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Thursday, December 08, 2016

The Ethics of Talking Politics Online

Several years ago I did a short ABA piece with ten tips for maintaining professionalism online. Tip eight used to be a simple one: Steer clear of politics. Based on how we use social media these days, however, tip eight seems antiquated. "Politics" now casts a wide net and has staked its claim, front and center, on social media. 

But political statements on social media are not just a matter of professionalism. They may give rise to ethics issues. For practitioners, taking a stance online on specific issues could create a conflict of interest, at least according to a November legal ethics opinion by the Washington, D.C. Bar.  Model Rule 1.7 states that a lawyer has a positional conflict when the lawyer's professional judgment may be adversely affected by the lawyer's personal interest. According to the D.C. Bar, when using social media, "[c]aution should be exercised when stating positions on issues, as those stated positions could be adverse to an interest of a client, thus inadvertently creating a conflict." This opinion suggests that online political statements could be used to show a lawyer's conflicting personal interest, an issue that becomes particularly relevant as political posts dominate social media.

Potential pitfalls also exist for judges and professors.

For judges, political statements may show a lack of impartiality. A South Carolina judge was suspended last month in part because his public Facebook profile contained "extensive political posts, including ones in which he appears to endorse the presidential candidacy of one candidate." But for law professors who don't practice law, the legal ethics concerns are not as great. Nonetheless, professors must also maintain professional integrity, and extreme online conduct may contribute to dismissal (as was the case for an Oberlin College professor last month). Institutions are trying to define the boundaries of acceptable social media activity by professors, keeping in mind academic freedom. 

It's important to remember that a lawyer is not endorsing the client's political stance just by representing them, and lawyers certainly are entitled to have personal beliefs that differ from their client's. Civic involvement in general is a good thing; too many restrictions stifle engagement. But balance and civility often get lost in the bottomless pit of Timeline back-and-forths and tweetstorms. Toning down (or abstaining altogether) may be necessary.

I still use my ten tips when I present on social media ethics to practitioners and students. But going forward, my tip on politics may need to be updated from "steer clear" to "tread lightly," with a major caveat about positional conflicts. And it looks like I have yet another social media example to discuss in next semester's Legal Ethics course.

Posted by Agnieszka McPeak on December 8, 2016 at 09:30 AM in Information and Technology, Web/Tech | Permalink


It might not be totally germane, but the Hatch Act -- with broad reach to even lower level employees -- comes to mind too.

Posted by: Joe | Dec 8, 2016 1:14:43 PM

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