Social Media vs. Client Confidentiality

Michael Downey’s article in the most recent issue of the ABA Law Practice Management’s Law Practice magazine raises an issue concerning the effects of social media on client confidentiality:

[T]he constant push for lawyers to post Internet content—blogging, tweeting and the like—substantially increases the risks to client information.

A great illustration of a lawyer generating Internet content to attract clients is Hunter v. Virginia State Bar, No. 121472 (Va. Feb. 28, 2013). In Hunter, a lawyer blogged about criminal cases he handled for clients without the clients’ permission.

A hearing panel found this unethical, but the Virginia Supreme Court reversed, concluding that a lawyer could report on publicly disclosed information at a client’s criminal proceeding without client consent. “To the extent [this] information is aired in a public forum,” the Hunter court explained, “privacy considerations must yield to First Amendment protections.”

Sign of the future? Hunter’s holding may be rejected as unpersuasive by other courts. Yet Hunter serves as a powerful reminder that lawyers and law firms may be inclined to promote their firms by revealing client confidences.

No doubt, social media create new ways in which lawyers can commit ethics violations, and new opportunities for them to do so. However, these pressures are not qualitatively different from those of years past. Unethical lawyers could always breach client confidences in articles, speeches, or even informal marketing pitches. Ethical lawyers didn’t then and won’t now.

Awareness of any intensified risks is great, and I commend Mr. Downey, but let’s be careful to avoid letting welcome conscience-raising descend into what Kevin O’Keefe has correctly described as “lawyers scaring lawyers from using social media.”

Lawyers and “Ghost Blogging”

Jim Calloway, Kevin O’Keefe and Sharon Nelson share opinions on the ethics of lawyer blogs using material not written by the lawyer, also known as “ghost blogging” a Digital Edge Podcast entitled Lawyers Swarm to Ghost Blogging, But is it Ethical? Digital Edge Podcast.

I don’t have a giant problem with law firms using marketing materials written by others. Vendors have been providing such materials for decades. To the degree a lawyer is presenting the blog as representing his unique insights, ghost blogging might be problematic in some situations.

Rethinking Need for Lawyer Encryption

Episode 104 of the  Kennedy-Mighell Report deals with a timely topic: “In Light of NSA Surveillance, Should Lawyers Encrypt?” Dennis Kennedy notes:

Lawyers have struggled with the notion of encryption over the years for historical and practical reasons. We discuss a range of encryption questions and issues, both practical and theoretical. It’s difficult not to feel that lawyers have dropped the ball on encryption and given away an opportunity to be thought leaders on the topic. What do you think about that? We also offer some predictions for the future and I found myself being more optimistic about lawyers’ use of encryption than I had expected to be when we started the podcast.