Attorney Ethics & Social Media, Uncategorized

Oops…Did You Just Become a Client?

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If I told you that it was easy to get clients through social networking you’d be excited. But what if I told you that it was so easy, you could form lawyer-client relationships without even realizing it? Not so appealing now, huh? The reality is that it’s dangerously easy to establish L/C relationships through our interaction in social networking and the prudent attorney needs to be aware of this pitfall.
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Consider the “law school” definition of when a L/C relationship is created: If a person seeks advice, and you give advice, in circumstances where a reasonable person would rely upon that advice, a L/C relationship could be created. There’s that reasonable person again– you seem him all over the ethics rules….the reasonable man gets around more than Tiger Woods! OH!Bad jokes aside, think about that definition and consider these two situations that may (or may not have) happened to me– of course, I’ll never admit whether they actually occurred for fear of being smacked upside the head with the ethics stick…In each of these cases we have a person who sought advice, I gave advice and there was a situation where it was reasonable for them to rely on that advice. In both instances you could say, “Congratulations Mr. Teicher, you’ve got a brand new baby client!”

 

1- I provided a long, detailed answer to a question on LinkedIn in a not-so-unusual attempt at self-promotion. After I posted the answer, the questioner sent me a follow up note to discuss things and I responded privately…

2- An high school friend asked me a “quick legal question” on Facebook. They didn’t quite understand my answer so I had a back-and-forth with them until they got it….

 

It’s up to you to watch what you say and control how you say it. Avoid creating L/C relationships in SN by responding to online advice-seekers the same way you would if they were standing right in front of you–try to be moderately helpful by talking about their issue vaguely and then artfully avoid giving any actual “advice.” Provide generic-style information that will intrigue the person and encourage them to engage you formally. Just to be safe, it’s probably a good idea to throw in a disclaimer-style statement that tells them that they shouldn’t rely on what you’re saying.

Don’t smirk like that– you know exactly what I mean– you’ve been dealing with this in the face-to-face world for your entire career. That’s the trick– talk to a SN advice seeker the same way you’d talk to them if you met them in person.

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The Dangers of Social Networking for Lawyers

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Welcome to my new blog about the dangers that exist in the hottessocial_networkingt trends in the law. I’ll be talking almost exclusively about social networking for quite some time.

I’m not going to try to convince lawyers to get involved in social networking– that’s not what this is about. The only thing I’ll say about that is that a smart attorney will be involved in social networking, if only because you need to stay on top of the ever-changing technology– you don’t want to find yourself a few years from now huddled over your IBM Selectronic typewriter, clutching the receiver of your rotary telephone!

This blog is going to be about the pitfalls that lawyers face when using social networking and how they can be avoided. Hopefully I can point out where the landmines are located and provide a little direction about how to avoid setting them off. Plus, I’ll be blogging about the progress made by the ABA’s 20/20 commission as they try to update the ethics rules to accommodate this incredible new medium.

BTW, this blog will be a series of short posts, because I don’t have the patience to read long entries, no less write them. There’s a lot of info out there and I don’t want you to become water-blogged.

Here’s a little nugget I’ll throw out, just to start things off…

It’s easy for your client to blow the attorney client privilege by using social networking, so watch out! Remember, the attorney-client privilege is held by the client, but they can waive it. Most clients don’t realize that they can waive that privilege accidentally and that it can happen in social networking.

Think about how many times a client posts a blog entry where they rant about how upset they are when something unfortunate happens in the course of a lawsuit. They may also send out an angry Tweet, or comment about it on their Facebook page. That posting may contain information that the two of you have discussed like trial strategy and before they realize it they’ve blown the privilege. There’s gonna be trouble if your adversary is monitoring your client’s page throughout the litigation (which happens quite often these days and will be the subject of a blog post of it’s own).

My recommendation….tell your clients to keep their big laptops shut! They probably don’t understand the privilege and they need to be told that they should never blog about ongoing matters, or post comments on FB or other platforms where they tell the details about your conversations.