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Avoiding Ethical Minefields in Social Media
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Avoiding Ethical Minefields in Social Media

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The growing world of Social Media has become an increasingly important tool for attorneys that presents a new set of ethical issues in practice.

The social media sites most widely used by attorneys include Facebook, Twitter, Youtube, LinkedIn, Google Plus and Avvo. Facebook is used to build a client-fan base and offers new ways to communicate with possible clients. Twitter is used for microblogging and helps attorneys brand themselves to a new, younger clientele. LinkedIn is a professional networking site similar to Facebook but widely used by professionals and employers.

The following scenarios explore some of the ethical issues attorneys face in using social media:

 

Obtaining Evidence from Social Media

A question many attorneys face is whether or not they may use a social media site to obtain information about someone for use in litigation. One of the main aspects of social networking sites is that the user sets their own privacy standards and determines what information is provided or shared and who that information is accessible to. For the attorney seeking information for litigation, the best chance you have is for this person’s profile, page or feed to be available to the public. Information offered to the general public is fair game for litigation. However, for the person whose privacy settings are tight, you will not be able to access their information without connecting with this person. The ethical issue arises when the attorney uses deceptive practices or a third-party agent to gain access to this persons information; in other words, deceiving the person into giving you access to private information. An attorney must never use deception, misrepresentation or under false pretenses obtain access (become friends) with someone for the purpose of using that information in litigation.

 

Impeachment with Social Media

When using social networking sites to gain information for purposes of impeaching a witness, the same rules of deception and misrepresentation discussed above will apply. Additionally, the rules will also apply if another attorney in your firm or an investigator you have hired is seeking to gain the information for impeachment. If you request to become a witness’s friend on Facebook  for the purpose of obtaining this information for impeachment, their lack of wariness in accepting your friendship is immaterial. However, whatever information is obtainable without seeking access to private material – information not protected by privacy settings – is always permissible.

Always remember in every situation, an attorney should never contact a person represented by counsel in litigation. This includes connecting with this person on social networking sites. You should avoid adding or communicating with represented parties through social media in the same way you would in real life. The court will extend the rules regarding contact with represented parties to include adding as a friend on Facebook or asking to follow their Instagram account.

 

Using Social Media for Outside Juror Investigation and Communication

With the advent of internet-based social networking services, additional complexities are introduced to the traditional rules barring contact between attorney and jurors during trials.

As a matter of law, ethically an attorney can not have either direct or indirect communication with jurors outside the courtroom The main rule in investigating jurors on social media is you can only passively monitor information accessible to the general public. It is proper and ethical under to undertake a pretrial search of a prospective juror’s social networking site, provided that there is no contact or communication with the prospective juror and the lawyer does not seek to “friend” jurors, subscribe to Twitter accounts, send tweets or otherwise contact them. Further, the attorney may never act in any way by which the juror becomes aware of your monitoring. And of course, no deceit or misrepresentation may occur in order to monitor information from these sites. You must be careful here, it is always better to steer clear of all communication with jurors outside of the courtroom. As for post-trial communications, the general rules apply regarding harassment and unwanted contact with jurors.

 

Ex Parte Contact

Many attorneys question whether a friend or connection request constitutes an unethical ex parte contact. The general rule is that an attorney who makes an ex parte “friend request” to a represented party is making ex parte contact and such contact is prohibited. However, attorneys may ethically view and access the Facebook profiles of a party other than the lawyer’s client in litigation as long as the party’s profile is available to all members in the network and the attorney neither “friends” the other party nor directs someone else to do so. The attorney-client privilege does not protect anything a party posts on their Facebook page, even if the page is accessible only to a limited circle of people.

Social Media may present a whole new set of ethical issues to your practice but it’s importance in growing your firm or your own career should not be overlooked. The risk is highly outweighed by the reward if you are mindful of the ethical pitfalls.

 

How To Earn CLE Credit on this Topic

For additional information on this topic, Attorney Credits offers a course titledEthics in a Web 2.0 World.”

The course is available for CLE credit in the following states: Alaska (AK) | Arizona (AZ) | California (CA) | Colorado (CO) | Connecticut (CT) | District of Columbia (DC) | Florida (FL) | Georgia (GA) | Illinois (IL) | Maryland (MD) | Massachusetts (MA) | Michigan (MI) | Minnesota (MN) | Missouri (MO) | Nevada (NV) | New Jersey (NJ) | New York (NY) | Oregon (OR) | Pennsylvania (PA) | South Dakota (SD) | Texas (TX) | Washington (WA)

 

James Nguyen
James Nguyen

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