An unprecedented ethical dilemma currently faces the legal profession, how to ethically utilize social media. Lawyers who choose to utilize social media in their legal practice are not provided any ethical guidance on how to properly use social media. Specifically, there are currently no uniform guidelines for state bar examiners to emulate these guidelines from. Existing rules of professional conduct address competence, the duty of confidentiality, and legal advertising but none of these rules address the applicability of each topic to social media usage. Social media usage and the traditional practice of law require different rules, so it is inexcusable for lawyers to be instructed to apply existing rules to their ethical dilemmas. To illustrate the lack of guidance provided to lawyers, one can simply consult the guidance that judges, physicians, pharmacists, and nurses are provided regarding social media usage. To provide guidance that the legal profession desperately desires, the largest bar association in the United States, the American Bar Association (ABA), must create rules that address ethical social media usage and add them to the existing Model Rules of Professional Conduct. This can be accomplished by the ABA addressing competent social media usage, confidentiality when using social media, and using social media without violating advertising and solicitation rules. As a result, state bar regulators can be confident in the guidance provided by the ABA and adopt these rules in their jurisdictions, and legal practitioners will no longer face the ethical pitfalls that currently plague the profession.
Tims, Blake, Unguided: Social Media Usage in the Legal Profession and the Need for Practical Guidance (January 24, 2021).