Social media is ubiquitous in a lawyer’s personal and professional life. What began as a fun way to connect with friends and family is now a tool for law firms to build their “brand” and to connect with potential clients. At the same time, lawyers can create risks in their professional lives depending on what they put online.

There have been many instances of public figures putting their foot in their mouth with unadvisable social media posts. It is clear that no one gets a free pass simply because a post is made in a “personal” capacity. Any posting can have a significant impact regardless of its original intent.

It may be difficult to take off your “attorney hat” when using social media. Even if a lawyer does not identify her or his law firm, as a practical matter it is often easy for clients, opposing counsel and others to locate social media accounts and an attorney’s affiliation using a simple search.

In some circumstances, social media posts can create ethical issues. For example, a 2012 ethics opinion issued by the State Bar of California highlighted the risk that even personal social media posts could run afoul of attorney advertising rules where the posts could be perceived as soliciting clients. There, an attorney posted: “Another great victory in court today! My client is delighted. Who wants to be next?” See State Bar of California Formal Op. No. 2012-186.

Another issue is the potential for posts to be perceived as creating a “positional” conflict. Such conflicts can exist where, for example, a lawyer argues for a certain interpretation of a statute in one lawsuit, because it is in the best interests of one client, but then at the same time argues for the opposite interpretation of the same statute in another lawsuit on behalf of a different client.

Those situations are not typically per se inappropriate unless one representation has an adverse impact on the other, but the bar rules suggest that pursuing conflicting issues before an appellate court could be improper. Comment 6 to Rule 1.7 of the California Rules of Professional Conduct describes factors that may impact whether informed written consent is required where an attorney is taking inconsistent legal positions in different tribunals on behalf of different clients.

This could apply to a lawyer (or the lawyer’s firm) taking one position on behalf of clients, but advocating another position on social media. Whether it constitutes a conflict, or just creates a client relations nightmare for the lawyer, it creates risk.

In addition to addressing conflicts among multiple clients, Rule 1.7 of the California Rules of Professional Conduct also encompasses conflicts between the client’s interests and “the lawyer’s own interests.” Comment 4 to Rule 1.7 further explains that informed consent is required “if there is a significant risk that a lawyer’s ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer’s other responsibilities, interests, or relationships, whether legal, business, financial, professional, or personal.”

Thus, seemingly innocent social media posts made in a personal capacity could create risk. Attorneys can consider the following three tips.

Maintain Decorum

Needless to say, social media is not typically viewed as a forum for thoughtful, carefully crafted posts. Sometimes social media posts seem intended to provoke conflict or strong reactions. In the heat of the moment, lawyers can post comments that they would never make in a professional setting or in a face-to-face conversation.

Worse yet, an insensitive comment on social media is typically broadcast to the world and can be preserved for posterity. Courts and bars are increasingly recognizing that online content is subject to the same bar rules as traditional legal correspondence. Thus, a lawyer could face discipline—or an irate call from a client or colleague—regarding the content of inflammatory social media.

Consider Impact of Taking Sides

While attorneys can (and do) comment on everything, sometimes quick, visceral reactions to news events can lack context or nuance. Thus, while attorneys may feel the urge to immediately share their thoughts with the world, doing so could create a risk that the attorney’s intended context or message is misunderstood.

That is especially true for key developments in the law that may impact current or potential clients. For example, if the U.S. Supreme Court agrees to hear a controversial case, an attorney may be inclined to immediately offer her or his opinion as to the proper result. Even though such a posting would likely not create an actual legal conflict that could give rise to a claim, a client (not involved in the Supreme Court case) certainly may be less than pleased to see its law firm advocating for a position or result that might harm the client’s business or legal interests.

Although commenting on ongoing cases can be inherently risky, attorneys who feel compelled to do so can limit their risks by presenting a balanced analysis. That could help avoid creating any potential positional conflict with the interests of a client of the attorney and her or his law firm.

Get a Second Opinion

The most obvious tip can often be the hardest in practice. Before posting on any substantive issue (e.g., legal or political issues), attorneys can stop and think practically about the post and the possible response from their firms, clients and potential clients.

One good idea is to run a posting by colleagues to ensure it does not create client relations issue and to get a gut check on whether the posting might do more harm than good. Doing so can help ensure that a tweet does not land you in hot water.