Ethical quandary: The challenges of social networking for lawyers

Social networking is both a professional necessity and an ethical minefield for lawyers, says John G. Browning, managing partner '¨at Lewis Brisbois Bisgaard & Smith

The legal profession’s embrace of social media has evolved from the digital equivalent of a perfunctory handshake to a full-on bear hug of a long-lost friend. Nearly 85 per cent of US law firms are employing social networking platforms like Facebook, Twitter, LinkedIn and YouTube for marketing purposes, a recent survey has found.

In an age in which everyone seems to be sharing details of their lives online, lawyers are flocking to social networking sites as digital treasure troves to be mined for discovery in all types of litigation.

Social media brings new causes of action (libel by Twitter, anyone?) and innovative approaches to common problems. A growing number of jurisdictions, including courts in the UK and US, now permit service of process '¨via social networking sites for those hard to reach through more traditional avenues of communication.

However, emerging technologies also mean new ethical quandaries for lawyers. Before you ‘friend’ that client or tweet about your latest courtroom triumph or big deal, it would be wise to consider how the paradigm shift that social networking represents is shaping the ethical landscape for lawyers.

Professional competence

Being social media-savvy may soon cease to be something that sets a lawyer apart and instead become a benchmark of professional competence.

The American Bar Association Ethics 20/20 Commission – appointed in 2009 to study the impact of technology and globalisation on the practice of law and the structure for regulating US lawyers – has recommended certain revisions to the Model Rules of Professional Conduct in light of the fact that “technology has irrevocably changed and continues to alter the practise of law in fundamental ways”.

Chief among these revisions is a change to Rule 1.1, which requires a lawyer to provide competent representation, and Comment 6 to the Rule, which previously mandated that attorneys should keep abreast of changes in the law and its practise.

The proposed new version of Comment 6 includes an obligation to stay current on “the benefits and risks associated with technology” as part of keeping abreast of changes in the law and the practise of law.

This revision reflects the realities of the modern practice environment, particularly with regard to social media. For example, a 2010 study by the American Academy of Matrimonial Lawyers revealed that 81 per cent of respondents had used social media evidence in their cases.

In an age in which locating and using content from social networking sites is playing an increasingly important role in a broad range of practice areas, is an attorney who is not conversant in the use of social networking platforms truly providing competent representation?

The ABA Commission’s recommendations also follow a growing trend among courts throughout the United States to hold lawyers professionally accountable when it comes to making '¨use of such online resources.

In Griffin v Maryland, a Maryland appellate court in 2011 quoted '¨approvingly that “as a matter of professional competence” lawyers '¨should be investigating social media avenues in their cases.¹

And, in the 2010 Missouri Supreme Court case Johnson v McCullough, '¨the court appeared to impose an affirmative duty on attorneys to make '¨online investigation a key part of the jury selection process.²

In the underlying medical malpractice case, plaintiff’s counsel asked the panel during voir dire about any previous history of lawsuits, and one venire member did not respond. After a defence verdict, the plaintiff’s counsel investigated that juror’s civil litigation history online (using Missouri’s PACER-like service, Case.net), only to discover that the juror had been a defendant in several debt collection matters and a personal injury case.

Plaintiff’s counsel moved for a mistrial; after it was granted, the defence appealed. The Missouri Supreme Court not only upheld the defence verdict, it also added some pretty strong language about attorneys’ responsibilities “[i]n light of advances in technology allowing greater access to information”.

Saying that “it is appropriate to place a greater burden on the parties to bring such matters to the court’s attention earlier on in a case,” the court held that “a party must use reasonable efforts to examine the litigation history on Case.net of those jurors selected but not empanelled and must present to the trial court any relevant information prior to trial” (emphasis added).

Courts in other states considering due diligence issues have recognised a ‘duty to Google’, if you will. An Indiana appellate court in Munster v Groce was incredulous that the plaintiff’s attorney had failed to Google the absent defendant Groce as a matter of due diligence, noting that the court itself had done so and immediately obtained search results that included a different address for Groce, as well as an obituary for Groce’s mother listing numerous relatives who might have known his whereabouts.³

And, in Dubois ex rel. Butler, a Florida appellate court questioned the effectiveness of an attorney who had only checked directory assistance in order to get an address to serve a defendant, calling such a method in the age of the internet the equivalent of “the horse and buggy and the eight track stereo”. ⁴

In a Louisiana case, Weatherly v Optimum Asset Management, the appellate court upheld a trial judge’s rejection of a party’s due diligence claims where that judge had conducted his own internet search and concluded that the proper contact information for the defendant was “reasonably ascertainable”.⁵

In addition, in Cannedy v Adams, a California appellate court held that an attorney’s failure to investigate and introduce evidence from a social networking site – a profile containing a purported molestation victim’s recantations – could constitute ineffective assistance '¨of counsel.⁶

Client confidentiality

Another area rife with ethical pitfalls is that of client communications and acting competently to preserve confidentiality.

Here again, the ABA Ethics 20/20 Commission has weighed in, proposing a change to Model Rule 1.6 (duty of confidentiality) that acknowledges the heightened risk of the unintended disclosure of confidential information '¨in a world dominated by Facebook, '¨Twitter and LinkedIn.

The revision would add an obligation for lawyers to make “reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client”.

A recent ABA ethics opinion, ABA Formal Opinion 11-459, also addressed the tightrope being walked by lawyers communicating with clients “via e-mail or other electronic means” (such as Facebook), to which third parties might gain access.

The opinion admonished lawyers to “take reasonable care to protect the confidentiality of the communications by giving appropriately tailored advice to the client” where “there is a significant risk that third parties will have access to the communications”.

Unfortunately, there is no shortage of actual examples of online breaches of confidentiality. In May 2010, former Illinois assistant public defender Kristine Ann Peshek was disciplined for disclosing client confidences on a blog she maintained, where she frequently referred to clients by their first names, nicknames or jail identification numbers.

She described, in sometimes graphic detail, the clients’ cases, drug use and other embarrassing and potentially harmful information, sometimes caustically critiquing their courtroom testimony. Peshek was similarly not shy about the judges she appeared before, referring to one as “Judge Clueless”; the result was '¨a 60-day suspension.

In 2006, an Oregon lawyer stipulated to a 90-day suspension for posting confidential personal and medical information about a former client on a listserv. Given the popularity of social media and the degree to which so many – including clients – have embraced sites like Facebook and Twitter as avenues of communication, it’s easy to envision lawyers tweeting about a key ruling or griping about a client who misled him about the facts of a case.

For attorneys with a social as well as professional relationship with a client, a client’s seemingly casual invitation via Facebook to a weekend barbecue might also include a reference to an upcoming matter of business. For example: “I’m worried about our CFO’s deposition – he makes a poor witness. See you Saturday.”

Lawyers who aren’t careful about their own communications, or who fail to remind clients to use more secure channels, run the risk of revealing case strategy or even privileged information to a whole host of third parties. This would include readers '¨of Facebook walls, followers on Twitter, and even potential strangers receiving '¨this information via re-tweets.

With sites like Facebook regularly tweaking their user privacy options, it’s not enough to simply depend upon the integrity of one’s own privacy settings. Even having one’s LinkedIn contacts '¨or list of Facebook ‘friends’ publicly viewable poses the risk of disclosing '¨a confidential relationship.

Consequently, lawyers should take care to police their own communications using social media and to advise their clients about potential threats to the confidentiality of online messages.

Information gathering

Another important area of ethical concern for lawyers using social media is the gathering of information about a party or witness.

While there is generally no ethical issue with viewing the publicly-available portion of an individual’s social networking profile, what about those Facebook pages with privacy restrictions, allowing only ‘friends’ to view such non-public content? May an attorney, or someone working for that attorney, try to become someone’s ‘friend’ in order to gain such access?

If the person is a represented party, the answer is clearly ‘no’. Under Rule 4.2 of the Model Rules of Professional Conduct, a lawyer should not communicate or cause another person to communicate with a person represented by counsel without the prior consent of that party’s attorney.

In May 2011, the San Diego County Bar Association’s legal ethics committee considered this rule’s application in the digital age, when a lawyer representing an allegedly wrongfully-discharged employee against the former employer presented an interesting situation.

Although he knew the company had appeared and was represented by counsel, the plaintiff’s lawyer had sent ‘friend’ requests to two high-ranking employees with the defendant employer; his client had identified both as dissatisfied with the company and likely to have made disparaging comments about it on their Facebook pages.

The ethics committee ruled that the lawyer’s request violated both the rule against contacting a represented party and the attorney’s duty not to deceive others. It held that lawyers seeking access to a represented party on social media sites must either obtain such information through formal discovery channels or contact the party’s attorney first to obtain consent to such a communication.⁷

The issue of potential deception or misrepresentation to third parties is at the heart of several other ethics opinions and at least one lawsuit.

In separate opinions, the Philadelphia Bar Association ethics committee (March 2009), New York City Bar Association committee on professional ethics (September 2010), and the New York State Bar Association committee on professional ethics (September 2010) all held that a lawyer – or someone working under that lawyer’s supervision like a paralegal – could not ‘friend’ a witness under false pretences.⁸

Pointing to Rule 4.1’s prohibition against knowingly making a false statement of fact to a third person, as well as Rule 8.4’s ban on conduct involving dishonesty, fraud, deception or misrepresentation, each of the committees found that trying to gain access to someone’s social media page by ‘friending’ him or having a third party friend him at the lawyer’s behest would be unethical.

As the Philadelphia Bar observed, not telling the witness of the lawyer’s role or his paralegal/investigator’s affiliation with the lawyer “omits a highly material fact, namely, that the third party who asks to be allowed access to the witness’s pages is doing so only because he or she is intent on obtaining information and sharing it with a lawyer for use in a lawsuit to impeach the testimony of the witness”.

And, as the New York City Bar opinion noted, the increasing use of social media sites by lawyers and the fact that deception is even easier in the virtual world than in person makes this an issue of heightened concern in the digital age.

Such fears have already led to legal action against one law firm, its investigator and its insurance company client. A May 2012 state court lawsuit in Cleveland, Ohio alleges that an Ohio insurance defence firm hired an investigator to gain access to the privacy-restricted Facebook page of a 12-year-old girl who was the plaintiff in a dog bite lawsuit.

According to the plaintiff’s complaint, the investigator posed as one of the girl’s Facebook friends, enabling him to view her private information and access over 1,000 posted messages and 221 photos between the minor plaintiff and her friends.⁹

Preservation of evidence

A final area rife with ethical risks for lawyers involves the preservation of evidence. No one wants to discover embarrassing photos or comments '¨on a client’s Facebook page that can adversely impact the case. But a lawyer can’t instruct his client to remove offensive content or to delete his Facebook account.

Model Rule 3.4 prohibits a lawyer from unlawfully altering or destroying evidence and from assisting others in doing so. Lawyers’ ethical duty to preserve electronically-stored information encompasses social networking profiles.

In a cautionary tale for the 21st century, plaintiff’s counsel in a recent Virginia wrongful death case, Lester v Allied Concrete, directed his paralegal '¨to instruct the client to delete his Facebook page.

The client, the surviving widower of a young woman killed in a collision with one of the defendant’s cement trucks, had Facebook photos that depicted him wearing a garter belt on his head and generally looking like anything but a grieving husband. Plaintiff’s counsel also represented to the defence attorneys during discovery that his client didn’t have a Facebook account.

After a $10.6m verdict for the plaintiff, the defence lawyers sought a new trial based on spoliation of evidence. The court cut the verdict in half and then assessed sanctions of $722,000 against Lester and his lawyer, Matthew Murray ($542,000 against Murray and $180,000 against his client), for their “extensive pattern of deceptive and obstructionist conduct”. Murray, a former president of the Virginia Trial Lawyers Association, has since resigned from the practise of law.

An ethical minefield

Even putting aside the ethical dilemmas raised by topics like employing social media in marketing a law firm, clearly the use of social networking in the actual practise of law is simultaneously a necessary weapon in a lawyer’s arsenal and a potential ethical minefield.

Law firms run the risk of breaching their duty to provide competent representation if they ignore all-persuasive social networking platforms like Facebook and Twitter and the utility they offer. However, the misuse of social media in managing client communications, investigating and fact-gathering, and preserving evidence present serious professional responsibility issues.

Attorneys should heed some of the same advice they dispense to clients:

1. treat social media as simply another form of communication, subject to the same ethical constraints as more traditional modes; and

2. adopt a social media policy '¨that will guide both lawyers '¨and non-lawyer employees in '¨the responsible use of '¨social networking.

 

'¨Endnotes

1. Griffin v State of Maryland, 2011 Md. LEXIS 226, 27-28 (Md. Ct. of App., 28 April 2011)

2. Johnson v McCullough, 306 S.W. 3d 551 (Mo. 2010)

3. Munster v Groce, 829 N.E. 2d 52, 62, fn 3 (Ind. App. 2005)

4. Dubois ex rel. Butler, 901 So. 2d 1029, 1031 (Fl. App. 2005)

5. Weatherly v Optimum Asset Management, 928 So. 2d 118 (La. App. 2005)

6. Cannedy v Adams, No. EDCV 08-1230-CJE(E), 2009 WL 3711958, at 280-29 (C.D. Cal., 4 November 2009)

7. San Diego County Bar Association Legal Ethics Opinion 2011-2 (24 May 2011).

8. Philadelphia Bar Association Ethics Committee Opinion 2009-0 (March 2009); New York City Bar Association Committee on Professional Ethics Formal Opinion 2010-2 (September 2010); New York State Bar Association Committee on Professional Ethics Opinion 843 (10 September 2010)

9. Caeleigh Cope v Steven Prince, Geo Survey, David Herrington, Law Office of Kerns & Proe and State Automobile Mutual Insurance, CV 12-781824, Cuyahoga County (Ohio) Court of Common Pleas (filed 2 May 2012).