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Why do so many attorneys get tripped up when it comes to social media and new technologies? Robert Brownstone, counsel at Fenwick & West and chair of its electronic information management group, has given a number of ethics seminars both internally and externally, and thinks the issue isn't laziness or maliciousness, but rather a case of “battle fatigue.”

“I think most lawyers get that they shouldn't be giving legal advice or speaking on behalf of their firm in these settings,” Brownstone said. “I feel like we're inundated with so many things to do and pulled in so many different directions that it's really hard to step back and assess how you're doing and what you're doing.”

But that doesn't mean it isn't an important task to undertake. Brownstone recently sat down with Legaltech News to outline eight dos and don'ts for attorneys and those that manage them to perfect their social media usage.

DO: Make sure you designate your profiles as “attorney advertising.” The strictest ethics rules about attorney advertising are found in the states of California, New York and Washington, Brownstone said. But as a rule of thumb, it's a good idea to make sure it's clear you're speaking for yourself on social media, no matter when you're located.

“If they have any type of substance in their profile on LinkedIn, which pretty much all of us do, we urge them to put somewhere on their profile, 'Attorney Advertising,'” Brownstone said. “We also have them state, which is pretty much the rule across the board, to say, 'I do not give legal advice in my posts, likes or comments.'”

He added that a little risk management can go a long way, explaining, “We urge our lawyers to say they are not speaking on behalf of their firm or their employer. But I do that with clients anyway, whether they're lawyers or not.”

DON'T: Forget about Facebook, where profiles may not be as obvious. Complying with these attorney advertising rules can be relatively simple on Twitter and LinkedIn, where one can simply put a disclaimer in his or her profile. Facebook, though, makes it a little bit tougher to put a disclaimer in a place where it can be seen.

For his own personal profile, Brownstone has gotten around this by inputting a manual “job description” in the current position field, which says, “My posts, likes and comments are on my own behalf, not on behalf of my firm and not legal advice, which I do provide in my work at.” That statement is followed by the normal Facebook link to his employer, Fenwick & West.

Doing this can help avoid putting a disclaimer in every single Facebook post. Brownstone said he hasn't seen a single court decision that has felt a disclaimer on every post was necessary, and if you even tried on Twitter, “you'd quickly run out of characters.”

DO: Anonymize yourself on LinkedIn. One of the most common mistakes he sees on LinkedIn is that many attorneys don't know they can anonymize themselves. Under the “Settings & Privacy” link, then the privacy tab, there are a number of settings that lawyers may want to make private or only visible to people within their network.

Foremost among these are the features allowing other profiles to see when you clicked on them. “If you don't go into your settings in LinkedIn and anonymize yourself, then you're leaving yourself open to other LinkedIn users being able to see that you viewed their profile. It used to be that with a free account, you could not see who viewed your profile, but now even with a free account you can see a certain number of people.”

DON'T: Snoop on LinkedIn profiles without knowing the risks. Especially in litigation, LinkedIn can be a helpful tool for finding information about opposing parties or even jurors. Some jurisdictions, though, could view looking at another profile as a type of barred communication. The New York City bar has come out with two ethics opinions to this effect, Brownstone said, though the ABA has explicitly said that they do not agree with that ruling.

And don't think creating a profile without a name can skirt these rules—“People would still know where you work. So for lawyers, whether you're in-house or at a firm, if somebody knows where you work and they're an adverse party, witness or potential juror, they're going to know that you looked.”

DO: Be curious about new platforms, no matter your age. Some may view social media as a young person's tool. In his experience, though, Brownstone said that isn't always the case: “My experience doing a lot of trainings over the years … I do see both junior and more senior lawyers at the talks, and I feel like their knowledge and/or curiosity is not necessarily correlated with their age.”

He said he's taught at four different law schools in the past decade, “and I found there was a huge range in tech savviness, even in a group of anywhere from eight to 20 students.” Experience also doesn't mean you have to be set in your ways—Brownstone added that perhaps the most tech-savvy person he's seen at his firm has been co-founder Bill Fenwick, and curiosity at the top can go a long way toward making others want to learn.

DON'T: Assume messaging platforms like Slack are fine without retention. With the rise of messaging platforms like Slack or Wickr, Brownstone has seen an uptick in records retention clients not only using Slack and similar platforms, but “in being concerned how long the messages and documents, lists, whatever is being created are in that collaborative environment.”

The main concern for many, he said, is whether the freeform nature of the platform means there are less business communications that will need to be looked back to later. But while it's a case-by-case basis depending on how the platform is used in practice, there at least needs to be some sort of policy in place.

“I parse it with the client in the same way I've looked at other information stores in the past,” Brownstone said. “A rule of thumb is, what's the longest they're really going to look back and need to use something? If it's not very long, I tell people to have a very short timeframe for auto delete.”

DO: Use cloud services without worries of waiving attorney-client privilege. When it comes to the cloud, the main concern Brownstone says he's seen is from in-house attorneys who are concerned whether its use waives attorney-client privilege. In practice, though, that isn't something that should be a worry.

“The consensus of ethics opinions is that it's clearly acceptable to use the cloud, whether you're a law office or a company. If you're a lawyer, as long as you're exercising reasonable care … there's no per se waiver,” he explained.

One of the few times he has seen cloud mean a waiver came in 2017's Harleysville Insurance v. Holding Funeral Home out of Virginia, but even that required a confluence of circumstances—including sending a link to the documents to the other side—to be considered a waiver. And even that case didn't hold up on appeal, he noted.

DON'T: Engage in “sockpuppeting” or anonymous online posting. This one should be obvious, but especially in the age of Yelp or other review services, the temptation is there to post either laudatory reviews for oneself or negative reviews for a competitor. But attorneys shouldn't give into the temptation, Brownstone said, pointing to Whole Foods CEO John Mackey's trouble with the U.S. government following anonymous postings on Yahoo message boards.

Brownstone said that employee training can go a long way in this department. Also, “I urge [companies] to put into their social media use policies that people should not engage in sockpuppeting or pseudonymous or anonymous postings about the company, unless it relates to the terms and conditions of their employment.”