New technologies empower your employees to become digital kings and queens, placing the business world at their fingertips. Cell phones keep employees constantly connected to clients across the globe. Social media creates limitless connections to business contacts at the touch of a button. And an ever-expanding array of mobile devices bundle these emerging technologies together, enabling your employees to be lean, mean, business-generating machines. But with great technological power comes even greater corporate responsibility.
Amidst the business landscape lurk legal pitfalls arising from employees’ social media and mobile device use that you, as in-house counsel, must be aware of in order to protect your company. Over the past few months, we’ve introduced critical components to help insulate your company from liability arising out of your employees’ technology use. We offered steps to strengthen your company’s smartphone security to reduce the risk of sensitive information being accessed if your employees’ smartphones fall into the wrong hands. We stressed the importance of social media policies to govern the appropriate use of Facebook and Twitter, and cautioned against requiring employees and applicants to turn over their social media user names and passwords. We also provided simple steps to reduce employee distracted driving while using these technologies in order to limit exposure for distracted-driving lawsuits. But amongst all of the corporate opportunities and risks inherent in an ever-increasing technological world, one concern still hits closest to home for attorneys: ethics.
As social media and technology continue to develop into mainstream mediums to conduct business, gauge competition and promote legal services, in-house attorneys must give careful thought to the ethical implications associated with their employees’ (and their own) technology and social media use. Despite the popularity of these new technologies and the critical impact they may have on our practice, published decisions addressing lawyers’ responsibilities for technology and social media use are still few and far between. The following tips can provide a solid foundation for ethical technology and social media use:
1. Don’t blog, post or comment about legal matters at your company. A Virginia criminal defense attorney was recently charged with misconduct for blogging about cases he litigated. The Virginia State Bar claimed that the blog on his law firm’s website improperly divulged confidential client information and was considered an advertisement rather than an avenue to report on informative news and commentary. We are not aware of any ethical rules that prohibit companies, legal departments or attorneys from operating a blog, as ethics rules generally govern the message, not the medium. But, in-house counsel must be aware of the content posted on these blogs to ensure that confidential information remains confidential and that an individual’s commentary on various legal issues will not adversely affect the company’s business or litigation matters.
2. Ensure that employee social media use complies with your jurisdiction’s ethical rules. While each jurisdiction contains unique rules, interpretations and advisory opinions that clarify the appropriate use of technology for advertising, there are two rules of thumb that should be applied regardless of where your company is located or where your in-house attorneys are practicing:
- Assume your social media pages are governed by bar ethics rules. In Florida, for example, social media profiles promoting the lawyer or law firm’s practice are subject to all of the general regulations for attorney advertising, including prohibitions against any misleading information, which includes references to past results, promises of results and testimonials, and prohibitions against statements characterizing the quality of legal services. Although “personal” social media profiles are not subject to these regulations, it is safer to assume your profile could be considered more than personal if there is any reference to your company or profession.
- Be careful what your “friends” say about you. A lawyer is not responsible for information posted on his page by a third party, unless the lawyer prompts the third party to post the information or the lawyer uses the third party to circumvent the lawyer advertising rules. However, even though a lawyer is not responsible for what a third party posts, he is responsible for monitoring and removing information from his page if the information does not comply with advertising rules. This could include wall posts, comments and re-tweets.
These guidelines provide insight on how ethics rules may apply to social media use in general, but it is critical for you to follow the specific guidelines and ethical opinions that may govern their jurisdiction.
3. Keep your friends close, but maybe not on Facebook. It is common for employees to be friends with your company’s former employees. But you should be particularly mindful of these friendships when litigation arises. A recent bar ethics opinion investigated a lawyer who represented former employees in an employment lawsuit who sent “friend” requests on social media websites to higher-level employees of the opposing party/employer. The opinion found that the friend request violated bar rules prohibiting contact with represented parties and prohibiting a lawyer from engaging in deceitful conduct. It is therefore critical to understand both who your friends and enemies are in litigation, as you may find they are one in the same.
4. Scrub all electronic devices before discarding them. If your employees have ever texted a client from their cell phone, iPhone, Blackberry, laptop, iPad or mobile Facebook messenger application, you have a duty to your company (or client) to have this data removed before any device is discarded. As much as your employees are champing at the bit to have the latest technologies, their interest in these shiny new devices cannot outweigh your ethical responsibilities to protect client confidences.
So, are you ready to disable every smartphone, laptop and social media account at the office in order to comply with these guidelines? Of course not. But being able to spot these ethical issues will ensure you remain an invaluable resource to your company, keep your employees out of hot water and allow you to confidently navigate the confines of your concrete jungle.