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MSBA session: Be vigilant on social media

(Flickr / Jason Howie / "Instagram and other Social Media Apps" / CC BY 2.0 / cropped and resized")

(Flickr / Jason Howie / “Instagram and other Social Media Apps” / CC BY 2.0 / cropped and resized”)

OCEAN  CITY — While some judges and lawyers may choose to stay off of social media, they still have to stay on top of Twitter, Facebook and the like to protect themselves and their clients, a panel of attorneys warned on Thursday at the Maryland State Bar Association’s Annual Meeting.

“There’s a duty being put on lawyers to know what’s out there,” said Erin A. Risch of Eccleston & Wolf PC in Hanover.

 

There are a variety of ways internet communications can impact the practice of law.

In April, the Maryland Lawyers’ Rule of Professional Conduct 19-307.4 was amended to let lawyers call themselves “specialists” when advertising services, but that still puts lawyers on the hook for false advertising. That means lawyers cannot have a website such as “MostAggressiveLawyer.com.”

“The burden is on the attorney to prove affirmative statements,” said Lydia E. Lawless, senior assistant bar counsel, meaning any statement must be backed up by the lawyer’s track record or legitimate testimony. Even so, the Attorney Grievance Commission is never on board with a lawyer using superlative statements like “most aggressive.”

The panel, which also included Chief Judge John P. Morrissey of the District Court of Maryland; l and Jennifer L. Thompson, assistant bar counsel, also advised attorneys to talk to their clients about social media use.

Many attendees at Thursday’s session raised their hands when asked if they had ever seen damning Facebook photos used against clients. In some cases, those photos were posted by the client’s other friends.

Risch recommended putting language in retainer agreements to dissuade clients from posting legal advice they received from their lawyer, something that happens in family law cases. Such social media posts could also blow attorney-client privilege, she said.

With a lot electronic correspondence taking place on smartphones, lawyers are tempted to quickly respond to emails which could lead to serious errors, particularly when using “reply all” or “forward.” Risch recalled getting an email from opposing counsel that included an email chain between that attorney and his client.

“Just because we can, doesn’t mean we have to respond right then,” she said. “You just need to take a minute and be careful.”

When using cloud-based servers, the panelists advised attorneys to read the terms of service to know how the information is protected.

“If something that does happen, you need to be able to show that you knew what you were doing with your confidential information,” Risch said.

Attorneys were also advised to keep texting conversations with clients limited to small, logistical issues, and not substantive case matters. Casual abbreviations cause confusion and ambiguity, and texts are difficult to recover from phone companies.

“Things like that are not something you can rely upon,” Risch said.

Former Bar Counsel Glenn Grossman moderated the panel.

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