Maintaining Client Confidences and Confidential Information While Increasing Your Online Presence
Ethics Corner Article
Dear Ethics Committee,
With an increased number of people working from home, I am communicating with colleagues and clients over my computer and telephone now more than ever. I would like to grow my online presence and begin marketing my services on social media and other Internet platforms. I would also like to respond to some negative reviews about me on lawyer-review websites. What are the ethical considerations that I should keep in mind?
With an increasing amount of communications between lawyers, colleagues, and clients happening remotely, the use of technology in your law practice is now more important than ever. When undertaking to grow your practice’s online presence, you should understand the ethical implications of using such platforms and the guidance provided by the New Hampshire Rules of Professional Conduct (“Rules”).
You have an obligation under Rule 1.1 to provide competent representation to a client. This obligation includes keeping up with the use of technology and understanding the benefits and risks of using such technology in your practice. Although you are not required by the Rules of Professional Conduct to be proficient in each new form of social media as it emerges, you should “keep reasonably abreast of readily determinable benefits and risks associated with applications of technology” that you and similarly situated lawyers use. Rule 1.1 ABA Comment 8. Staying connected through technology is an important way to deliver services to your clients, but working over the Internet can leave your clients’ and your information vulnerable if you do not understand the risks and take proper safeguards.
In terms of marketing your practice, several Rules apply to a lawyer’s use of the Internet and social media to promote his or her practice. Under Rule 7.2, you may advertise your services through written and electronic communication, including social media. Of course, you cannot make false or misleading statements about your services pursuant to Rule 7.1, and you must be diligent to initiate communications with prospective clients in compliance with Rule 7.3. Please note that the language of New Hampshire Rules 7.1, 7.2, and 7.3 differs from the corresponding ABA Model Rules of Professional Conduct.
For an analysis on the use of “Group Coupon” or “Daily Deal” services for advertising and providing discounted legal services, see Ethics Committee Advisory Opinion #2013-14/08.
In your advertising and social media interactions, you would be prudent to include a disclaimer that the advertisement does not convey legal advice or create an attorney-client relationship. Such a disclaimer will assist you in defining when a client-lawyer relationship is formed, and mitigate later claims your communications created such a relationship if you did not so intend. See Rule 1.18.
When discussing client matters on social media to promote your practice or otherwise, you must not reveal client confidential information without your client’s informed consent. Rule 1.6, and see Ethics Committee Opinion #2019-20/01. This includes discussions on social media and blog posts, both of which are broadly accessible to the public. Again, technical competence is important in order to understand the privacy settings of a social media or blog post and to understand how far a post can reach.
Keep these obligations to client confidentiality in mind, especially if you are responding to negative online reviews. Although your defense to a poor review from a former client may be that the client had a bad set of facts, was his or her own worst enemy, or that other facts affected the client’s receiving a pleasing result, you cannot disclose those details of the representation. Rules 1.6 and 1.9. If the adverse review was posted anonymously, as they often are, giving additional details that identify the former client in your response would violate Rule 1.6.
In Formal Opinion 2014-200, the Pennsylvania Bar Association provides a sample response to a negative online review: “A lawyer’s duty to keep client confidences has few exceptions and in an abundance of caution I do not feel at liberty to respond in a point-by-point fashion in this forum. Suffice it to say that I do not believe that the post presents a fair and accurate picture of the events.” Pa. Bar Ass’n Ethics Comm., Formal Op. 2014-200 (2014). For additional discussion of a lawyer’s ethical responsibilities in responding to false accusations online, see the 2014 Ethics Corner Article “Can Lawyers Respond to False Accusations Online?”
It is important to stay connected, and technology and social media are great tools to deliver client services and grow your practice. Be sure to understand these tools, however, and keep in mind your ethical obligations to your clients and colleagues.