By Cindy Courtney, D4 Vice President and General Counsel
There are those who can mesmerize a crowd when speaking right after lunch at a conference, and those who should be forever banned from doing so. Stuart Teicher is in the former category. His presentation on the second day of the Georgetown eDiscovery Institute was informative, timely, and most of all, very, very funny. His topic –not strictly in the cross-hairs of an eDiscovery conference’s subject area—was Ethical Pitfalls of Social Media.
Teicher cited six reasons why lawyers must understand social media in order to meet their ethical obligations:
- The ethics rules demand that we understand it.
- Social media provides new ways for lawyers to get in trouble.
- Social media is being used in the substantive practice of law.
- There are hidden and not-so-hidden perils for lawyers in their personal use of social media.
- Our competition is using it.
- We are getting dragged into it whether we want to or not.
Building on these points and noting that in movies, music or lighting warns us that something bad is about to happen, Teicher informed the crowd that “there is no sound track for life.” Nothing warns us that our use of social media possibly violates the rules of ethics. Lawyers must have a “heightened state of awareness” about the perils of social media. Fortunately, he is here to help us.
Teicher’s own rule: Don’t do anything stupid. For example, don’t post on Facebook about a Pitbull attack on a Corgi in your neighborhood and your plans to represent the Corgi owner. You just violated Rule 1.6 requiring confidentiality and you may also have waived the attorney client privilege. Another example: Set up rules that will discourage your receptionist from tweeting that a famous CEO made a visit to the law office, potentially tipping off all her friends that a big merger is about to go down. That violates Rule 5.3, which requires lawyers to supervise non-lawyer staff. Can you “friend” a witness in your case in order to find out her views on the case? Not without violating Rule 8.4, which prohibits using deceit—unless, that is, you are completely up front about why you are “friending” this person.
What about a banner that appears on your Facebook page that states you are an expert bankruptcy lawyer, but doesn’t include the statutorily required name and telephone number of a person at your firm who can verify your information? Does that violate Rule 7.1 prohibiting false or misleading statements about your services, if the banner was placed there by the Yellow Pages, whose contract includes fine print allowing them to use your information in this manner? As Teicher notes, ethics rules are having a hard time keeping up with the ins and outs of social media—yet another reason why we need to pay attention to it.
Teicher has a blog called Stuart Teicher—Helping Lawyers Stay out of Trouble. Based on his presentation—or his performance, if you will—at Georgetown EDI, I will be reading his blog and following him on Facebook, Twitter and LinkedIn—along with any other social media sites he inhabits.