In the Media
How Associates Can Navigate Risks Of Social Media
Read Time: 8 mins
This article was published on Law360 on July 31, 2024, and is reprinted with permission.
Mid-Law firm leader Michael Ferachi is grateful to have gone to law school in the 1980s, decades before social media could complicate legal career prospects for him and his friends.
“We used to laugh that if we had social media when we were growing up, none of us could have ever been considered for a judgeship,” Ferachi said.
But the misbegotten opinions and foibles of youth are much harder for new attorneys to escape these days.
“Everything online lives forever,” said Ferachi, managing member of McGlinchey Stafford PLLC. “Even if you delete it, social media lives forever and how you feel today may not be how you feel in the future.”
Social media is a powerful marketing tool for attorneys and law practices to disseminate information and connect with potential clients, according to experts. But associates should use social media with extreme caution, weighing any benefits against the effect that their online presence may have on their law firms, practice, clients and future employment.
While all attorneys should carefully consider the content and reach of their social media, experts said this particularly applies to younger associates as they begin to navigate the legal job market, where everything they post can be taken out of context.
“Remember you are a professional in a service industry and nothing you post ever goes away,” said Rachel Demarest Gold, director of the employment law practice at Abrams Fensterman LLP in New York.
The perilous nature of social media on current or future employment is especially acute for Gen Z attorneys as they begin to enter the legal workforce. The first generation to not remember a time before the internet, they are adept at social media platforms like Facebook, Instagram, TikTok, Snapchat and Twitter, now known as X. But growing up with the proliferation of social media has also made some young lawyers and aspiring attorneys far too comfortable sharing their lives and opinions online.
“Associates should remember that there are people who are much older than them who will be looking at these things and will not have the same lens that they had,” Ferachi said.
No Surprises
Experts said associates can avoid employment and legal issues by understanding the implications of their social media and following certain ground rules before posting anything online.
“Using social media can provide numerous benefits for attorneys, but such use can also present challenges,” Shawndra Jones, a New York employment partner at Epstein Becker & Green PC, said in an email. “Online comments, for example, have been considered when reviewing bar admission applications.”
Experts also pointed out that employers may decide to hire or fire job candidates based on their social media presence, a fact that Florida attorney Joseph Lazzarotti frequently tells his teenage daughter. He said employers often hire companies that produce reports on applicants, including “everything you ever did in social media.”
“They don’t want to get surprised,” said Lazzarotti, who heads up the privacy, data and cybersecurity practice group at national employment and labor firm Jackson Lewis PC. “I’ve helped clients develop social media investigation programs to do just that.”
This is because law firms and other legal employers may see their attorneys’ actions as a reflection of their business, experts said.
“Your intentions aren’t taken into consideration when you have a post that gets you in trouble,” said Krishna Patel, director of the associate practice group at legal recruiting firm Major Lindsey & Africa.
Why Law Firms and Clients Care
Social media can create a veritable can of worms for law firms who employ people with diverse opinions and represent an array of clients, experts said. Associates’ social media posts could make law firms question their judgment or whether they are team players.
“All legal issues aside, a law firm is a community of people, and you want people who can work well together, so behavior that is antithetical to their practice focus or mission statement matters,” Gold said. “There is also the fact that being counsel is about sensitivity and confidentiality, and if a candidate’s social media portrays someone who is either insensitive or indiscreet, it raises a concern that those qualities will be brought to bear on their representation.”
And past comments or posts can lead to awkward conversations with clients.
“Companies have to care about their reputations and the message any stance they even seem to be making sends to their clients,” Patel said in an email. “In the legal industry, clients have to pay attention to what their firms are doing because if Twitter gets wind of something, there could be back lash with customers for the company.”
Opposing counsel in litigation matters might even look at attorneys’ social media, particularly if those posts mention clients or businesses involved in the dispute. While those posts may not end up in court documents, clients can still find out and that may impact the firm’s bottom line.
“Who wants to be represented by somebody who had said nasty things about you a few years ago?” Ferachi said.
Associates and aspiring attorneys should be careful posting about companies and individuals that could be their clients down the line, according to experts. Exercising restraint is crucial because associates may not know their firm’s entire client base.
Topics To Avoid
Experts said young lawyers should also avoid posting anything that could be perceived as rude or lead to intense discussion, particularly topics that can get acrimonious.
“Think about those holiday party conversations with family that can get heated versus not and post accordingly,” Patel said.
Associates and other workers should also consider how any post will be seen in several years “without all of the background and context, or on the cover of a magazine or newspaper,” according to Jones. She said a good rule of thumb is asking themselves whether they would post the same statement, photo or video if they knew loved ones would see it or if a friend was going to “screenshot” the content.
“Employees might still post the content, but they will have first considered potential implications outside of the digital world,” Jones said.
Even personal posts, like a TikTok video about sex and dating as a law school grad, can spell trouble if their future employer represents a company that emphasizes family values, for instance.
“You might not care, but a client could care,” Ferachi said.
Minimizing Risks
Patel recalled getting “aggressive feedback from the internet” after posting something herself when she was feeling emotional. She said drafting social media content and waiting 24 hours before pressing send can save associates a lot of grief.
“Think about any potential repercussions you might face and decide, not in the moment when your passion for a cause or topic might be driving you but when you have a moment to think about it calmly, if you really need to weigh in publicly or if your thoughts might be OK to stay with you or discussed with friends,” she said.
Associates should also be careful engaging with posts because their “likes,” comments or reactions can also be misconstrued, according to experts.
The social media platform matters less than the content, although experts said “private” accounts with limited followings are inherently less risky. But even posts that seemingly disappear — like an Instagram story or Snapchat post — can be saved through screenshots.
Some social media technology also comes with inherent security risks, including the potential for data breaches. And content can be mined by bad actors for information to use in phishing scams, guess passwords or create “deepfake” videos.
“Anybody could take that and begin to use it against you,” Lazzarotti said. “The more content that’s out there, the easier it is to create videos and audio.”
Evolving Ethics Guidance
There are also ethics opinions and court standing orders concerning lawyers’ use of certain social media features, according to Jones.
New York’s model rules of professional conduct require attorneys to be aware of both the benefits and risks of technology, especially platforms that store or transmit confidential information.
Some jurisdictions also have more concrete guidelines for attorneys who use social media to avoid real or perceived conflicts of interest, according to experts.
An ethics opinion from the D.C. Bar, for instance, suggests caution “when stating positions on issues, as those stated positions could be adverse to an interest of a client, thus inadvertently creating a conflict.”
And while labor laws in New York protect most legal off-duty speech, this doesn’t apply to discrimination, bias, harassment or other illegal activity, according to Gold. She said “confrontational, hostile, accusatory, or risque content” is especially dicey for law firm employees.
“Clients look up the people they hire, so think about what you would or would not want to find posted by someone who you are about to entrust to handle the most difficult and sensitive issue in your life,” she said in an email.
Social Media Subtleties
Law firms also typically have social media policies that provide specific guidance for employees, so experts stressed that associates should be well-versed in those rules.
And while experts generally agree associates should avoid online discussion about controversial topics like politics, particularly as tensions rise with the approach of the general election, there are nuances.
McGlinchey Stafford’s social media policy notes posts shouldn’t include harmful, insulting or objectionable material about fellow employees and clients, according to Ferachi. So while the firm doesn’t prohibit content about politics, personal attacks against specific politicians aren’t allowed.
“I’m not focused on somebody saying ‘vote Republican’ or ‘vote for Joe Biden,'” Ferachi said. “I’m more concerned about someone saying, ‘Anybody who doesn’t vote for Trump is a loser.'”
Lazzarotti said that content about particular topics within politics will be subject to more scrutiny than others. For instance, discussing the state and local tax deduction is probably a safe topic.
“It’s the salacious topics like gun control, abortion, the Israeli-Palestinian conflict that can be tricky,” Lazzarotti said. “An associate might be able to make some headway and contribute to that discussion… but I think you want to always be mindful of the firm’s policy and your clients.”
Career Consequences
Some associates and young attorneys have already learned this the hard way since Hamas’ attack last fall on Israel sparked the subsequent Israel-Hamas War.
Davis Polk & Wardwell LLP rescinded job offers to three law students who purportedly signed public statements blaming Israel for the Hamas terrorist group’s Oct. 7 attack. Winston & Strawn LLP also yanked a job offer to a former summer associate who the firm said distributed “inflammatory comments” about the attack to the NYU Student Bar Association.
Last November, Foley & Lardner LLP rescinded a job offer to a former summer associate and recent Georgetown University Law Center graduate over public comments about the attack made on social media and elsewhere. In May, she filed a federal discrimination lawsuit accusing Foley & Lardner of letting her go because of her religion and ethnicity, alleging the firm investigated her background and social media posts.
Of course, more seasoned attorneys aren’t immune from such consequences. In 2017, CBS Corp. fired an in-house attorney after she said on Facebook she wasn’t sympathetic to the victims of a Las Vegas mass shooting because “country music fans often are Republican gun toters.”
Gold said she’s personally heard of two associates who were disciplined for their social media.
“One incident was a racist and hateful politically-related post. One was a sexual innuendo directed at a co-worker,” Gold said. “The former was terminated, the latter was suspended, and then the entire staff engaged in training sessions.”
Best practices for social media will continue to evolve as younger attorneys with better understanding of the technology and its benefits begin to take on C-suite positions and leadership roles at law firms, according to experts.
“I think these things are constantly evolving, especially as more attorneys have a ‘side hustle’ and new platforms become popular,” Patel said.
Because social media is becoming more ubiquitous, virtually everyone has an online presence and the content they post “does look its impact,” Ferachi said.“I would still caution young attorneys to be careful,” he said. “Because that one time somebody does care is when it becomes a problem.”