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Suggestions for Law Firms on Twitter, Part 1: Mind the Ethics Rules

March 2, 2010

The Model Rules of Professional Conduct adopted by almost every state regulate what a lawyer can and cannot communicate about a case. 

Specifically, Model Rule 3.6 forbids lawyers from making “an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.”  The rule allows communication of basic information, like public record, scheduling, or the claim.  Basically, the rule is intended to keep attorneys from prejudicing witnesses or jury pools through the media.  With an increasing number of jurors on Twitter, the likelihood of influence is gaining.  [That said, I wonder how long it will be before attorneys have to cross reference jury pools with their followers, or ask Voir Dire questions about LinkedIn contacts]

The other major rule to keep in mind is Model Rule 1.6, which requires confidentiality.  Lawyers must keep virtually all information about client representation secret.  However, information can be disclosed with a client’s consent.  In other words: Don’t Tweet About Your Representation of Clients!  If You Must, Get Their Permission First!

Every state has rules regulating lawyer advertising.  For example, in Ohio, the Rules of Professional Conduct (Rule 7.1-7.3) regulate direct contact with potential clients including electronic communications.   Some states, like California (Rule 1-400(F)), require advertising be retained for a period of time (two years in California).  This could be cumbersome if tweets are considered ads.  Sure, Twitter stores your tweets, but what if Twitter goes down, or [heaven forbid] shuts down?  While I don’t know of any opinion or rule yet dealing specifically with Twitter as an advertising medium, it might not be far off.

Last, but definitely not least, it is also important that you don’t give legal advice on Twitter.  A lawyer-client relationship is born when an individual seeks and the lawyer gives legal advice in circumstances in which a reasonable person would rely.  You might think it’s unreasonable to rely on advice received on Twitter, and I would agree, but courts err on the side of creating the relationship.  Courts are [rightly] more concerned with protecting the average person than limiting malpractice liability of attorneys.

Part 2: Maintain a Superior Twitter Image

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