It’s no secret that millions of people are on Facebook and LinkedIn. And judging by the amount of time my Aunt spends on Farmville, people spend a LOT of time on Twitter, YouTube and Facebook. It’s only surprising that attorneys have just begun to harvest Web 2.0.
Divorce, criminal law, and personal injury attorneys are increasingly scouring social media websites for any type of useful evidence on witnesses, jurors, opposing litigants and attorneys. A DA in Texas not only gave his lawyers iPads, but he was also considering offering jurors free WiFi in court if they agree to ‘friend’ his office on Facebook – thus granting his attorneys better access to their information.[1]
But is this ethical conduct? Sometimes it’s very hard to tell because there is very little guidance out there – this is uncharted terrain.
With the amount of information available in Web 2.0, more regulatory bodies have began addressing the subject. I recently covered this subject in a recent post To Friend … Or Not to Friend? that discussed Legal Ethics Opinion 2011-2 from the San Diego County Bar Association.[2] The San Diego Bar opinion states that the ethical rules bar an attorney from making an ex parte request of a represented party.
Three recent ethics opinions from New York have also started to define the ethical boundaries for attorneys looking to exploit information on social networking sites.[3] According to Ethics Opinion 843 attorneys may ethically use the information posted in public areas of a social media website. In some cases it’s even ethical to use a ‘friend request’ to obtain information from an unrepresented person’s social networking site without disclosing the reasons for the request. Many regulatory bodies, however, draw the line at tricking or deceiving a person by using a fake name to friend a person involved in the litigation – the same result that was reached in New York City Bar Formal Opinion 2010-2.[4]
Lastly, NYCLA Opinion 743 stated that lawyers may ‘passively’ monitor jurors, but may NOT have no direct or indirect contact with jurors during trial.[5] Further, Opinion 743 emphasized that lawyers “may not act in any way by which the juror becomes aware of the monitoring.” Please read Ethical Bounds of Using Evidence From Social Networksfor further information on the subject, the article recently appeared on the Legal Technology News website.[6]
Other ethical issues to be aware of:
- Breaches of Confidentiality
- Duty of competence
- Giving legal advice and forming an A/C relationship
- Conflicts of interest and disqualification
- LinkedIn and client testimonials
One main issue I would be greatly concerned with is the cost of discovery from Web 2.0 — especially for solos and attorneys at small firms in the wake of Qualcomm v. Broadcom.
Further resources:
Dr. Seuss, Cheese and Social Media: Ethical Pitfalls Impacting Attorneys and Their Clients
Ethical Implications of Social Media Mining
United States: Ethical Implications of Social Media Mining
California Ethics Committee on Social Media Mining
[1] Even District Attorneys have begun using social media in voir dire, offering potential jurors free Wi-Fi in exchange for friending the prosecutor’s office.
http://darklythroughtheglass.wordpress.com/2011/03/01/heard-about-facebook-being-used-to-select-jurors-you-aint-seen-nothing-yet-singularity-hub/
[2] The post summarized SDCBA Legal Ethics Opinion 2011-2. The ethics opinion from the San Diego Bar said it’s the first to confront ex parte communication through social media. See: https://www.sdcba.org/.
[3] See Opinion 843, Formal Opinion 2010-2 & Opinion 743. Ethical Bounds of Using Evidence From Social Networks
[4] In Formal Opinion 2009-2, the Philadelphia Bar’s Professional Guidance Committee also stated that it is misleading for an attorney to cause his paralegal to “friend” the opposing party to gain access to private social media postings or photographs.
[5] According to the Formal Opinion 743, “passive monitoring of jurors, such as viewing a publicly available blog or Facebook page” is permissible. NYCLA Committee on Professional Ethics Formal Opinion 743.
[6] See Ethical Bounds of Using Evidence From Social Networks @ http://bit.ly/prKyzF.