Social Networking Sites are Valuable Tools for Lawyers: But Beware the Potential Ethical Pitfalls

Social networking and ethics: what do these two concepts have in common? Plenty, if you're a lawyer. Using social networking can ensnare attorneys in ethical traps in two different ways — when accessing information in someone else's profile, or when an attorney's own profile information might be used against them. These are real world issues many practicing attorneys face every day. Let's focus on the American Bar Association's Model Rules of Professional Conduct.

WHAT'S PRIVATE?
An attorney recently pondered how she could access a witness' private (open only to "friends") profile on a social networking site. The Philadelphia Bar Association's Professional Guidance Committee Opinion 2009-02 (March 2009) addresses a similar question from a lawyer who wished to gain access to an unrepresented witness' private profile to use the profile information against the witness during litigation.

The inquiring attorney asked if he would be in breach of professional conduct rules if he asked a non-lawyer assistant to "friend" the witness, without the assistant explaining the reason for the request or disclosing that the assistant worked for the attorney.

The opinion concluded that this conduct would violate several rules of professional conduct.

First, the "proposed course of conduct contemplated by the inquirer [the lawyer] would violate ABA Rule 8.4(c) because the planned communication by the third party [the assistant] with the witness is deceptive. It 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."

Second, even though the attorney is not making the actual "friend" request, because of Rule 5.3 (Responsibilities Regarding Nonlawyer Assistants), the attorney is in violation of Rule 8.4(c) because he is responsible for the "violative conduct" of the person he supervises.

Third, the proposed conduct violates Rule 4.1 because it, "constitutes the making of a false statement of material fact to the witness."

Fourth, because "the violative conduct would be done through the acts of another third party, this would also be a violation of Rule 8.4a."

Would any of the above ethical dilemmas arise if this were a public profile? Probably not. After all, if the profile is open to the public, there would be no actual contact or exchange with the profile's owner.

ETHICAL TRAPS
How can information posted by an attorney to his own social networking profile create ethical traps? For the most part, the attorneys simply trap themselves with their own words. 
Here are a few examples:

  • Texas: Judge Susan Criss caught an attorney lying about the reasons he needed a continuance, by viewing the attorney's Facebook profile where she learned that he was on vacation and not attending a relative's funeral. This is just the type of situation that could invoke a Rule 3.3(a)(1) "Candor Toward the Tribunal" charge. ("A lawyer shall not knowingly make a false statement of fact or law to a tribunal...")
  • Nevada: A lawyer, sitting as a temporary pro tem judge in Clark County, Nevada, was removed from the bench after his MySpace page caught the attention of the local district attorney, who believed that the profile exhibited hostility to prosecutors and could result in bias against the D.A.'s office.

In addition to losing his pro tem position, this conduct could have been considered a breach of Rule 8.4(d). ("It is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice.")

  • Minnesota: A Somali man convicted of murder in Minneapolis filed an appeal based on derogatory remarks against Somalis — allegedly posted by the prosecutor in her Facebook profile during trial.

In addition to a potentially successful appeal, an 8.4(d) misconduct charge could be on the horizon for this prosecutor based on Comment 3, which states that it is professional misconduct for a lawyer, in representing a client, to knowingly manifest by words or conduct, bias or prejudice based upon race, sex, religion, national origin … when the actions are prejudicial to the administration of justice.

  • North Carolina: The state's Judicial Standard Commission reprimanded Judge B. Carlton Terry Jr. for using Facebook to talk to a defense attorney about a child custody case, including indications of when the verdict would be delivered. 

While there was no report of what the attorney said to the judge, be careful about friending a judge (or a juror) for fear of invoking a Rule 3.5 "Impartiality and Decorum of the Tribunal" ethics charge ("A lawyer shall not knowingly: (a) seek to influence a judge, juror, prospective juror, or other official by means prohibited by law or (b) communicate ex parte with such a person during the proceeding...").

  • LinkedIn: In a recommendation on an attorney's profile, a client stated, "In every case Mark was equal to or significantly better than the opposing lawyer." While these words were not written by the attorney, the attorney does have control over posting this recommendation. 

Thus, the posting might violate Rule 7.1 if it were considered misleading under the comment to Rule 7.1. (An "unsubstantiated comparison of the lawyer's services … with the services … of other lawyers may be misleading if presented with such specificity as would lead a reasonable person to conclude that the comparison can be substantiated.")

DON'T GET TRAPPED 
To avoid any ethical traps concerning accessing a private profile, read the Philadelphia opinion. It's the only ethics opinion on point.

To avoid having your own profile ensnare you into an ethical trap, configure your profile with the site's most restrictive security/privacy settings.

This assumes you are using your social networking profile for personal reasons only. But if you are using your social networking profile for professional/marketing purposes, using the most restrictive settings would run counter to your purpose, so choose your words (and your friends) carefully.

 

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