Mirroring the increase in social networking usage, new and different types of social networking sites/platforms – like the “tumblr” re-blogging services – are proliferating at a similar pace. Complicating matters further, many of these social networking services are now teaming up to allow a single user’s post to be cross-published on multiple social networking platforms/sites, making it increasingly difficult for even sophisticated social networking users to keep track of a their “social footprint”. Accordingly, even if an attorney gains a basic, working understanding of these complex technologies, it may be difficult for the attorney to stay reasonably informed given the surprising speed at which these technologies are progressing.
Given these rapid increases in both the scope and complexity of social networking, it is therefore possible for a lawyer to fall short of “reasonable” competency by not staying informed of a technology that is (potentially) used by a majority of his or her clients. Surely, every lawyer can’t be expected to understand the precise details of this emerging techno-social influence, but some professional guidance on reasonable levels of social networking competency for lawyers must be established to keep all legal professionals informed. This creates an interesting dilemma; even if a technologically unsophisticated lawyer learns the basics of social networking to ensure a basic/reasonable level of competence in this area, he may later fall short of reasonable competency if he does not stay abreast of the rapid developments in this ever-evolving and omnipresent technology. That is, the reasonable competency achieved by a lawyer who learns the basics of social networking may later be inadequate if the lawyer does not stay reasonably informed of the significant changes that frequently occur in this area.
One possible solution to this problem would be to encourage attorneys to participate in social networking. Through this encouraged participation, lawyers would be more frequently and consistently engaged in the evolving realm of social networking. Accordingly, attorneys would stay more informed of changes in the major social networks as they occur, learn about new social networks more quickly, and be better able to understand the ramifications of social networking participation. Thus, attorneys would be better equipped to assess the risks associated with social networking usage.
In order to encourage social networking usage by attorneys (in furtherance of maintaining reasonable competency), ethical rules must be at least clarified and, at most, modified to conform to the speed and unique limitations of social networking communities. As discussed later in this paper, many attorneys are effectively precluded from participating in certain social media networks due to state-specific disclosure requirements and/or the inconsistent application of the rules by state bar associations to certain social media practices/websites. By clarifying how the rules apply to all social networking behavior and modifying/shortening certain preclusive disclaimer requirements to more freely allow social networking communication by attorneys (while still affording a measure of protection to the public) attorneys will be therefore be better equipped to stay reasonably competent as to social networking.
Particularly for older attorneys, who might be less familiar with social networking, there is a strong temptation to rely on younger staff members who might have a better understanding of social networking as a by-product of their generation. While this solution could look adequate for older attorneys not versed in the world of social networking, MR 5.3(b) requires that lawyers make reasonable efforts to ensure that the conduct of subordinates is compatible with the professional obligations of the lawyer. Therefore, if a lawyer does not have a basic understanding of social networking, he/she cannot simply rely on younger staff members to provide this knowledge without potentially violating MR 5.3(b) and/or MR 1.1.
Furthermore, if the attorney does not understand how the rules apply to social networking, he/she may violate MR 5.3(b) by not ensuring the online behavior of his/her subordinates conforms with the professional obligations of the lawyer. As illustrated in the following example, if a subordinate staff member is Facebook friends with a person or persons known to, or employed by, an opposing party, that online relationship and/or the supervising lawyer’s ignorance of the online relationship (and their subsequent inability to seek informed consent of the relationship from the client) might violate the confidentiality of information rules of MR 1.6.