Recently some lawyers have made front-page news by engaging in a wide variety of online foolishness. Their conduct has resulted in lawsuits, discipline and even prosecutions. It has also undermined reputations and relationships with clients. What’s more, it’s the law firm, not the insurer, who typically must pay the bill.
When lawyers get in trouble online, their actions often are not covered by professional liability policies, which generally only cover problems with “professional services.” Thus, the lawyers or firms must pay all legal costs, settlements and damages from their own funds.
To help you and your firm avoid such potentially expensive and distracting online foibles, following are 12 tips for minimizing liability exposure. Note that while I reference the ABA Model Rules of Professional Conduct, the law in various jurisdictions may differ in material ways.
1. Write only what is true. Ethics rules—in particular Model Rules 4.1, 7.1 and 8.4—require lawyers to avoid misrepresentations. These requirements apply to communications including Web sites, chat room posts and blog comments.
More dangerous for professional liability purposes are misstatements that exaggerate a lawyer’s experience and abilities. Individuals making claims against lawyers often use online boasting as exhibits in depositions and cases to suggest the lawyer was dishonest or misled a client, perhaps in support of a fraud claim or to suggest the lawyer is lying about other matters.
One common misstatement is listing practice areas in which the lawyer does not actually practice. False claims of expertise can be particularly damaging in a malpractice case. In addition, underwriters sometimes review law firm sites to see if the practices described (and corresponding risks) match information listed in an application. Inconsistencies between a firm site and application may affect the availability and cost of professional liability insurance. Listing a practice on a Web site but not on an insurance application may also impact insurability for claims arising from that practice.
2. Don’t write about clients without consent. Ethics rules and fiduciary obligations limit what a lawyer may say about a representation without a client’s consent. Perhaps the most (in)famous example involved an Illinois public defender who blogged about her criminal defendant clients. This and related conduct resulted in a 60-day suspension.
Such stories should cause lawyers to pause before writing anything about clients or client matters. Lawyers should also run conflict checks before posting materials about pending legal matters to ensure their firm does not represent a party involved in the matter.
Read more...American Bar Association