This post by Jim Rhyner, worldwide lawyers professional liability insurance product manager, Chubb Group of Insurance Companies, is one of a continuing series of guest posts on CounseltoCounsel. Special thanks to Jim for his continued contributions.
As Steve has often noted here, Web 2.0 platforms like Twitter and LinkedIn present significant opportunities for networking and marketing in the legal field. They can also be valuable learning tools by providing connections with savvy professionals who share news and insights relevant to your practice area. But as is the case with many forms of cyber-communication, the world of social media is far from being a risk-free zone. One of the biggest potential problems for lawyers engaging in this space is communicating in a way that could be construed as providing legal counsel.
As any attorney knows, providing legal advice outside the confines of an established attorney-client relationship creates malpractice risk exposures. The instinct of an attorney to offer his or her legal insight to an online discussion or to throw a â€œhelpfulâ€ word of advice to Twitter followers or other online connections is a tempting practice when participating in online communities. It may be difficult for lawyers to stifle their intuitive response to answer questions or offer advice when a problem is presented which they can easily help solve. But it’s vital to recognize that dispensing advice on a social networking platform could cause that lawyer just as much trouble (or arguably more), as if he were providing casual legal counsel to any individual outside of the formal attorney-client relationship. The true downside of legal commentary via social networking is the vast, potentially limitless audience of would-be â€œclientsâ€ who may claim reliance on such â€œlegal adviceâ€.
Further complicating the issue, online communication can be a gray area because a lawyer may not know where the recipient of the communication is physically located; this brings the issue of unauthorized practice of law to the fore if the attorney is not licensed in that jurisdiction. Communicating online could also unknowingly expose attorneys to conflicts of interest. For example, a lawyer may be talking online with a client’s competitor or adversary, but since all he can see is a user name, there’s no way of knowing whose interests he’s serving by offering his legal insight blindly.
Even utilizing a blog for marketing or informational purposes, or commentary on industry news, may pose some challenges. Clearly, the prudent attorney is wise enough to steer away from committing copyright infringement or making defamatory statements online. But, many an otherwise savvy counsel may be unaware that some State Bar Associations have rules governing law firm advertising and blogging, particularly for out of state attorneys. In addition, any communication that adopts a â€œQ&Aâ€ format should be approached with caution.