By Margaret (Molly) DiBianca
As the popularity of online social networking continues to rise, so do the number of stories involving the online misadventures of legal professionals. Lawyers who have been very pro-active with social media may be the most aware of such stories, if only because they receive tremendous attention on blogs and Twitter. But, what about lawyers who do not use social media? It may be surprising to some but social media presents ethical risks even to those lawyers who do not participate in it.
The Ethical Lawyer Does Not Ignore Social Media
One interesting, albeit controversial, question is whether our ethical duties may require lawyers to be adept in social media. Rule 1.1 of the ABA Model Rules requires lawyers to be competent in their representation of the clients. Has social media become so engrained in contemporary society that a lawyer who elects to ignore social media altogether may be unable to provide truly “competent representation?”
Comment 6 instructs that lawyers “should keep abreast of changes in the law and its practice.” This suggests that the duty of competence includes a duty to stay current in not only the substantive aspects of the area of law in which one practices but in the procedural aspects, as well. For example, the American Academy of Matrimonial Lawyers reports that 66% of divorce attorneys use Facebook as their primary source for online evidence. Based on this statistic, can a family-law practitioner fulfill his duty of competency if he never incorporates searches of online social networking sites as part of his investigative efforts in divorce cases? Perhaps the competency standard is not yet this high. But, if the use of social media tools continues to increase as expected, it may be possible that, soon, a basic awareness of social media may be essential to the competent practice of law.
Even if the competency standard does not require that attorneys be familiar with social media, it may be required by the duty of diligence as provided by Model Rule 1.3. Comment 1 provides that a lawyer should “act…with zeal in advocacy upon the client’s behalf.” If the diligent attorney must be zealous in pursuing a matter on his client’s behalf, it seems possible that more than familiarity may be required—actual use of social media may be necessary.
Take, for example, the divorce scenario discussed above. If more than half of divorce attorneys say that Facebook is their best source for online evidence, then failure to check the site for evidence about your client’s soon-to-be-former spouse may constitute a failure to perform due diligence. A divorce attorney who ignores Facebook and other social networking sites as a source of possible evidence could be compared to a prosecutor who fails to conduct a criminal background check on a defendant’s key alibi witness. Both, it could be argued, may be in violation of Model Rule 1.3.
This gives rise to a different diligence issue, as well. Specifically, whether the duty of diligence requires a lawyer to warn his client against posting potentially damaging content to her Facebook page. If we assume that the competent opposing counsel is almost certain to search online for information about your client, it seems to follow that you should advise your client not to post information or pictures that could negatively impact her case.
Taking the idea a step further, it could be argued that the duty of diligence requires a lawyer to monitor the Internet for potentially damaging information about his client. A lawyer can monitor the Web for his client’s name using Google Alerts, which is a free tool and takes just minutes to set up. Once an Alert is created, the lawyer will receive automatic updates any time new information is posted containing the client’s name.
If the client does not heed the advice of her diligent counsel, though, and posts pictures that, perhaps, do not cast her in the most favorable light, there could be severe consequences for her case. But her lawyer warned her—isn’t that sufficient? Perhaps not. Perhaps the duty of diligence requires the lawyer to ask that the client accept him as a Facebook friend, thereby enabling the lawyer to look for himself and make a determination about whether any of the client’s postings are potentially harmful. After all, “appropriate” is an entirely subjective standard.
The Ethical Lawyer Regards Social Media As Evidence
The ethical quandaries do not stop there. Suppose you discover that your client’s Facebook page does, in fact, contain several unsavory images or comments that the opposing party would be delighted to use in litigation. Your initial reaction upon viewing this potentially negative evidence may be to instruct the client to delete the content or even her Facebook account. Model Rule 3.4(a) may prohibit the lawyer from making this recommendation.
Model Rule 3.4(a) prohibit lawyers from unlawfully altering or destroying evidence and from assisting others from doing so. Lawyers have an ethical duty to preserve electronic evidence, including social networking profiles. And the failure to preserve can lead to significant sanctions. Instructing a client to delete evidence, including the client’s Facebook page, may constitute spoliation of evidence, which could result in an adverse-inference instruction to a jury or sanctions against the attorney.
The better alternative is to have the client set her profile page as “private.” The opposing party will not have direct access to the contents of her page but could request the evidence through formal discovery channels. That is, of course, if the opposing counsel is diligent.
Model 4.4(a) prohibits a lawyer from using “means that have no substantial purpose other than to embarrass, delay, or burden” in representing a client. Thus, a lawyer may be limited in how he uses what he finds as the result of an online investigation. In other words, just because it’s “juicy” doesn’t mean it’s relevant to the case or ethical to use.
For example, imagine a worker’s-compensation claimant who alleges to have suffered an on-the-job back injury. He claims that his injury precludes him from enjoying his favorite hobby, deep-sea fishing. You discover a video on YouTube of a deep-sea fishing competition, clearly a participant, being interviewed at the start of the event. This evidence would certainly be relevant in the discovery context and one could imagine its purpose for impeachment, as well.
But what if there was a second video of the same interview but posted on YouTube by a different user. The quality of the second video is not quite as good. But it runs longer than the first and, at the end of the clip, the plaintiff gets a good-luck-kiss from a beautiful woman, who, it turns out, is not the plaintiff’s wife. You show the plaintiff both clips at his deposition. He responds with shock to both but is visibly upset when he sees the playback of his special moment shared with his paramour.
Before trial, you tell the plaintiff’s lawyer that you plan to use the second video as evidence. You pick the second video over the first, despite its lesser quality, because you think it will encourage the plaintiff to settle. Under these facts, you risk violating Model Rule 4.4(a) because the true purpose of using the video is to embarrass the plaintiff by exposing his extra-marital affair.
The Ethical Lawyer Ensures That Those He Supervises Understand Social Media
Underlying each of these duties are Model Rules 5.1 and 5.3, which hold a lawyer accountable for the unethical conduct of a person for whom he has supervisory responsibility. Model Rule 5.1 requires that a lawyer with direct supervisory authority over another lawyer make “reasonable efforts” to ensure that the other lawyer complies with his ethical duties. Model Rule 5.3(a) requires those lawyers who manage a firm “make reasonable efforts” to ensure that the firm has reasonable measures in effect to assure that lawyers comply with their ethical duties. And Model Rule 5.3(b) holds a lawyer responsible for the unethical conduct of his nonlawyer assistant.
The broadest implication of this subset of rules involves employee policies adopted by law firms. A law firm that has no social media policy or guidelines in place would seem to risk violating Model Rule 5.3(a).
Worse yet is the firm that makes no effort to educate its lawyers about the ethical risks inherent in social media. Just as firms warn their lawyers about the latest fraud schemes being perpetrated via the Internet, so should firms warn lawyers about the dangers of careless use of social media. And Model Rule 5.3(c) requires the firm to educate its non-lawyer personnel, as well.
The Pennsylvania Ethics Committee addressed a lawyer’s ethical obligations in the context of non-lawyer staff who search for potential litigation evidence on social networking sites. The committee concluded that it would be unethical for a lawyer to instruct (or permit) a non-lawyer personnel to attempt to “friend” a non-party witness for the purpose of accessing information on the witness’ Facebook page. Unless the lawyer’s agent expressly disclosed who he was and the purpose of his friend request, the lawyer would be engaged in impermissible deception in violation of Model Rule 8.4. Phila. Bar Assoc. Op. 2009-02.
The advisory opinion implicates several of the rules addressed above. For example, if the non-lawyer personnel had suggested the idea to the attorney, Model Rule 1.1 seems to require the attorney to at least understand the concept of “friending” before responding to the suggestion. Model Rule 1.3 seems to suggest that the diligent attorney would ask the non-party witness about her social networking use during her deposition and issue additional information via formal discovery requests where appropriate. And Rule 5.3 would seem to require that the attorney affirmatively communicate the holding of the Ethics Committee’s ruling to all non-lawyer personnel.
The Ethical Lawyer Understands the Impact of Social Media on Business Development
The aversion that many lawyers have to social media has led to an unusual type of ethical issue. Although some lawyers may not want to participate in social media, they (or someone above them in the law firm hierarchy) realize the potential value of the medium as a business development tool. As a result, many lawyers rely on others for at least some portion of their business development efforts. For example, at some firms, attorneys’ LinkedIn profiles are created by the firm’s marketing department.
Profiles Created by Lawyers
Online profiles are commonly used on social networking sites as the user’s online biography, similar to what one may find on the attorney’s firm Web site. Some profiles are more extensive than others, though. For example, on LinkedIn, users can post tremendous amounts of information in their profiles, making them look more like a resume. On Twitter, though, users get just 160 characters in which to write their “bio.”
A profile created by a lawyer on a social networking site must comply with the ethical rules on advertising. Certainly, this may be reasonably obvious to a lawyer who regularly uses LinkedIn or Twitter. But this is not necessarily the case for a lawyer who creates an online profile in a short-lived moment of social media enthusiasm, but never visits the site again. Or, similarly, when the firm’s marketing department creates profiles on the behalf of the firm’s lawyers, none of who intend to participate in the social network’s online community.
Profiles Created by Others
Is the lawyer responsible for inaccurate or misleading information posted to his profile, even if it is posted by a third party? And what if the third party poster is anonymous? On the a lawyer-rating site Avvo.com, for example, “clients” can post anonymous “reviews” of lawyers. The creation of an online profile does carry ethical risks due to the ability of third-parties to post reviews, endorsements, or otherwise leave comments on the profile without the attorney’s consent. One easy preventative step is to include a disclaimer with any profile in which you hold yourself out as a lawyer. But a disclaimer may not always suffice.
The South Carolina Bar Association issued an advisory opinion in 2009, determining that a simple disclaimer on a lawyer’s profile may not be sufficient to satisfy the lawyer’s duty to avoid misleading or untruthful statements. S.C. Ethics Advisory Op. 09-10 (2009). The opinion indicates that a “client review” would actually constitute a “testimonial” or “endorsement” under Rules 7.1(d) and (b). In South Carolina, lawyers are prohibited from “allowing publication of” endorsements that are misleading or likely to create unjustified expectations. This phrase, the opinion concludes, means that lawyers will be responsible for what others post about them. According to the South Carolina opinion, once a lawyer claims or creates his profile, he becomes ethically obligated to monitor it to ensure that it remains free of any prohibited advertisements by others.
Even an entire attorney profile can be “claimed” by a law firm without the attorney’s express consent. The firm need only complete a simple form letter, listing the attorneys for whom the firm is claiming their Avvo profile and identify a contact person at the firm who will be responsible for updating the profiles being claimed. Put differently, an administrative assistant in the marketing department of your firm could have created your profile and be authorized to make changes to it.
The potential ethical implications in this type of “ghostwriting” for online profiles of attorneys are numerous, if not obvious. As discussed above, even if the firm’s marketing department has been delegated the task of claiming and updating profiles for the firm’s attorneys, it is the ethical responsibility of each attorney to ensure that the information in the profile—and all comments posted to the profile—are not misleading or untrue. In addition to being responsible for monitoring his profile, it would seem that the lawyer, or at least the managing partners of the firm, would be responsible for ensuring that those who are assigned the initial task of creating the profiles are knowledgeable about what is and is not ethically permitted.
This type of third party posting was a central issue in disciplinary proceedings brought against a Florida judge, who was reprimanded for representations she made in her 2008 campaign. Specifically at issue was the use of the word “re-elect” in the link to a campaign commercial posted on YouTube. The judge had been appointed in 2005, so the word, “re-elect,” was potentially inaccurate or misleading. The link and video had been posted by a political consultant without the judge’s knowledge but the judge took responsibility during disciplinary proceedings. In re Angela Dempsey, No. SC09-1747 (Fla. Feb. 4, 2010).
All lawyers should be cautious to comply with their ethical duties in the context of social media. Even those who do not participate in social media should be aware of the potential dangers that exist. The issues are many and complex and should be expected to change and develop with time. Until lawyers’ duty of competency require actual knowledge of social media, ethical best practices suggest that we familiarize ourselves with the medium at least enough to consider the issues in an educated manner.
Margaret (“Molly”) DiBianca is an employment lawyer at Young Conaway Stargatt & Taylor, in Wilmington, Delaware, author of the Delaware Employment Law Blog, and member of the Richard K. Herrmann Technology AIC.
© 2010 Margaret (“Molly”) DiBianca, Esquire. This article was published in the November/December 2010 issue of The Bencher, the flagship magazine of the American Inns of Court. Inquiries about this article should be directed to the American Inns of Court.