Shari Klevens (left) and Alanna Clair, Dentons. (Courtesy photos)

An attorney shares an article about a high-profile lawsuit against a construction company on his personal Facebook page with a comment: "It's pretty obvious this company is in some big trouble!" The next day, that attorney receives a furious phone call from his law firm's managing partner, saying that the firm was pitching to represent that construction company in the lawsuit. Now, the law firm has lost the opportunity because the company's owner discovered the public social media posting.

"I didn't know we were trying to get that case!" the attorney pleads, but the damage has been done.

While most attorneys recognize the value of social media in promoting their practices, they may not always apply the same level of care when using social media in a supposedly personal capacity. However, attorneys may not be able to simply take their attorney hats off and ignore their ethical obligations when using social media.

As the D.C. bar observed in D.C. Ethics Opinion 370, "[s]ocial networking sites, and social media in general, make it easier to blur the distinctions between communications that are business and those that are personal." Where an attorney's social media account identifies the attorney's profession or even law firm, members of the public may associate any posts made with that law firm, even if the post was made in the attorney's personal capacity. 

Even if the lawyer doesn't identify their firm name in their personal social media, others may be able to find them online and deduce their affiliation. Because of this, it can be hard for attorneys to disassociate from their profession on social media, even for "personal accounts."

One issue implicated by the pervasive use of social media is the possibility that the attorney's social media posts could be seen as creating a "positional" conflict. A positional conflict is one that may exist, for example, if an attorney argues for a certain interpretation of a statute in one lawsuit because it is in the best interests of one client, but then at the same time argues for the opposite interpretation of the same statute in another lawsuit on behalf of a different client. Typically, such conflicting representations are not per se inappropriate unless one representation has an adverse impact on the other, but the bar rules suggest that pursuing conflicting issues before an appellate court could be improper.  

While the Georgia Rules of Professional Conduct address this type of positional conflict (see Comment 9 to Rule 1.7), it is less clear what can happen where the attorney takes one position on behalf of a client but separately argues or expresses support for an opposing position in a personal capacity, which today most commonly could occur on social media.

In Ethics Opinion 370, the District of Columbia Bar stated that attorneys sharing information on social media sites should exercise caution "when stating positions on issues, as those stated positions could be adverse to an interest of a client, thus inadvertently creating a conflict." Indeed, the D.C. bar warned that "[c]ontent of social media posts made by attorneys may contain evidence" of conflicts.

Thus, seemingly innocent social media posts made in a personal capacity could create risk. Although some commentators have suggested that the D.C. bar's opinion has gone too far to limit attorneys, social media posts can nonetheless create sticky client relations issues.  Attorneys can consider the following three tips.

Maintain Professionalism

Social media can be like the Wild West, lacking the decorum that attorneys typically adopt for brief-writing or written correspondence. That does not mean, however, that attorneys can engage in uncivil or unprofessional behavior online.

Sometimes, attorneys post comments on social media that they would never say in a face-to-face conversation, much less one with a client. Therefore, comments on social media can be more problematic than traditional in-person conversations, as social media comments are generally broadcast to the world and can be preserved for posterity. Further, courts and bars are increasingly recognizing that online content is subject to the same bar rules as traditional legal correspondence.

Remain Neutral

Social media is generally not a place for balanced, well-reasoned and detailed assessments of issues. Instead, social media tends to lend itself to quick, visceral reactions to news events. This can sometimes limit an attorney's ability to provide context or nuance to any comment.

Thus, while attorneys may feel the urge to immediately share their thoughts with the world, doing so could create a risk that the attorney's intended context or message is misunderstood. For example, if the U.S. Supreme Court agrees to hear a controversial case, an attorney may be inclined to immediately offer her or his opinion as to the proper result. Even though such a posting would likely not create an actual legal conflict that could give rise to a claim, a client (not involved in the Supreme Court case) certainly may be less than pleased to see its law firm appear to advocate for a position or result that might harm the client's business or legal interests.

While commenting on ongoing cases is inherently risky, attorneys who feel compelled to do so can limit their risks by presenting a balanced analysis. That could help avoid creating any potential positional conflict with the interests of a client of the attorney and her or his law firm.

Take a Breath

The most obvious tip can often be the hardest in practice. Before posting on any substantive issue (e.g., legal or political issues), attorneys can stop and think practically about the post and the possible response from their firms, clients and potential clients. 

As a precaution, it may be a good idea to first run the posting by a colleague or firm leadership to ensure that it does not create any unintended conflicts or client relations issues. Doing so can help ensure that a tweet does not land you in hot water.

Shari L. Klevens is a partner at Dentons in Atlanta and Washington, D.C., and serves on the firm's U.S. board of directors. She represents and advises lawyers and insurers on complex claims and is co-chair of Dentons' global insurance sector team.

Alanna Clair, also a partner at the firm in Washington, focuses on professional liability and insurance defense. Klevens and Clair are co-authors of "The Lawyer's Handbook: Ethics Compliance and Claim Avoidance" and the upcoming 2020 edition of "Georgia Legal Malpractice Law."