Real-time conversations between attorneys and virtual strangers on the Internet are increasing. However, as more people find themselves "life casting" on social networks such as Twitter and Facebook, lawyers should beware of the potential ethical risks of joining in.
Twitter and Facebook let you connect with people you know - and those you'd like to know. Such online services are engineered to collect data on their users and then make personalized recommendations of specific people to "follow" or "friend." When someone follows your posts on Twitter, that recipient will likely review your profile, which raises a novel issue: When does merely identifying yourself as an attorney and discussing legal issues in your updates cross the line into attorney advertising?
According to State Bar Ethics Opinion No. 2001-155, attorney websites are "communications" under Rule 1-400(A) and "advertisements" under Business and Professions Code sections 6157 to 6158.3, because a website (1) "concerns the firm's availability for professional employment" and (2) "is directed to the general public."
Depending on the attorney's privacy settings and expressed eagerness for new clients, a Twitter profile may qualify as a communication under the rule even though not all Twitter updates are public or can describe a full offering of legal services within the 140-character limit. It's best to emphasize social matters, rather than business, in your Twitter profile because as a communication a profile must comply with Rule 1-400(D) and Standards under Rule 1-400. The communication must not be false or misleading (Rules 1-400(D)(1)-(3)), and it must indicate expressly, or by context, that it's a communication (Rule 1-400(D)(4)).
Also, Rule 1-400(F) requires that records of communications be kept for two years and made available to the State Bar on request. But it's difficult to keep a record of rapid-fire, real-time communication. Though Twitter is a great place to discuss legal news, you should confine discussions of your actual practice to your website or blog - they're better records of online communication.
When does just being friendly become a solicitation? In a common Twitter scenario, somebody "tweets" a legal question followed by "Please RT [Retweet]!" Although your response can be no longer than 140 characters, that may be enough room to violate your ethical duties as an attorney in California. Assuming that you follow many Twitter users who are not family members or existing clients, your well-intentioned Tweets may qualify as prohibited "solicitations."
California's rules regarding real-time electronic contacts differ from the ABA Model Rules, which the State Bar has not adopted. ABA Model Rule 7.3 expressly forbids using real-time electronic communications to solicit business directly from potential clients. By contrast, the California Bar restricts solicitations to the communications defined in its Rule 1-400(C), which states that an attorney website isn't a solicitation because it's neither (a) by telephone or in person, nor (b) directed to a person the member knew to be represented by counsel. Because California courts look to the ABA Model Rules for guidance only where they don't conflict with California's, you may be in the clear with purely intrastate Tweets - for now.
Lawyering over social networks could mean attorneys are practicing in a jurisdiction where they're not licensed. The State Bar notes that because "the Internet makes cross-jurisdictional practice easier ... attorneys should be especially sensitive to the rules of other jurisdictions if they ... seek clients or provide legal services in another state."
The State Bar's reasoning suggests that its policy on real-time electronic contacts is ripe for revision. First, services like Twitter lack the mechanical time-delay and record-making abilities that persuaded the Bar to distinguish email from telephone or real life conversations (the error messages "Twitter is over capacity" and "Fail Whale" likely don't count). Second, a Twitter interchange, unlike static website content, often is directed at a particular individual and just as likely to be initiated by the attorney as by the person seeking advice.
Twitter-lawyering may also implicate the duties of confidentiality, competency, and loyalty. Any user with a public Twitter feed can access other public Twitter conversations. And because a lawyer's duty of confidentiality can precede formal engagement of a client, attorneys asking questions in a Twitter conversation may violate their duty "to preserve the secrets" of potential clients. Also, be careful with threaded conversations: A public back-and-forth on someone's Facebook "wall" could put onto a public forum what should be private conversations or, potentially, legal strategizing.
Answering specific legal questions over Twitter also may cross the line into giving legal advice. To avoid this pitfall, one practitioner recommends including the disclaimer, "This information is given for legal education only. It may not work for your specific situation. It is not legal advice, and I am not your lawyer. You have to find your own local lawyer to get legal advice and help with your problem." There's one small hitch: It won't fit within the Twitter character limit. In the end, attorneys must understand ethics fundamentals, not merely memorize rote rules.
Real-time networks such as Twitter and Facebook can make legal services accessible to many people at low cost. But State Bar ethics opinions don't always keep up with the panoply of technological options. Emerging social networks such as Quora invite issue-area experts to chime in on questions posed by the network's users. This new forum seems ripe for attorneys' participation, yet it takes them down the ethics rabbit hole once again. For the present, tech-savvy Bar members can play it safe by "following" the spirit of the Bar's previous guidance and the ABA Model Rules - along with all those interesting Tweeters.
Lisa J. Borodkin has a private practice in Los Angeles specializing in Internet and entertainment law. Christina M. Gagnier in Chino is the managing partner of Gagnier Margossian's digital strategy consultancy and leads its IP and Technology law practice.