The Love-Hate Relationship with Social Media: Maximize Opportunities without Maximizing Risk

By Kristin Casler, featuring Christina Vassiliou Harvey of Lomurro, Munson, Comer, Brown & Schottland, LLC and Robert L. Rogers III of Holland & Knight

In the legal ethics arena, the Internet and social media can be a high-wire act for attorneys. One misstep and you’re dangling by your fingertips—or worse. And generations of attorneys who weren’t raised in today’s hyper-tech world may find themselves even more off balance.

Recent changes by the American Bar Association to the Rules of Professional Conduct illustrate just how tricky it can be today. Christina Vassiliou Harvey of Lomurro, Munson, Comer, Brown, & Schottland, LLC in Freehold, New Jersey, outlined some of the latest revisions that relate to social media, the Internet and ethics. Many states, but not all, have adopted the ABA revisions.

New ABA Rules

First, the ABA now requires attorneys to keep abreast of the law in this context, including knowing how the risks and benefits of relevant technology affect your work. “You can’t just bury your head in the sand anymore,” Harvey said.

She analogized a recent case involving a New Jersey sheriff who had a re-election fundraiser and linked to his official sheriff site. If it had been an attorney, this would have been an ethical violation, but the sheriff was not penalized because the court noted the confusion relating to the then-new technology. Now it is something that lawyers are expected to keep abreast of, Harvey said.

Rule of professional conduct 1.6 takes aim at maintaining the confidentiality of client information, and the recent amendment extends the rule to electronic information. It requires implementing safeguards, particularly when data is stored in the cloud. The rule also could be applied to case information an attorney might post on Twitter^®, in a blog or in email—you can’t inadvertently (or intentionally) disclose client confidences. Harvey suggested that if you do send something improper in an email you should ask a staffer to call, mention that it contains confidential material, and ask that it be deleted. “It’s a way to somewhat save face with your adversaries if this accidentally occurs,” she said.

Advertising Changes

Advertising rules related to technology also have expanded. Ads can now contain your email address and website address. The ABA commented that the Internet and other forms of electronic communication are permissible forms of advertising. The ABA made numerous other advertising revisions, including defining what a consultation is, spelling out how to pay online referral services, handling fee-sharing arrangements and Twitter posts that might be considered ads.

Blogs are another tricky area, Harvey said, “because you don’t want to, on your blog, disclose confidential information, which you might think is public, but isn’t.” Blogs also can present free-speech issues. A Florida lawyer had a problem with a judge’s ruling and blogged about it, including calling the judge an “evil, unfair witch.” The Florida bar disagreed that he was just expressing his right to free speech. Rule of Professional Conduct 8.4 says that a lawyer should not do anything to impact the administration of justice. The attorney has been reprimanded.

“I think where Florida came down ultimately was to say that although attorneys, like everyone else, certainly have very important rights of free speech, the bar also has a very important vested interest in regulating and protecting the reputation of its own bar,” said Robert L. Rogers III, Senior Counsel in Holland & Knight’s Orlando office.

In June, a New Jersey law clerk posted on a news site, in her personal capacity, that it wasn’t that sad or tragic that a state trooper had died in a collision with a deer, since the vehicle was probably traveling at a dangerous speed. Harvey said the law clerk has a duty to be fair and impartial, and even though this was her personal post, it still was a violation of the rules. The clerk was suspended and then she resigned.

Harvey also mentioned an attorney who complained on her personal Facebook^® page about having to work late at night to write a brief. Her superiors saw the post, thought it negatively impacted the organization by giving the impression that they were working their attorneys too hard, and they fired her.

In another case, a California attorney was serving on a jury and posting on his blog during the trial. The appeals court remanded the felony burglary conviction. The attorney’s license was suspended for 45 days. The California bar said his conduct was sanctionable because he had to follow the rules of professional conduct, even though he wasn’t acting as a lawyer at the time.

Litigation Concerns

On the litigation front, online and social media tools create opportunities, Rogers said. Young attorneys might be incredibly familiar with them and their risks, but others are not and need to learn to be careful when they use these resources.

What if you represent a client in litigation and you suspect that the adversary, who is represented by counsel, maintains a Facebook page that contains either statements or photos or posts that could be helpful to your position and harmful to the adversary? Are you ethically obligated to be able to advise your client intelligently on how you can access and use those potentially harmful posts? Rogers said you are, under your duty of competence.

What if the posting is private? Can you send a friend request to attempt to access the Facebook page? No, as doing so would violate rules prohibiting attorneys from communicating directly with parties known to be represented by counsel without that counsel’s consent. Can your secretary or savvy summer intern send the friend request? Again, no. Anything that applies ethically to a lawyer applies to his personnel.

But what if the opposing party is not represented by an attorney—Can the attorney send the unrepresented party a friend request?  Yes, but only in a way that doesn’t employ subterfuge or deception to conceal the attorney’s identity and intentions.  In other words, the attorney can’t send a friend request pretending to be the adverse party’s actual friend.

Of course, jurisdictions throughout the United States have struggled with determining how to avoid such deception.  Some have suggested that an attorney must affirmatively disclose his or her identity and who he or she represents when making the friend request, while others have suggested that the attorney needs only to disclose such information if asked.  The important lesson is to proceed with caution before sending a friend request to an adverse party to access information posted on a private social media page.

“These are the concerns you have to think about in terms of how you behave or how you allow those working on your team to behave,” Rogers said. “At the end of the day, you are far better off erring on the side of candor, rather than acting in any way that could cause you to later be accused of having acted deceptively.”

You can, after all, get social media posts through discovery, Rogers said.

Harvey noted though, that a great deal of free information is available, you just have to look for it. “I just had a two-week trial where I used social media and found out a lot of interesting things about our jurors, just by Googling them and then the Google™ led to Facebook and LinkedIn^®, and I learned a lot about the jury even before we went to sidebar. It helped us target the questions.”

Making Posts Disappear

What are your obligations if your client has problematic Facebook posts? Rogers said you can’t recommend your client remove the harmful posts—this would encourage spoliation of evidence and violate ethical rules. So, how do you deal with those issues? First, make sure your client knows to avoid any future posts that might harm the case. You can also tell your client to change the privacy settings to make the damning information less public.

What about posts that are embarrassing but do not relate to evidence in the case? Rogers said it is fair game for removal, as long as you are strongly confident that it is not pertinent to any disputed material facts. But this also requires a strong understanding of all conceivable disputed material facts in the case, including some that may not yet have arisen in the litigation.  So again, proceed with extreme caution before recommending that your client remove social media posts.

Can you advise them to remove the post but keep a paper copy of it? Rogers said, probably not because the opposing party may not know to seek that information through discovery if the party did not know it was ever there. Harvey noted that important metadata, such as time stamps, can be lost that way. This can be crucial to preserve. The same is true of deactivating a social media account.

You should put all of this in writing to your client, the attorneys cautioned. This will protect you if the client removes posts against your advice.

“I think it’s comparable to a litigation hold letter that you give to your corporate clients in matters where information is relevant to your litigation, and you do have a duty to tell your client not to destroy it,” Harvey said.

This article is derived from a LexisNexis Webinar held in July.