Social media is an excellent tool for lawyers when they’re working to settle or litigate matters for the best interest of their clients. However, it’s imperative that lawyers know, understand, and adhere to jurisdictional ethics related to how they obtain and use information they find on social media. Here are some key tips lawyers can use to prevent an ethics complaint. Remember that these tips are published here as an educational guide. You should always check the rules in your jurisdiction to ensure that you are compliant.
Don’t Friend Your Clients
As Megan Zavieh previously wrote about for Lawyerist.com, don’t friend or follow your clients from your personal account. Friending clients on Facebook can cause your clients to think that you don’t work enough, pay enough attention to their matter, that you’re paid too much, and they tend to learn a little too much about your personal life. If you have clients who are already on your friends list for your personal account, make sure that you use your privacy settings to limit what they can see.
If you’re using “official” pages for your law office, be very careful about what you post. You can set up “official” pages that allow clients and potential clients to “like” or “follow” you or your law office.
Using Social Media to Learn About Opposing Parties
Social media can be a gold mine for lawyers. While you can find a plethora of information about opposing parties, their employees, and even witnesses, you should ensure that you’re following the jurisdictional rules related to social media. Common uses of social media include reviewing public posts to learn about that particular person. Keep in mind that just because it’s on social media doesn’t necessarily make it true. Any facts you learn, such as where someone said they went to school or college, should be verified.
Private Social Media Pages and Lawyers
So, if a lawyer looks up an opposing party or non-party witness on social media and discovers that the person keeps a private profile, what should they do? Ultimately, that’s determined by your jurisdictional rules. The following partial list of rules can give you some good guidance.
Association of the Bar of the City of New York
According to Association of the Bar of the City of New York Committee on Professional Ethics Formal Opinion 2010-002, a lawyer isn’t allowed to engage in “trickery” to access a private personal media sites. What’s “trickery?” Examples include the creation of a fake social media profile under the name the targeted individual would recognize and accept a request from or setting up a fake account with similar interests and background information that may reasonably lead the target to believe they know or would like to know the person.
It’s also important to point out that under this Formal Opinion, it is acceptable for a lawyer to send a direct friend request to someone who is unrepresented under their real name without explaining to the target why they are receiving the friend request.
Philadelphia Bar Association
According to the Philadelphia Bar Association Professional Guidance Committee Opinion 2009-02, it’s important that lawyers must disclose to the target why they are receiving the friend request. If a lawyer doesn’t they can be investigated by the ethics committee for “conduct involving dishonesty, fraud, deceit or misrepresentation deceitful.” If a third party is used to set up the social media profile for the lawyer to use in some way, the lawyer may still be investigated for an ethical violation.
San Diego County Bar
The San Diego Bar Legal Ethics Committee issued Opinion 2011-2. In that Opinion, the Legal Ethics Committee, addressed friend requests sent by a lawyer in their own name to any individual within an organization that is a represented opposing party. In San Diego County, the lawyer is not allowed to friend an employee of a represented party.
Oregon State Bar Association
In Oregon, the Oregon State Bar Association issued Opinion No. 2005-164 to address both public websites and using online communication. They determined that online communication is no different than traditional written communication. Therefore, the same rules apply to online communication. Zavieh Law has interpreted the opinion, written in 2005, to state that even an honest friend request is not allowed with a represented party.
Don’t Face Disciplinary Action Alone
If you are the recipient of a letter from the ethics committee regarding social media use, don’t face it alone. Zavieh Law provides limited and full scope representation. To schedule your appointment with Megan Zavieh, follow this link.
If you receive an ethics complaint from the California Bar and you’re not sure where you should start, check out The State Bar Playbook. This is Megan’s interactive and easy to use guide (and community!) that will help guide you through the process from receipt of the complaint all the way through the appeals process!