Every day, litigation professionals like court reporters, legal videographers, lawyers, paralegals, and legal staff use social media sites such as Twitter, Facebook, and LinkedIn to connect with clients, share and collect information, and build professional networks, but recent stories in the news remind us that information shared online is not as private as we think. While the use of social media may be helpful in the practice of law and the litigation professionals who support the legal industry, it also increases the possibility of ethical missteps. Here are three caveats when using social media.
First, attorney-client confidentiality must be protected. The American Bar Association’s Model Rules of Professional Conduct prohibit revealing information “relating to the representation of a client unless the client gives informed consent.” Photos posted to Instagram may inadvertently expose a deposition transcript. Check-ins on Facebook could reveal a fact-finding trip during the course of construction litigation. A blog post highlighting the details of a litigation victory could inadvertently expose privileged information. In the Touro Law Review, Michael E. Lackey Jr. and Joseph P. Minta suggest that lawyers understand how information is shared on each social media platform, employ privacy settings on each platform, and separate accounts within platforms based on personal and professional use. That’s great advice for other litigation professionals as well.
Deposition service providers also have professional expectations that need to be observed, such as those found in the National Court Reporters Association’s Code of Professional Ethics. It reads, “preserve the confidentiality and ensure the security of information, oral or written, entrusted to the Member by any of the parties in a proceeding.”
According to the New Hampshire Bar Association Ethics Committee, an attorney “has a general duty to be aware of social media as a source of potentially useful information in litigation, to be competent to obtain that information directly or through an agent, and to know how to make effective use of that information in litigation.” Many state bar associations are in agreement that viewing an unrestricted social media site is permissible when preparing for litigation; however, a lawyer may not request to follow a restricted account without revealing himself as opposing counsel, nor may an attorney engage a third party to follow a restricted account for purposes of evidence gathering in the same manner.
Litigation professionals such as court reporters and other discovery support providers use social media to share information with prospective and current clients. Maintaining the integrity of the profession is written into many professional state and national court reporter association ethical standards. The Journal of Court Reporting publishes social media articles for its members review.
In a recent ABA survey, more than 93 percent of attorneys reported using LinkedIn, and according to mycase.com, one of the best uses of the site is building a professional network of colleagues. By summarizing an area of practice or uploading slides from a presentation, an attorney may showcase his or her knowledge in a particular area of law, such as asbestos defense or medical malpractice. A focused network then allows a lawyer to both collect knowledge from and share knowledge with leaders in his or her particular field. When using professional social media sites such as LinkedIn, however, attorneys should stay on top of evolving ethics rules in the jurisdictions in which they practice. For example, South Carolina Ethics Opinion 09-10 states, “A lawyer should not solicit, nor allow publication of, testimonials. A lawyer should also not solicit, nor allow publication of, endorsements unless they are presented in a way that is not misleading nor likely to create unjustified expectations.”
As established litigation professionals, CompuScripts Court Reporters is well-versed in professional ethics and privacy protection, so invite us to become a part of your social media network. You’ll find us on Facebook, Twitter, Google+, and LinkedIn. Through our blog, we’ve covered subjects such as “Two Things to Know When Scheduling Depositions” to “Law Practice Technostress: What It Is and What To Do About it.” CompuScripts is one “friend” you can trust on all of your social media platforms.