Only one bar association that I know of issued an ethics opinion this year on social media and that was focused on jury research. The ABA in August addressed some social media issues in its recommendation 105B which covers when someone reaching out to an attorney for representation actually acquires some client confidentiality protections.
Under these revised rules, much of it depends on how the attorney invites the request from the prospective client. If its completely passive with just an email or phone as contact, then the inquiry from the prospect is unlikely to make him a prospective client where the attorney has a duty in particular to keep whatever information provided to the attorney confidential.
On the other hand, if the attorney invites the prospect to submit information about their issue or case without clear and understandable warnings that to do so, could waive the client’s right to keep the information provided confidential, then that prospect could qualify for some protections of the client confidentiality rules.
But there are a number of issues that still haven’t been satisfactorily addressed such as:
- Do recommendations on social media sites placed by someone other than the attorney, require a testimonial disclaimer that this recommendation doesn’t predict future outcomes?
- What kind of guidance should be given to attorneys, if any, about connecting with clients on LinkedIn or other websites in terms of client confidentiality?
- In the fast paced interactive world of social media, what is the line between legal information and legal advice?
