Virginia Lawyers Weekly

VIRGINIA BEACH – A lawyer logs in to an e-mail list for a bar group of which she is a member. Another member posts a hypothetical case that sounds awfully familiar.

Over several days, the lawyer watches opposing counsel in one of her cases try out different theories. The lurking lawyer warns others in her firm to lay low on the listserv. She anticipates the other lawyer’s every move. She doesn’t think he ever caught on to the perils of posting his playbook.

This story is not hypothetical. But the details don’t necessarily allow identification of the parties.

Lawyers need to manage their online presence, whether it’s a presence they actively cultivate through online tools such as e-mail discussion groups, or one that is cobbled together by others.

Whether a lawyer likes it or not, she needs to use online tools to track the electronic echo left by her professional and personal activities.

“Everyone has a profile” online, according to social media consultant Caryn Foster Durham. It’s important to be aware of what’s out there and to take an active interest in managing that profile.

Durham teamed up with Virginia State Bar Assistant Ethics Counsel Leslie Haley June 19 at the Virginia Women Attorneys Association annual meeting to discuss whether Web 2.0 is a “business tool” or a “black hole.”

The answer won’t surprise lawyers: both.

Social networking sites are “a powerful tool” that can help lawyers market their practices, according to Durham. But users do not have to maximize their online presence to maximize their benefit.

“Engage at your own comfort level,” Durham said. It is possible to explore some of the several popular sites she profiled – Facebook, LinkedIn, LexisNexis Connected, Twitter and Legal OnRamp – and to select only as many as you can keep up with, Durham suggested. You may get more mileage from choosing a couple of options you are willing to update regularly, as opposed to dabbling in a variety of formats.

“Keep the personal and professional separate,” advised Durham. Many sites allow you to limit access to certain identified individuals or categories of users.

A lawyer can maintain separate professional and personal Facebook pages, and can even set up a “fanpage” for his law firm, that serves as a “souped-up landing page” for the firm. If you start a firm fanpage, Durham recommends having more than one administrator. “If you put it up and never do anything else with it, it will not serve you well,” she said.

LinkedIn is a popular choice for online professional networking. The site allows professionals to post endorsements they have received from clients or from other professionals.

But online endorsements are subject to the same ethics rules as advertising in other media.

“It’s akin to using client testimonials on the radio or TV,” Haley said in an interview after the VWAA program. “There is no prohibition against using client testimonials,” but a client “can’t say anything the lawyer can’t say.”

A lawyer whose clients have been enthusiastic about the lawyer’s services may invite comments that can be posted as online recommendations, but the statements should be reviewed first by the lawyer for compliance with Virginia’s lawyer advertising rules. For example, a client can express satisfaction with the lawyer’s attention to the case and prompt response to the client, but can’t say anything about the lawyer being “the best” in a certain practice area, or able to achieve a particular result.

Similarly, if “another professional wants to say something positive about you, there is nothing that says you can’t put that on” a profile, but if it is derived from a “social” situation, that gets murky,” Haley told the VWAA audience.

It may be better to ask clients or other professional contacts if you can edit their statements, or request that they rewrite them to conform to the rules on communications about a lawyer’s services.

Sometimes lawyers are not as anonymous as they would like when they are online.

“Many times, you can’t disguise stuff,” even if you try to couch your case in a hypothetical, Haley said. “If you’re putting it out there, chances are likely that someone is going to recognize” the case.

Haley reported getting a call from a prosecutor about a criminal defense lawyer who was blogging about an ongoing case. The defense lawyer did not name the defendant, but there were plenty of other markers – the jurisdiction, the commonwealth’s attorney, facts of the case, and comments by the judge. When Haley contacted the defense lawyer, “he seemed to be surprised” and suggested that old blog entries had been superseded because his blog changed daily.

Even if lawyers are not currently blogging a particular case, they have to keep copies of such electronic media for a year, Haley said.

For lawyers whose Web sites allow contact from potential clients, Haley flagged Legal Ethics Opinion 1842 on handling unsolicited receipt of confidential information over a law firm Web site or via telephone voicemail. If you just list your e-mail address as a contact, with a disclaimer telling potential clients that providing confidential information does not create an attorney-client relationship, there is no duty of confidentiality and conflict analysis.

But watch out if you solicit details about a potential client’s case through a Web site window that suggests the firm will analyze the case, the opinion warns.

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