So compartmentalized are our lives these days that we often neglect to consider that even the most mundane online social interactions may be subject to the ethical rules of the legal profession. Much has been written of late regarding the potential ethical pitfalls of the Internet generally and social media in particular, typified by Facebook, Twitter, LinkedIn and other such sites that have recently exploded in popularity. However, few articles have articulated what specific functions of social media may be permissible (or impermissible) in light of these recent decisions on these issues. However lawyers may use the Internet – whether to investigate parties or witnesses, promote their practice, or communicate with other lawyers or judges on social networking sites – they should be aware that the absence of guidance from state ethical bodies presents great uncertainty. Without clear rules governing lawyers' use of social media (or without statements from disciplinary bodies that existing rules are sufficient to govern this area), lawyers should remain conservative in their approach to such media and consider abiding by the following four suggestions.
1. It is probably best not to friend judges on social networking sites. Nothing says awkward like refusing a judge's Facebook friend request. Practically, though, attorneys may wish to refrain from friending judges to avoid future difficulties or ethical issues. Just like everyone else, judges are increasingly using social networking profiles, both for personal networking and professional purposes, including campaigns and elections. Friending, or even generally communicating with a judge online, can become perilous, so practitioners may wish to resist the impulse to communicate with judges in this fashion and avoid the issue altogether.
Three states, Florida, New York, and South Carolina, have already concluded that judges may utilize social networking utilities such as Facebook. The South Carolina Advisory Committee on Standards of Judicial Conduct last year concluded that "[a] judge may be a member of Facebook and be friends with law enforcement officers and employees of the Magistrate as long as they do not discuss anything related to the judge's position as magistrate." See S.C. Advisory Committee on Standards of Judicial Conduct (Op. No. 17-2009). Indeed, the South Carolina Committee justified its conclusion by reasoning that it "allow[s] the community to see how the judge communicates and gives the community a better understanding of the judge." Last year, in Florida, the Supreme Court Judicial Ethics Committee concluded that a judge may post comments or other material on a social networking site so long as they do not otherwise violate the judicial code of conduct. See FloridaSupreme Court Judicial Ethics Advisory Committee Op. No. 2009-20. Echoing that sentiment, a New York ethics panel found that judges may join such networks provided that they comply with ethical rules and remain informed about developments in social networking to ensure continued compliance. See N.Y. Ethics Op. No. 08-176. The Florida Committee concluded, however, that a judge may not "add lawyers who may appear before the judge as friends on a social networking site, and permit such lawyers to have the judge as their 'friend." (The Florida Committee did find, though, that lawyers who practice before judges can become fans of the judge's campaign page on Facebook, so long as the judge's campaign does not choose who can become a fan.).
Although the Florida opinion prohibits a judge from friending a lawyer who appears before him or her, other states have yet to address that particular issue. Thus, attorneys may wish to avoid the dilemma altogether in case their state's ethical body later prohibits that type of association. Even if the attorney in question does not appear before that judge, the attorney's firm may do so, and opposing counsel may attempt to raise an issue due to that association.
If a practitioner does friend a judge on Facebook or similar site, he or she should not communicate about the any litigated matters before that judge. Last, year, the North Carolina Judicial Standards Commission reprimanded one family court judge for his actions on Facebook. See N.C. Inquiry No. 08-234. The judge in question was presiding over a custody hearing and responded to a Facebook post about that case posted by the defense attorney in the case. The judge then posted on his own Facebook profile that he had "two good parents to choose from" and that he felt that he would be back in court as he did not expect the matter to settle. In response, the defense attorney then responded that he had "a wise judge." The judge and the defense lawyer continued to publicly communicate via Facebook. The judge also Googled the Plaintiff, discovered the website for her photography business, and recited one of her poems in open court, going so far as to modify the poem and later state that it influenced his impression of her. In its public reprimand, the Commission concluded the judge had improper ex parte communications and was "influenced by information he independently gathered by viewing a party's website while the party's hearing was ongoing, even though the contents of the website were never offered as nor entered into evidenced during the hearing."
2. Be careful when claiming website listings or using LinkedIn. By now, attorneys are familiar with many of the countless online databases of lawyers and law firms. Some of these are far more reputable than others. There are numerous fly by night operations which cobble together websites based on publicly available information, but there are also well established directories, such as the familiar Martindale Hubbell, which now permits attorneys to "claim" and modify their listing online through its Martindale Connected social networking experiment. Many lawyers have also established profiles on the popular business networking utility, LinkedIn, which permits users to establish a profile, list their educational and employment background, and communicate with other like-minded users. However, attorneys should be mindful of the ethical implications of claiming a profile and interacting on such sites.
South Carolina has some unique rules concerning marketing. Of particular note is its blanket prohibition against client testimonials and endorsements. Interpreting the South Carolina legal marketing rules, the South Carolina Ethics Advisory Committee recently cautioned attorneys who attempt to claim a website directory listing or utilize LinkedIn to promote their practice. The Committee noted:
A lawyer may 'claim' a website listing, but all information contained therein 'including peer endorsements, client ratings, and Company X-ratings' are subject to the rules governing communication and advertising once the lawyer claims the listing. A lawyer may invite peers to rate the lawyer and may invite and allow the posting of peer-inclined comments, but all such comments are governed by the Rules of Professional Conduct, and the lawyer is responsible for their content.
Attorney users should be particularly careful in using LinkedIn, as one of the fields to complete is entitled "Specialties," a phrase which may run afoul of ethical rules. (Users can remove this field from their profile but must affirmatively do so.). LinkedIn also permits users to solicit and publish "Recommendations" from other users on a profile. Assuming that such a recommendation is permitted at all by a state ethical body (and it may not be), a lawyer may become responsible for the content of the recommendation if they adopt it and publish it on their profile. Client testimonials, or recommendations suggesting results without adequate disclaimers, may be problematic if the lawyer in question chooses to post them on his or her profile. Finally, these profiles, in and of themselves, may constitute advertising materials, and thus, subject to the rules on that subject promulgated by the ethics body in the lawyers' state.
3. Do not comment about your litigation on your social networking profile or blog. Practitioners should be aware that they should not post information relating to their representation, or even their practice, online without implicating the ethical rules. Two heavily regulated ethical areas arise in this context: the duty of confidentiality and attorney advertising.
It should go without saying that attorneys should not post confidential or privileged information on their websites or social networking profiles. However, not all attorneys have heeded this advice. Last year, the Illinois Registration and Disciplinary Commission found that a public defender had engaged in misconduct by posting confidential client information and inappropriate remarks on her blog, which was called "The Bardd [sic] Before the Bar – Irreverant [sic] adventures in Life, Law, and Indigent Defense." See In The Matter of Peshek, No. 6201779 (Ill. Atty Reg. & Disc. Comm'n) (2009). In that case, which really was a worst case scenario involving these rules, the lawyer's violations of the duty of confidentiality were egregious. The lawyer in question posted that one of her clients, a college student facing drug charges, was "taking the rap for his drug-dealing dirtbag of an older brother because 'he's no snitch,'" and shared that another client, a diabetic in another drug case, had failed a drug test and had appeared in court while under the influence of drugs. She also shared that another client, accused of a probation violation, had lied to the judge, the pre-sentence investigator, and her lawyer (the blog author) about remaining on Methadone. She also described one judge as a "total a—hole" and referred to another as "Judge Clueless." All the while, she referred to the court officials and clients in such a way that a diligent investigator could determine their identity. The Commission found that she had revealed confidential information in violation of ethical rules and, by virtue of failing to correct her client's representations about the Methadone usage, had failed to disclose to a tribunal information necessary to avoid assisting a client in a fraudulent act. Obviously, this matter presents conduct on the extreme end, but it aptly illustrates that even conduct believed to be private or under the radar can come back to haunt an attorney.
Aside from concerns about confidentiality, practitioners should be aware that when they post information about their practice or legal activities on their social networking profiles, they may be engaged in advertising. It seems counterintuitive that a 140 character Twitter tweet remarking a lawyer has just prevailed at a summary judgment hearing would constitute advertising, but at its essence, such a tweet conveys information about one's legal services. Lawyers should check their state's advertising rules to determine if their Twitter or Facebook accounts should be filed with ethical bodies if they are being used to promote – or even discuss – the legal services that the attorney offers clients. There is no clear guidance from those bodies as to whether an attorney must file each individual tweet, blog entry, or status update that may technically qualify as advertising, or whether such bodies prefer the initial filing of the site's landing page without daily updates. Also unresolved is whether an attorney's profile, if set to private but viewable by those he has chosen to "friend" is sufficiently in the "public media" to become lawyer advertising. Until issues are resolved, it may be best to assume they are such.
4. Be careful when communicating with those you are investigating online. These days, so many parties and witnesses to litigation are using Facebook, MySpace, or other social networking sites that information relevant to the litigation is often found on their profiles. In light of that, wise practitioners often scour the Internet to uncover helpful information on deponents, expert witnesses, or party opponents. Increasingly, though, sophisticated users of these sites are adjusting their privacy settings to conceal their profiles and photographs from all but those they have chosen to "friend" on such sites. Practitioners have met with mixed results in attempting to obtain by subpoena private profiles from Facebook and/or MySpace; further, such discovery battles are often cost prohibitive. In response, some practitioners have adopted additional tactics to unlock private profiles which may be ethically questionable and should be avoided.
In March 2009, the Philadelphia Bar Association Professional Guidance Committee issued an opinion arising from the actions of an investigator working on behalf of an attorney in a litigated matter. See Philadelphia Bar Ass'n Professional Guidance Committee, Opinion 2009-02. In that opinion, a lawyer inquired of the committee whether it would be permissible for a third party investigator working on behalf of the attorney to "friend" an adverse witness to obtain access to her Facebook and MySpace profiles in order to learn personal information and information relevant to a lawsuit. The inquiring attorney indicated that his investigator would "state only truthful information, for example, his or her true name, but would not reveal that he or she is affiliated with the lawyer or the true purpose for which he or she is seeking access, namely, to provide the information posted on the pages to a lawyer for possible use antagonistic to the witness." The committee found that "the proposed course of conduct contemplated by the inquirer would violate Rule 8.4(c) because the plan communication by the third party with the witness is deceptive." The committee went on to say:
It omits a highly material fact, namely, does 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. The omission would purposefully conceal that fact from the witness for the purpose of inducing the witness to allow access, when she may not do so if she knew the third person was associated with the inquirer and the true purpose of the access was to obtain information for the purpose of impeaching her testimony.
The committee also rejected the inquirer's comparison to video surveillance, noting that in that situation, "the videographer simply follows the subject and films him as he presents himself to the public" and "does not have to ask to enter a private area to make the video."
This is not to suggest that an investigator should not use social networking sites in order to contact potential witnesses for interviews and/or other staples of factual investigations in litigation. How then to locate information about an adverse witness? One popular way to unlock a social networking profile that has been set to private is to send the author of that profile a friend request. Traditionally, the acceptance of such a request will unlock that individual's profile (unless that individual has elected to establish a "limited profile", which conceals portions of their profile even if they have become friends with other users). However, the opinion by the Philadelphia Committee does not suggest that an investigator may not straightforwardly identify himself and his purpose in sending a friend request. For example, Facebook allows those sending a friend request to the prospective friend to append a personal message to the request. If the investigator in the disciplinary opinion had identified himself by name and purpose in the message accompanying the friend request, then the ethical concerns about concealment and deception would not have been implicated. Although the recipient of the friend request would be far more likely to deny the request without incident following such a disclosure, the individual may well reply to the request. In doing so, the recipient of the request may inadvertently unlock their profile to a certain limited extent, as the very act of sending a response sometimes allows the original investigator to see at least some portions of that person's profile.
As a final aside on this point, practitioners or their agents should not send friend requests or communicate directly with parties on social networking profiles. This is an obvious and impermissible communication with a represented person. Attorneys should also advise their clients not to communicate with parties or jurors on social networking sites (as there has been a series of recent cases involving just that type of prohibited communication).
James M. Dedman IV is a senior associate at Gallivan, White & Boyd, P.A. in Greenville, South Carolina, where he practices in the areas of personal injury and mass tort litigation. He graduated from the University of Texas at Austin in 1998 with a B.S. in Radio/Television/Film and from Baylor Law School in 2002. Upon graduation from law school, he clerked for the Honorable Eva M. Guzman of the Fourteenth Court of Appeal, now a justice on the Texas Supreme Court. Prior to coming to South Carolina, he practiced in Southeast Texas. He is licensed in Texas, South Carolina, and North Carolina. In 2009, he was the chair of the South Carolina Young Lawyers Division Social Media Task Force.