Social Networking: Legal Ethics and Lawyer Liability Considerations
TechnologyFacebook, Twitter, LinkedIn, MySpace: these and other social networking tools on the Internet are being used by people in all walks of life-including lawyers. This article will analyze the potential ethical issues that can occur in lawyer use of social networking. Most of the issues are variations on old themes, but may not be obvious at first glance.
Opposition Research
Lawyers long ago turned to the Internet to research opponents. Googling a person or a company to find out what is quickly available has become common place. Indeed, it might even be malpractice in some cases not to check. What about checking social networking sites for useful information?
A recent opinion by the Philadelphia Bar Association addresses investigation of a witness by looking at their Facebook page. In the scenario addressed in the opinion, a lawyer wants to ask a third party to send a friend request to the subject of the investigation. In Facebook, certain information may be available only to “friends” of a person. The opinion concluded that the lawyer could not participate in the investigation. The ruling was based on Pennsylvania’s equivalents of ABA Model Rules 8.4 (deceit), 4.1 (truthfulness in statements to others) and 5.3 (responsibilities with regard to non-lawyer assistants).
It should be noted that Facebook has various levels of security settings, and in other scenarios it is conceivable that Facebook research would be perfectly acceptable. For example, if a person is within the investigators “network,” such as in the same city, it is possible that significant personal information will be available depending on the privacy settings of the investigation target.
“Friends”, Communications and Conflicts
Two opinions have raise issues about judges’ friending lawyers before their court on Facebook. In the first situation, a North Carolina judge was reprimanded for friending a lawyer on Facebook and accessing the website of an opposing lawyer. The judge and one of the lawyers in the case exchanged messages about the case, which the judge revealed to the other lawyer the next day. The judge also referenced a poem he found on the second lawyer’s clients website during a hearing. The judge recused himself at the request of the second lawyer. The judge was reprimanded for the ex parte communications and for independent fact gathering.
Following the North Carolina opinion, the Florida Judicial Ethics Advisory Committee recently indicated that judges and lawyers should not friend each other on Facebook, though judges can have lawyers as “fans” on a campaign page during judicial elections. The committee was not unanimous, with some members of the committee noting that becoming a friend on Facebook is truly only indicative of contact or acquaintance, rather than true friendship.
These two situations with judges highlight several of the problems that could arise for lawyers generally with indiscriminate use of Facebook and other social networking sites. First, social networks facilitate communication, and all the rules that apply to communication generally will apply in a social networking context. Confidential information should not be shared with a client on a social networking site unless the lawyer has taken precaution to assure that only the client sees the information. Communication with other parties represented by clients regarding the subject matter of the representation is prohibited by ABA Model Rule 4.2.
Facebook may create evidence that could be used against a lawyer in conflict matters. For example, if a lawyer is engaged in dual representation, and the lawyer is communicating with one of the clients as a friend through Twitter, that might be indicative of a closer relationship and of a tendency to favor the Twitter client. Of course, “friends” on Facebook may be no more that mere acquaintances, but there is no guarantee that a jury will understand the distinction.
Social Networking as Advertising
Social networking is becoming an integral part of advertising. The front page of the LinkedIn website says that “(o)ver 50 million professionals use LinkedIn to exchange information, ideas and opportunities.” Facebook fan pages and Twitter feeds are used to reach the audience of potential clients that uses these tools. Lawyers face a number of restrictions on advertising that may affect their use of social networks such as these.
In Texas, law firm advertising, including web advertising, generally must be submitted to the Advertising Review Committee. A recent rule requires attorney or law firm videos uploaded to YouTube, MySpace and Facebook to be submitted to the Advertising Review Committee. See http://www.texasbar.com/Template.cfm?Section=Advertising_Review
At this time, there is no specific ruling on whether written posts to social networking websites must be submitted. Many social networking pages have the potential to qualify as “a single or multiple page file, posted on a computer server, which describes a lawyer or law firm’s practice or qualifications, to which public access is provided through publication of a uniform resource locator (URL)” under Rule 7.07 of the Texas Disciplinary Rules of Professional Conduct. From a malpractice perspective, keep in mind the possibility that posts on social networking sites that may be seen by clients could be evidence of how the lawyer represented their qualifications and experience.
General Rules of Online Behavior
While technology is changing rapidly, most of the ethical issues concerning the Internet have analogous counterparts that have been thoroughly analyzed over the years. Heeding the lessons of these rules may well help lawyer avoid problems online. The key concepts to keep in mind are these:
- Understand how secure client communications are. Avoiding revelation of client confidences is a key lawyer responsibility. Some communications on social networking sites may be subject to an expectation of privacy, but most cannot. Email is generally secure in transmission, but the confidentiality to be expected can vary once stored on a computer. Social networking often results in spontaneous, emotional messages, and when the subject of the messages is work for a client confidences may be divulged.
- Understand the difference between rendering legal advice and providing general legal information.When a lawyer receives specific facts from a person, and then gives an opinion as to how to proceed, the lawyer’s comments can be considered legal advice which may imply an attorney client relationship. This was called the cocktail party advice scenario before the Internet. With sufficient qualification, it may be possible to give only general legal information which the recipient should understand may or may not apply to their situation. Ideally, however, to avoid the possibility of confusion, it is best to keep all legal discussions formal with people who might later claim to be clients.
- Avoid discussion of ongoing client matters except with those who are critical to the representation. If you post details about how your current case is going, or let off steam about clients in an online forum, you may have your words come back to haunt you. You wouldn’t discuss your case in a bar with strangers, and you shouldn’t discuss it on a social network.
- Avoid contact with adverse parties represented by counsel and limit discussions with unrepresented parties. As the judge cases indicate, Internet contact is often just like directly speaking to someone. Communicating with parties represented by counsel through a different medium is still communication. Unrepresented parties enjoy special protections under the disciplinary rules. A lawyer who does not represent a party cannot give them advice, except the advice to seek counsel. That rule doesn’t change on the Internet.
- Seemingly extraneous facts often influence malpractice cases. Just as a sloppy appearance in court can lose a case for a client, a sloppy online appearance may influence a jury against a lawyer in a malpractice case.Act as if your internet presence will be researched, and used against you if possible.
- Be honest. Honesty is required by the disciplinary rules, and by common everyday ethics. Misrepresentation or using a false identity online in order to obtain Internet information is no different than doing the same thing in person.
