Social media has been around for more than two decades. Of the major social media sites in use today, LinkedIn launched in 2003, Facebook in 2004, Twitter in 2006, and Instagram in 2010.
Social media is relevant to law practice. More than 4,800 South Carolina lawyers—more than one in three members of the state bar—are using LinkedIn.1 Justice John Few of the SC Supreme Court is active on Twitter (@Justice_Few), and the Risk Management Director of the SC Bar, Nichole Davis, is active on Instagram (@theanxiousattorney).
When Comment 8 to Rule 1.1 of the ABA Model Rules of Professional Conduct states that “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology,” it follows that basic social media awareness is part of that responsibility.
Know the Benefits
One benefit of social media is the opportunity to observe or participate in conversations in the legal field. One can start by following institutional social media accounts such as those of the SC Bar (@SCBAR), practice area groups, law schools, or legal news publishers. No social media account is required to Google search hashtags like #lawtwitter, #legaltech, or #palmettoprobono which provide rapidly updated, crowdsourced information on topics of interest.
Feeling like part of a community, especially in a field where many feel isolated, is another benefit of social media presence. This goal may take time and participation to realize. To start small, create a profile, add a professional photo, and begin “liking” others’ posts. “Likes” on social media cause the brain to release the chemical dopamine,2 which is also released when you see smiling faces or receive peer recognition.3 Some lawyers find it easier to network in person with other lawyers at lunch or after work. But for lawyers in remote areas or who have schedule conflicts, social media may provide a helpful stopgap allowing them to maintain connections until they are able to meet again in person.
Know the Risks
Your Clients’ Privacy
There is significant privacy risk in using social media. Free social media sites make money by exploiting user data in ways users often don’t expect. Rule 1.6, amended by the SC Supreme Court in June 2019, provides this takeaway: lawyers must post nothing on social media about any client representation, unless the client gave informed consent.4
Different ethical risks arise when searching social media for information about others. “Just looking” at publicly available information can accidentally turn into communicating with a represented person5 when LinkedIn tells a user who has viewed their profile. It may be tempting to send a friend request to gain access to someone’s friends-only posts. But Rule 4.2 prohibits communicating with an opposing party who is represented, Rule 8.4(c) prohibits misrepresentation such as using a false name, and Rules 5.3 and 8.4(a) prohibit getting a paralegal to do what the rules of professional responsibility forbid a lawyer to do.6
Further Ethics Reading
Social media can impact more rules than have been mentioned here, including rules on advertising, diligence, and lawyer-client relationships. For more detail, here are three overviews of how social media and professional responsibility interact. Each one is available for free online and is worth reading in full.
- Julie C. Jackson-Bailey, student of Nathan M. Crystal (2012), Proceed with Caution: The Ethical Issues Lawyers and Judges Face When using Social Media.
- Pennsylvania Bar Association Formal Opinion 2014-300, Ethical Obligations for Attorneys Using Social Media.
- Jessica Weltge & Myra McKenzie-Harris, ABA Section on Labor and Employment (2017), The Minefield of Social Media and Legal Ethics: How to Provide Competent Representation and Avoid the Pitfalls of Modern Technology.
Use Best Practices
Review a help page
Lack of familiarity with an interface can lead to rookie mistakes, so use Google to find instructions for social media tasks. Appearance, functionality, and policies of social media sites can change dramatically, with little notice, but current information will be found on the help page:
Be your best professional self
Many lawyers find the benefits of a social media presence can outweigh the risks, given some thought and effort. Respect and civility are key to unlocking the conversational and community benefits. Staying up-to-date on social media functionality and the rules of professional responsibility will help mitigate the risks.
By: Eve Ross, Reference Librarian
University of South Carolina School of Law Library
SC Bar Technology Committee