specific skills. While many lawyers use this site primarily to create professional networks, the rules of ethics still govern these interactions.  

  • Endorsements: Specifically, MRPC 19-307.1 states, “[a] lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services.”  The Maryland State Bar has opined that it is an ethical violation not to remove misleading endorsements even if the content is posted by a third party to that user’s page.7  It is important that users regularly check their endorsements and verify that they accurately reflect their abilities.
  • Skills and Experience: A more complex question is: how can an attorney ethically list her skills on LinkedIn? MRPC 19-307.4(a) permits an attorney to communicate that he or she does or does not practice in a particular field of law. The rule was expanded in 1992 with the addition,”[a] lawyer shall not hold himself or herself out publicly as a specialist.” This amendment has created uncertainty about LinkedIn because attorneys want to advertise the focus of their practice, but they fear the repercussions of holding themselves out as a “specialist.” The Maryland Committee opined that listing skills or practice areas in this section is not a violation of 19-307.4 because it is unlikely to be misleading to the public.  As long as the user does not use words like “expert” or “specialist” the skills and experience section can list specific areas of practice without violating the rules of ethics. 

Despite the lack of formal rules, through the work of active ethics committees and the cautionary example of a growing number of published cases, lawyers are slowly receiving a useful body of guidance on the proper management of social media issues. 


1ABA Tech Report: http://bit.ly/2jvW5vo  

2The Committee published an article on Using Social Media to Investigate Opposing Parties in January 2017: http://bit.ly/2B38Pn6

3DC Ethics Opinion 371: http://bit.ly/2h6hOrv 

4Allied Concrete Co. v. Lester, 285 Va. 295 (Va. 2013)

5Gatto v. United Airlines, Inc., 5WL 1285285 (D.N.J. 2013)

62014 N.C. Ethics Op. 5: http://bit.ly/2kCMx5f. 

7Ethics Docket No. 2014-05: http://bit.ly/2jaiCAY. Regrettably, the Maryland Bar continues to maintain the excellent Ethics Committee opinions behind a password protected wall.

 

Co-Chairs

P. David Gavin
Allen J. Katz

Samuel M. Shapiro

 

   Committee
   Meetings

January 18, 2018
February 15, 2018
March 15, 2018
April 19, 2018
May 17, 2018

Meetings will be held on the 3rd Thursday of the month at 4:30PM in the upstairs conference room of the Bar Association building, unless otherwise noted.