At this point, we are several years in to the use of social media. Still yet we cringe when we hear or read about some of the crazy things that people or companies say online. It seems that despite experiencing multiple generations of social media platforms – Friendster, Myspace, Xanga, Facebook, Linkedin, and now Google+ – many people are still quite naive in their social media use. In the legal world, a social media misstep can tank a reputation or cost you a trial. However, there can also be opportunities provided if you know what you are doing.
Social Media Updates as a Business Development Tool?
Many attorneys operate under the mistaken notion that because they have used one social media platform, like Linkedin, they understand how to ethically use them all. Unfortunately this is far from the case. To avoid professional disciplinary action, attorneys should understand the intricacies of each platform and the nexus between functionality and ethical requirements.
Jurisdictions have cracked down on multiple fronts when it comes to attorney advertising in social media. Especially so when a personal profile is used for hybrid personal and business purposes. Perhaps the safest course of action is to assume that attorney advertising rules apply to the profile regardless of the specific content beginning with the bedrock principle that, “a lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services.” However if an attorney would like to use status updates for business development purposes, they must fully research the ethical standards in their jurisdiction and should be particularly wary of:
- Statements that suggest availability for professional employment such as, “Who would like to be able to say they are represented by The Smith Firm?” or “Call me for a free consultation.”
- Statements that suggest, imply or predict a result like, “Big victory in court today! Who wants to be next!?”
- Statuses that encourage others to promote your firm or encourage others to refer individuals for your professional services like, “Tell your friends to check my website”
Of course, ethics rules may differ in your jurisdiction. Even if it is acceptable in your jurisdiction, before you go through with advertising of this type, be sure that it reflects how you would like others to view your firm. Furthermore, be sure that it is likely to attract the type of business you are seeking.
Attorneys Beware: Social Media Disclosure Requirements Vary by Jurisdiction
It is generally established that an attorney may utilize social media network to research the opposing party, witnesses or jurors. Likewise, in most jurisdictions, it is accepted that an attorney may ethically view the public portions of a profile and, when there is an unrepresented party, may request access to the full profile provided that deceitful means are not employed. Attorneys however should be especially mindful of the required disclosures as some jurisdictions simply require the lawyer to use his or her full name and an accurate profile. However, other jurisdictions have additional mandatory disclosures such as:
- New Hampshire requires the attorney to disclose their involvement in the litigation, the client involved in the litigation, the matter being litigated, and the disclose of the “lawyer by name as a lawyer”.
- Philadelphia holds that, “intent on obtaining information and sharing it with a lawyer for use in a lawsuit to impeach the testimony of the witness” is an impermissible omission of a “highly material fact.”
- Opinions in Oregon state that if the unrepresented party requests, “additional information to identify [the l]awyer, or if [the l]awyer has some other reason to believe that the person misunderstands her role, [the l]awyer must provide the additional information or withdraw the request.”
These are just a few examples of the additional disclosure an attorney may be required to make. Some are even as careless to make admissions or boast about their own dishonesty or criminal acts. Before you take any action on a social media network, personally or through an agent, be sure that you understand the ethical obligations including disclosure requirements.
The Unintentional Communication with a Juror
We have already discussed that it is established that, generally, attorneys are ethically permitted to view the publicly available information contained within an online profile. But what about when the social network automatically notifies the owner of the profile who has accessed or viewed their information? This situation is more than a hypothetical as LinkedIn actually works this way. Typically after viewing a profile, the owner of the profile will receive a message listing all or some of the people who have accessed their profile during the previous week.
If a prospective or sitting juror receives a notification message, does this constitute an impermissible ex parte communication? In at least some jurisdictions, the answer is yes. While New York has stopped short of definitively naming such a communication as an ethical violation it posits that:
“…research using services that may, even unbeknownst to the attorney, generate a message or allow a person to determine that their webpage has been visited may pose an ethical risk even if the attorney did not intend or know that such a “communication” would be generated by the website…It is the duty of the attorney to understand the functionality and privacy settings of any service she wishes to utilize for research, and to be aware of any changes in the platforms’ settings or policies to ensure that no communication is received by a juror or venire member.”
On the West Coast, the San Diego County Bar issued an ethics opinion similar to New York’s that goes one step further by stating, “…that because an attorney must make a decision to ‘friend’ a party, even if the ‘friend’ request [is] nominally generated by Facebook and not the attorney, [the request] is at least an indirect communication” and is therefore prohibited by the rule against ex parte communications with represented parties.”
The takeaway for social media usage is that attorneys, or their agents, must have a thorough and complete understanding of the functionality of the platform on which they wish to perform research before they begin. An incomplete understanding of the automated features can lead to ex parte communications, disciplinary action, or perhaps even a mistrial.
Social Media Literacy is an Essential for Some Practice Areas
Diligent research on social media platforms can uncover a treasure trove of new business opportunities or statements for use in a case. But failure to keep up with the ever evolving advertising ethics rules can land you in trouble and may even jeopardize your case. However, social media is not necessarily something that all attorneys will have to navigate. For instance, corporate or transactional attorneys are probably less likely to find themselves searching through the opposing side’s social media profiles. However, should the need arise, attorneys who do not routinely work with social media should not hesitate to reach out to a social media specialist. In the meantime, while far from comprehensive, our hope is that this primer will spur you to more fully consider your actions on social media platforms — and their potential consequences.