Kevin O’Keefe’s blog “Real Lawyers Have Blogs” directly responds to the September Paper’s question relating to whether the current Model Rules adequately address the issue of lawyers’ use of social media, or whether new Rules should be written.
In this blog entry, he provides advice to lawyers who want to be sure that their blogs follow the Rules of Professional Conduct in their respective states:
• Don't blow client confidences.
• Don't give legal advice (just general information for education purposes) when speaking among the public.
• Don't do anything where a reasonable person could argue there was an attorney client relationship.
• Don't say anything misleading about your capabilities or any other matter.
• Don't solicit work.
• Don't violate conflict of interest rules.
But is it really that easy? How can a lawyer be certain that they have crossed one of the neatly laid-out rules of ethics that Mr O’Keefe has suggested? Any lawyer, if asked what they remember from Professional Responsibility class in law school, their answer would certainly be: don’t share client confidences and don’t lie to opposing counsel or the court. However, the use of social media presents sticky situations that do not fit neatly into he above categories. Addressed later in this blog is the issue of blogs as attorney advertising.
One thing is certain, however: If asked, many blogging attorneys would not be willing bet their bar license against their blog. Given the choice of potentially violating a rule they were not aware applied to them, or ceasing blogging altogether, lawyers would most likely prefer the latter. Therefore, the question becomes whether the two extremes are necessary (and, for that matter, constitutional). This is the question that the September paper was attempting to address. One of which, I propose, was not answered adequately by Mr. O’Keefe’s neatly packaged response.