Since February is the month where thoughts turn to romance, love, and relationships I thought it would be a good time to review some of the issues concerning one of the lawyer’s most important relationships – attorney-client – and how it is formed and affected by current online and social media technology. This 7-tip list is not exhaustive but it is a good place to start.
1. Online relationships happen and are very real.
Legal clients (current, former, and prospective) are changing the way they communicate and the way they transact business thanks in great part to the new communication technologies that are available. A number of studies have also revealed that for the millennial generation there is no real distinction between “real and digital interactions.” This is important to note because it means that these clients may “assume” that the relationship with you as an attorney has occurred because of an online interaction that they had with you – however brief and inmemorable it may have been to you. Consider that they find not only their lawyer online but in many cases also their significant other. In their minds if that most special of relationships can be formed online, why wouldn’t an attorney-client relationship form as well? So the relationship can be very “real” for them and in most of our jurisdictions, it is the client’s expectations that largely determine whether an attorney-client relationship has formed.
2. An attorney can have more than one type of online relationship.
Current, former, and prospective clients are not the only relationships that can involve you as a lawyer. Relationships with co-counsel, opposing counsel, judges, peer attorneys, media, and others can be formed as well. Many of these carry their own set of duties and responsibilities – for example, with judges and opposing counsel Model Rules prohibit ex-parte communications. (ABA Rule 2.9). And what about the case when a former, current, or prospective client is no longer a client but just a friend?
3. Online relationships have benefits.
- Attract Clients – Marketing
- Establish a reputation/Showcase Expertise
- Drive traffic to website
- Get more media attention/speaking engagements
- Network & Build/maintain strategic relationships
- Identify and take advantage of new opportunities
- Locate information to support your practice
- Competitive intelligence and customer feedback
- Build brand awareness and recognition.
- Communication/Information distribution/sharing amongst attorneys
- Find a new position
4. Online relationships have consequences.
When an attorney-client relationship is formed, the attorney owes a set of duties to the client – from confidentiality (ABA Rule 1.6) to competence of representation (ABA Rule 1.1). Not recognizing that a relationship has been formed an attorney can be in violation of the rules without knowing it and subject to discipline up to disbarment. Additional ABA Rules relevant to this are:
- 1(a) Truthfulness in Statements to Others
- 1 Responsibilities of a Partner or Supervisory Lawyer
- 3 Responsibilities Regarding Nonlawyer Assistance
- 5 Unauthorized Practice of Law
- 4(c) Misconduct
5. Online relationships have rules.
6. Online relationships can be prevented.
There are a number of opinions from different state bars regarding how an unintended attorney-client relationship can be prevented from forming online. Disclaimers informing online visitors to your legal website or social media account that information you post is “legal information for general purposes” and not “legal advice” have been upheld but in some jurisdictions that is not enough to cover you. Adding that “information” submitted by email is not considered “confidential” and does not form an “attorney-client relationship” is also recommended. Many law firms have implemented a speed bump – a “click” for prospective clients to expressly acknowledge the disclaimers before their email can be sent. Also keep in mind that if you do legal speaking to include disclaimers in your presentation materials. This way if you are using LinkedIn’s service “Slideshare” (or similar service) and uploading your information, the disclaimer is automatically included for anyone who views your presentation.
7. Online relationships are like offline relationships in many ways.
I always remind my clients that a good rule of thumb is that “if you can’t do it offline, you can’t do it online either.” An online inquiry can be considered the start of what could become a relationship – whether formal with a client – or professional with a legal colleague. But we usually want to make the relationship official by bringing it offline. Meeting face-to-face, interacting personally with the client or other party, nurturing the relationship through periodic offline (and online) contact can make a difference in managing the expectations a client (or prospective) client may have about the relationship they have with their attorney. Don’t betray their trust by posting information about them without clear consent – in writing. I know of some colleagues who now include a “social media release addendum” to their engagement letters. But it is still a good idea to ask before posting, since that release could have been signed months or even years prior at the start of the matter or with a different lawyer in the same firm.
Many of the relationships you form online – with clients or legal colleagues – can be considered business relationships so good business relationship building is a great skill to learn and master. A wonderful quick reference checklist is Murray Newlands’ “12 Tips for Creating Meaningful Business Relationships Online”. Although it is not specific to lawyers it is a good reminder of some interpersonal basics we should remember. After all our clients – as well as other attorneys – are just people too.