The Social Media Frontier: Exploring a New Mandate for Competence in the Practice of Law
52 Pages Posted: 13 Aug 2013 Last revised: 11 Nov 2014
Date Written: August 7, 2013
Attorney Mark O’Mara’s use of social media as part of the defense strategy in the representation of George Zimmerman, who was prosecuted for the death of Trayvon Martin, highlighted the use of social media in the practice of law, and because of the tremendous media coverage of the trial, facilitated a robust conversation on whether the legal profession’s use of social media is the “new normal.” In fact, lawyers’ increasing use of social media is evidenced by a growing body of case law, ethics opinions, and journal articles discussing the propriety of using social media in areas such as investigation, discovery, and jury selection. Nonetheless, social media is often discussed as a slippery slope where only the adventurous among the legal profession are traveling. However, technology and social media are evolving so quickly that lawyers who elect not to participate in social media may be in for a rude awakening. An awakening that makes clear that the requisite level of competence and expertise required to effectively represent clients and avoid disciplinary and malpractice exposure requires an understanding and use of social media and technology in the practice of law. This article will explore the legal profession’s historical relationship with communication technology, relevant legal ethics rules and opinions, court decisions and malpractice concerns, which all support the contention that the use of social media and technology in the practice of law not only has become a required component of effective lawyering, but also that the failure to employ social media may result in the ineffective representation of clients, disciplinary complaints, and/or malpractice claims.
Keywords: social media, Facebook, legal ethics, legal malpractice, attorney competence
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