BY CARRIE PIXLER & LORI A. HIGUERA
Ethical Challenges Create Need for Law Firm Policies
Social media tools, such as LinkedIn, Facebook and
Twitter, have entered the professional mainstream in the same way
e-mail and the Internet did 15 years ago. Similar to how ethics
committee guidance on e-mail and the Internet lagged behind the
development of electronic communication, new guidelines for
social media tools are barely evolving alongside attorneys’ expand-
ing use of social media.
By exploring the ethical issues implicated by social media now,
attorneys can appreciate the risks and develop appropriate policies
and procedures for using social media to market, communicate and
gather information useful to their law practice.
this issue, attorneys should take a conservative approach and
assume that the retention rules also apply to professional Facebook
These unanswered ethical questions necessitate a considered
policy addressing advertising through social media. Given the
absence of ethics guidance defining the boundaries of marketing
through social media, lawyers should assume that all communica-
tions in which their status as a lawyer is apparent are subject to the
Using Social Media to (Sometimes Unintentionally) Market
Unlike a firm website, which is clearly used by an attorney as an
advertisement, it is difficult to discern what is truly advertising
when information is posted in a social media forum.
Is it an advertisement if an attorney tweets a huge win in a case1
or announces the opening of a new legal practice through a
Facebook status update? If it is an advertisement, then several eth-
ical rules may apply to that seemingly personal communication.
Ethical Rule 7. 2 pertains to advertising specifically. 2 ER 7. 2(c)
requires that the attorney include his or her name and office
address. Is it an ethical rule violation if a professional tweet fails to
include the attorney’s name and address?
ER 7. 1 also is implicated in that attorneys must not communi-
cate false and misleading information relating to their services.
How is it possible to include a complete picture without mislead-
ing when a tweet is limited to 140 characters? 3 One member of the
ABA Commission on Ethics 20/20 Working Group on the
Implications of New Technologies suggests a simple test for deter-
mining whether a social media expression is an advertisement: “If
I’m doing this to help get myself hired, it is an ad.” 4
Arizona Ethics Opinion 97-04 instructs lawyers to retain copies
of their websites for three years. 5 Would the reasoning of this ethics
opinion apply to Facebook pages? Until the Arizona rules address
Creating Inadvertent Attorney–Client Relationships
Social media is certainly a “broadcasting” medium. But it is much
more than that; it is collaborative.
For example, blogs provide a venue for readers to comment.
This feature of social media wherein readers can “talk” to the
authors and each other allows prospective clients to create a dialogue with attorneys. The concern when posting to either a professional legal blog or a personal blog, which conspicuously notes
that the author is an attorney, is that the attorney–blogger inadvertently may develop an attorney–client relationship with a blog
commenter. This unintended consequence could occur if, for
example, an attorney posts a story about a hot legal issue, which a
commenter reads and then discusses with the attorney how the
issues apply to the commenter’s personal situation. An attorney–client relationship may have just been created between the
commenter and the blogger.
Inadvertent attorney–client relationships create the risk of violating multiple ethical rules, specifically ERs 1. 6, 1. 7, and 1. 18. 6
ER 1. 6 generally requires attorneys to maintain client confidences.
ER 1. 7 requires a careful screening to prevent conflicts of interests
between the attorney and his or her current and prospective
clients. ER 1. 18 requires confidentiality when talking with
Although Arizona Ethics Opinion 97-04 was authored more
than a decade ago, it offers helpful guidance for attorneys who
blog or respond to comments from prospective clients
through social media. 7 According to the opinion,
which addresses chat room communications, “Lawyers
should not answer specific legal questions from lay
people through the Internet unless the question presented is of a general nature and the advice given is not
fact-specific.” 8 Thus, blog posts that offer generic
newsletter-like information would not violate the
ethics rules. In contrast, blogging about a specific fact
scenario presented by a commenter might create an
CARRIE PIXLER is an associate with Fennemore Craig and a member of the firm’s
Litigation Section. She practices in the areas of labor and employment, appeals and
professional responsibility. Reach her at email@example.com.
LORI A. HIGUERA is a director in Fennemore Craig’s Litigation Section, regularly providing
counsel to employers on personnel policies, restrictive covenants, employee disability
issues, drug/alcohol testing, and wage and hour issues. She has significant experience
defending employers against allegations of unfair labor practices, employment discrimina-
tion, breach of contract, wrongful discharge and employment-related torts. Reach her