Social Media Posting

Lawyers of all vintages use social media. While many lawyers would avoid issuing legal opinions or engaging in harassing conduct online, the risks of social media can be more subtle. For example, an associate's posting of a personal opinion on a news story could potentially be seen by a client and even create a business conflict within the associate's firm. Posting client information online could also breach the duty of confidentiality. Likewise, social media posts about a lawyer's own representations could qualify as a legal advertisement, subject to the restrictions of the Rules of Professional Conduct.

In 2018, the ABA's Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 480, confirming that the obligations of the Rules of Professional Conduct do not vanish online, whether lawyers are posting on their personal social media pages or participating in other online public commentary.

Unauthorized Practice and Moonlighting 

Although the rules vary by state, most states require non-admitted lawyers who have sat for the bar (or whose admission status is pending) to be supervised by an admitted lawyer in the jurisdiction. During that time, flying solo can create risk.

In addition, some law firms—particularly in the times of COVID-19—have migrated their practices online. For associates, there can be risk if they are quarantining in a different jurisdiction than the one in which they are admitted. Typically any risk can be cleared up by including disclaimers or by confirming that the associate's "office" address is the firm's office address (in the jurisdiction where the associate is admitted). Confusion—and potential discipline—can result if an associate incorrectly suggests to the public that they are admitted to practice in the state in which they are residing.

For some law firm associates, the risk may come from moonlighting, that is, taking on a side hustle to help pay outstanding law school loans. For those attorneys who moonlight at another legal services job, there can be complications.

In most jurisdictions, there is nothing per se unethical about moonlighting, but it can muddy the waters for law firm associates, particularly for issues of confidentiality or conflicts. Moonlighting also creates insurance coverage risks. A law firm's insurance policy typically only covers legal services provided for law firm matters and clients. Thus, a moonlighting associate could be left without coverage (and thus, potentially personally liable) for alleged legal malpractice.

Supervising Business Professional Staff

Although associates are often supervised by more senior lawyers, there are still opportunities for associates to delegate work to secretaries, legal assistants, paralegals and other business professional staff. Delegating work to business professionals invokes corresponding duties of oversight and supervision. Under Georgia Rule of Professional Conduct 5.3, lawyers are expected to supervise nonlawyer staff, monitor their activity and implement corrective action when necessary.

Associates managing business professionals also can take care that they are not instructing professional staff to do any tasks that the associates themselves are ethically prohibited from doing. For example, if an associate is not permitted to directly contact a witness, that associate is generally not permitted to instruct their assistant to do so instead. At the end of the day, business professional staff are not subject to professional discipline by the bar, but supervising associates could be held responsible for the conduct of those they supervise.

Being Supervised

A subordinate lawyer has an independent duty to comply with the Rules of Professional Conduct. (Ga. R. Prof'l. Conduct 5.2(a)). "The supervising lawyer told me to do it" does not, by itself, excuse the subordinate lawyer's failure to follow the Rules of Professional Conduct. Law firm associates are still responsible for their own conduct.

If an associate has a question about whether their conduct is outside what is contemplated by the rules, they can discuss with a mentor or the firm's legal risk official (such as the general counsel). Although associates can face direct rebuke from the bar even where they are "following orders," they can also get help to navigate a difficult situation.

Reporting Misconduct

The bar encourages all lawyers—senior lawyers and junior associates alike—to "inform the appropriate professional authority" when they have knowledge of another lawyer committing a violation of the professional rules related to honesty, trustworthiness, or fitness. (Ga. R. Prof'l. Conduct 8.3(a)).

For most situations, the first step for an associate who has concerns about another lawyer's conduct is to discuss with an internal risk manager at the firm (like the general counsel) to seek guidance and to ensure that any such discussions are privileged. Firms can also take steps to develop a culture that encourages disclosures and confirms the firm's expectations of a high standard of ethics. Reporting the misconduct of a fellow lawyer is always a sensitive subject; however, where necessary and appropriate, associates can take steps to protect their clients, their firm, and their own reputations.

Shari L. Klevens is a partner at Dentons in Atlanta and Washington, D.C., and serves on the firm's U.S. board of directors. She represents and advises lawyers and insurers on complex claims and is co-chairwoman of Dentons' global insurance sector team.

Alanna Clair, also a partner at the firm in Washington, focuses on professional liability and insurance defense. Klevens and Clair are co-authors of "The Lawyer's Handbook: Ethics Compliance and Claim Avoidance" and the 2020 edition of "Georgia Legal Malpractice Law."