Social Media, Lawyer Liability and EthicsBy Jett HannaIt should now be a matter of professional competence for attorneys to take the time toinvestigate social networking sites.
Griffin v. Maryland, Case No. 1132, Court of Special Appeals Maryland, May 27, 2010, slip op. at 14quoting Sharon Nelson et al., The Legal Implications of Social Networking, 22 REGENT U. L .REV. 1,at 13 (2009/2010), online at http://mdcourts.gov/opinions/cosa/2010/1132s08.pdf.An opinionreversing this case is discussed in the text of the article below. The import of the statement above isactually enhanced by the reversing decision.
(T)he 2011 American Bar Association (ABA) Technology SurveyReport…recorded that 62%...of individual attorneys say they have LinkedInprofiles
Large legal firms need to get smarter about social media to compete, TechJournal,December 23, 2011,http://www.techjournalsouth.com/tag/legal-services-use-of-social-media/.
Social media affects the legal profession in two broad ways. Lawyers are using social media tocommunication with others, both personally and professionally. The rest of society is as well, whichmakes social media an important source of evidence in more and more cases. This article outlines selected ethical and malpractice issues that may arise from how lawyers utilizesocial media in both the business of law and in representation of clients. The paper will look first atsocial media as evidence generated by clients and adversaries, and then as generated by lawyers.Suggestions will be provided on how best to confront the ethical and malpractice issues. As a lawyerfor a legal malpractice insurance carrier, I wish to avoid implications that any of my suggestionsconstitute the standard of care. Even weak disciplinary suits and malpractice claims can cost lawyersmoney and time, and some of my suggestions may help to avoid weak allegations.
Definition and Characteristics of Social Media
Focusing too much on social media as a unique form of communication is perhaps unwarranted.Merriam Webster defines "social media" as "forms of electronic communication (as Web sites for socialnetworking and microblogging) through which users create online communities to share information,ideas, personal messages, and other content…"http://www.merriam-webster.com/dictionary/social%20media.Key elements of the definition are:1. Electronic communication2. Formation of online communities3. Sharing of contentExactly where social media begins and other types of communication end is not clear. For example, anemail subscription list could be thought of as social media, since multiple parties see allcommunication to the list. Facebook has a private messaging feature that is much more like private