All types of social media share a common, defining characteristic: their user-generated content, i.e. blog postings, Facebook profiles, and tweets, are published to a large if not potentially unlimited number of users.

With a simple click of the computer mouse, we can share information that, perhaps, ought not to be shared, and almost everyone has had the experience of sending an email to the wrong recipient or a personal message to an entire group. Even major law firms have had their fair share of inappropriate electronic communications!

The rules for paralegals

Preserving the confidentiality of attorney-client communications is at the very heart of our ethical duties.

According to an opinion of The National Federation of Paralegal Associations (NFPA):

“Paralegals communicating in cyberspace through any form of electronic communication shall maintain and preserve client confidences and secrets.”

And if we refer to the ABA model rules and its comments:¹

“A lawyer must act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer's supervision.”

To date, the courts have ruled that there is a reasonable expectation of privacy in private e-mails.²

But such a conclusion regarding the privacy of e-mails cannot be drawn on list serves and certainly does not exist in other forms of public or quasi-public communications, which, in some cases, are searchable using a variety of Internet search engines.

Thus, if the information communicated is not kept private, a breach of client confidentiality or privilege may arise.³

The risks for paralegals

We all know them too well. Revealing confidential information at work can cause the termination of our contract.

Paralegals who violate their supervising lawyer's duty of confidentiality can subject their supervisors to ethics charges (up to disbarment) and malpractice actions.

Lawyers and paralegals might even be subjected to criminal penalties for revealing confidential information.

What about Linkedin and Facebook?

Through LinkedIn, we connect with other users, who are then added to each other's network. Once connected, we can view all of the connections in each other’s networks, at least indirectly, even if the list is proactively blocked by an individual user.

For example, if Paralegal X connects with Client A, Client A will be able to view all of the users in Paralegal X’s network. Thus, every connection in a user’s network will be able to view who is in the user’s online Rolodex, which could lead to the inadvertent disclosure of an attorney-client relationship. The same risk exists in the context of friend lists in a user’s Facebook profile.

What can paralegals do to protect themselves from a nightmare occurring?

Before using electronic communications at work and at home, ask yourself:

• Is it a work-related communication, or even just the fact that a relationship exists, confidential or could an opposing party discover it during litigation?
• Is this communication an appropriate use of my employer's property?
• Which personal information can be appropriately shared with the world?

And, if in doubt, about the appropriateness of electronically transmitting information, it is probably better to abstain or, at least, to ask for guidance from your supervising attorney.

You can even try to ask your boss for social-media training...

Why not. It may be difficult to imagine that managing partners have an ethical duty to provide social-media training to the paralegal community of their law firms when so many of them have no knowledge in this area themselves. But this could be a good defense to a disciplinary action if a problem arises, so why not try!

¹Rule 1.6 of the ABA Model rules cmt 16.
² See U.S. v. Maxwell, 42 M.J. 568 (US Air Force Ct. Crim.App. 1995) (as to application of Fourth Amendment search and seizure purpose).
³ See Castano v. American Tobacco Company, 896 F. Supp. 590 (E.D.La. 1995); see also Ind. Newspapers, Inc. v. Brodie, 966 A.2d 432, 434 (Md. 2009).

More information:

Margaret M. DiBianca, Ethical Risks Arising from Lawyers' Use of (and Refusal to Use) Social Media, 12 Del. L. Rev. 179 (2011).
Debra Cassens Weiss, Ethics Officials Seeing More Cases from Lawyers’ Online Foibles, ABA J. (May 11, 2010).
NFPA, Informal Ethics and Disciplinary Opinion No. 96-1: What are the ethical implications concerning client confidentiality, if any, of paralegals communicating in cyberspace?
NFPA, Informal Ethics and Disciplinary Opinion No. 96-2: What are the ethical implications concerning the unauthorized practice of law as it relates to paralegals communicating in cyberspace?