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Facing Up to Facebook—Ethical Issues With Lawyers’ Use of Social Media

Aug. 5, 2014, 4:00 AM

Indiana attorney James Hanson was probably having a bad day when he wrote a Facebook post to the ex-husband of the client he was representing in both a divorce and a misdemeanor domestic battery case. And the 41-year-old lawyer says he only intended to send a message that the ex should expect a vigorous defense. Still, the profanity-laced post illustrates one of the many ethical traps lurking in the digital domain for lawyers—communicating without any filters or regard for appropriate, confidential communications.

Hanson wrote, “You pissed off the wrong attorney … I’m going to gather all the relevant evidence and then I’m going to anal rape you so hard your teeth come loose … . Watch your ass you little [expletive deleted]. I’ve got you in my sights now.”

That online tirade resulted in Hanson being arrested and charged with felony intimidation, a crime punishable by jail time and a fine up to $10,000. 1Martha Neil, Lawyer Charged with Felony Intimidation over Facebook Message to Client’s Ex-Husband, ABA J., May 23, 2014, available at http://www.abajournal.com/news/article/divorce_lawyer_charged_with_intimidation_over_facebook_message_to_clients.

Avoid Online Missteps

Lawyers practicing in the digital age have to pay particular heed to avoiding such online missteps.

Social networking platforms such as Facebook, Twitter, YouTube, and LinkedIn have certainly revolutionized the way people communicate and share information. Facebook boasts over 1.2 billion users worldwide. 2Number of Active Users at Facebook Over the Years, Associated Press, May 1, 2013, available at http://news.yahoo.com/number-active-users-facebook-over-230449748.html. Twitter has gone from processing 5,000 tweets a day in 2007 to over 400 million a day in 2013. 3Richard Holt, Twitter in Numbers, Telegraph, Mar. 21, 2013, available at http://www.telegraph.co.uk/technology/twitter/9945505/Twitter-in-numbers.html. According to the Pew Institute, 72 percent of adults in the United States maintain at least one social networking profile. 4Joanna Brenner & Aaron Smith, Pew Research Center, 72% of Online Adults Are Social Networking Site Users 2 (2013), available at http://www.pewinternet.org/files/old-media//Files/Reports/2013/PIP_Social_networking_sites_update_PDF.pdf.

Not surprisingly, lawyers have embraced social media as well; according to a study by American Lawyer Media, nearly 75 percent of law firms in the United States employ one or more social networking platforms for marketing purposes. 5Highlights from the 2012 Am Law Tech Survey, Am. Lawyer, Nov. 16, 2012, available at http://www.americanlawyer.com/id=1202575625114/Highlights-from-the-2012-Am-Law-Tech-Survey (registration required).

Beyond its use as a marketing tool, social networking has proven to be a digital treasure trove of information for cases. In 2010, only 6 percent of attorneys reported using sites such as Facebook for case investigation, according to the American Bar Association. But when the ABA performed the same survey in 2012, 44 percent of the responding attorneys were doing so. 6Robert Ambrogi, ABA Survey Shows Growth in Lawyers’ Social Media Use, (Aug. 16, 2012), http://www.lawsitesblog.com/2012/08/aba-survey-shows-growth-in-lawyers-social-media-use.html.

In an age in which people seemingly share all kinds of details of their lives online, lawyers in virtually all practice areas have found social media to be a valuable avenue for discovery.

However, embracing these emerging technologies also raises new ethical questions for lawyers. The first question goes to the very core of an attorney’s duties to a client—the duty to provide competent representation.

While lawyers who are uncomfortable with the pace of technological innovation may be tempted to stick their heads in the sand when it comes to social media, they cannot really afford to, thanks to the recent changes to the ABA Model Rules of Professional Conduct. Rule 1.1 of the Model Rules, which discusses competence, was expanded in August 2012 to make it clear that competent representation does not just mean keeping current in case law or statutory developments in one’s area of practice anymore, but also now encompasses staying abreast of “the benefits and risks associated with relevant technology,” including how such advances impact conducting investigations, engaging in legal research, advising clients, and conducting discovery. 7ABA Commission on Ethics 20/20, Report to the House of Delegates Resolution 105A, at 6 (Aug. 2012), available at http://www.americanbar.org/content/dam/aba/administrative/ethics_2020/20120808_revised_resolution_105a_as_amended.authcheckdam.pdf.

Standards for Using Online Resources

A number of jurisdictions around the country have already begun holding attorneys to a higher standard when it comes to making use of online resources, including demonstrating due diligence, researching prospective jurors and even locating and using exculpatory evidence in criminal cases. 8See, e.g., Cannedy v. Adams, 706 F.3d 1148 (9th Cir. 2013) (holding that a lawyer’s failure to locate a sexual abuse victim’s recantation on her social media profile could constitute ineffective assistance of counsel); New Hampshire Bar Association Ethics Committee Advisory Opinion No. 2012-13/05 (June 2013), available at http://www.nhbar.org/legal-links/Ethics-Opinion-2012-13_05.asp.

As “digital digging” becomes the norm, it becomes harder for an attorney to say he or she has met the standard of competence when the attorney has ignored social media avenues. For example, in an era in which it has become standard practice for divorce lawyers to comb the Facebook pages of both the client and the adverse spouse (the American Academy of Matrimonial Lawyers surveyed its members, and 81 percent reported using evidence from social networking sites in their cases 9Press Release, Am. Acad. of Matrimonial Lawyers, Big Surge in Social Networking Evidence Says Survey of Nation’s Top Divorce Lawyers, (Feb. 10, 2010), available at http://www.aaml.org/about-the-academy/press/press-releases/e-discovery/big-surge-social-networking-evidence-says-survey-.), can a lawyer who fails to do so truly profess competence?

However, many of the ethical quandaries that social networking presents for lawyers arise out of the manner in which attorneys use (or misuse) these sites.

Consider the practice of using social media sites to gather information about a party or witness, for example. While there generally is no ethical prohibition against viewing the publicly available portion of an individual’s social networking profile, may an attorney (or someone working for that attorney) try to “friend” someone in order to gain access to the privacy-restricted portions of that profile? Ethics opinions from the Philadelphia Bar Association (March 2009), the New York City Bar (September 2010), the New York State Bar (September 2010), the Oregon Bar (February 2013), the New Hampshire Bar (June 2013), and others have made it clear that the rules of professional conduct against engaging in deceptive conduct or misrepresentations to third parties extend to cyberspace as well. 10Philadelphia Bar Ass’n Prof’l Guidance Comm. Op. 2009-02; Ass’n of the Bar of the City of N. Y. Comm. on Prof’l and Judicial Ethics, Formal Op. 2010-2; N. Y. State Bar Ass’n Comm. on Prof’l Ethics, Op. 843; Or. State Bar, Formal Op. 2013-189, New Hampshire Bar Association Ethics Committee Advisory Opinion No. 2012-13/05 (June 2013).

As the New York City Bar ethics opinion emphasizes, with deception being even easier in the virtual world than in person, this is an issue of heightened concern.

No ‘False Friending’

Not surprisingly, lawyers have found themselves in ethical hot water for engaging in such “false friending.”

A Cleveland, Ohio, insurance defense law firm, along with the insurance carrier that retained it and the investigator it hired, were slapped with a civil suit in 2012 for invasion of privacy after the investigator gained access to the Facebook page of a minor plaintiff in a dog-bite case by posing as one of the girl’s friends. In June 2013, Cuyahoga County, Ohio, assistant prosecutor Aaron Brockler was fired after he posed as a murder defendant’s fictional “baby mama” on Facebook in order to communicate with two female alibi witnesses for the defense and try to persuade them not to testify. County Prosecutor Timothy McGinty had to withdraw his office from the case and hand it over to the Ohio Attorney General, but not before acknowledging that Brockler had “disgraced this office and everyone who works here” by “creating false evidence” and “lying to witnesses.” 11James F. McCarty, Cuyahoga County Prosecutor Fired After Posing as an Accused Killer’s Girlfriend on Facebook to Try to Get Alibi Witnesses to Change Their Testimony, Cleveland Plain Dealer, June 6, 2013, available at http://www.cleveland.com/metro/index.ssf/2013/06/cuyahoga_county_prosecutor_fir.html.

Similarly, even though Rule 4.2 of the Model Rules of Professional Conduct prohibits communicating with a represented party, lawyers have had to be reminded that this applies to all forms of communication, including via social networking. The San Diego County Bar Association Ethics Committee addressed this in a May 2011 opinion dealing with a plaintiff’s lawyer in an employment lawsuit seeking to use Facebook to contact employees of the company he had sued. 12See San Diego Cnty. Bar Ass’n Ethics Comm., Legal Ethics Op. 2011-2 (2011), available at http://www.sdcba.org/index.cfm?pg=LEC2011-2.

Two defense attorneys in New Jersey currently face disciplinary action for allegedly directing their female paralegal to “friend” the young male plaintiff during the course of a personal injury lawsuit in order to gain access to information from his privacy-restricted Facebook profile. 13For a more detailed discussion, see John G. Browning, Keep Your “Friends” Close and Your Enemies Closer: Walking the Ethical Tightrope in the Use of Social Media, 3 St. Mary’s L.J. on Legal Malpractice & Ethics 204 (2013).

Duty to Preserve Information

In addition to using social networking sites for gathering information, the ethical duty to preserve information is another concern in the age of Facebook and Twitter.

While no lawyer wants to discover embarrassing photos or comments on a client’s Facebook page that might undermine the case, Rule 3.4 prohibits an attorney from unlawfully altering or destroying evidence or assisting others in so doing.

Clearly, a lawyer’s ethical duty to preserve electronically stored information encompasses content from social networking sites. Yet this, too, is a lesson that some lawyers learned the hard way.

For example, in the Virginia wrongful death case of Lester v. Allied Concrete in 2012, the plaintiff’s attorney directed his paralegal to instruct the client to delete content from his Facebook page that depicted him as something less than a grieving widower (the Facebook photos in question depicted the young man in the company of young women, wearing a shirt that read “I ♥ Hot Moms”). The attorney also had his client sign sworn interrogatories stating that he didn’t have a Facebook account.

After a $10.6 million verdict for the plaintiff, the defense brought a motion for new trial based on spoliation of evidence. The trial judge cut the damages award in half (the Virginia Supreme Court later reinstated the full verdict) and imposed sanctions of $722,000 (most of which were against the plaintiff’s counsel) for an “extensive pattern of deceptive and obstructionist conduct.” 14Allied Concrete Co. v. Lester, 736 S.E.2d 699 (Va. 2013).

The attorney, a partner in the largest plaintiff’s personal injury firm in the state and a past president of the Virginia Trial Lawyers Association, had his license to practice law suspended for five years by the Virginia Bar in June 2013.

Poor Judgment Plagues Lawyers

Unfortunately, poor judgment plagues lawyers just like anybody else, and social networking sites have provided a wider audience than ever for such lapses.

In 2012, an assistant public defender in Miami-Dade County (Florida) was fired after she posted a photo of her murder defendant client’s leopard print underwear on Facebook along with a snarky caption (she also posted some comments that questioned her client’s innocence). 15David Ovalle, Lawyer’s Facebook Photo Causes Mistrial in Miami-Dade Murder Case, Miami Herald (Sept. 13, 2012).

Several veteran federal prosecutors in New Orleans resigned in the wake of revelations that they were anonymously discussing cases they were handling and parties they were investigating on a newspaper’s blog. 16Sari Horwitz, New Orleans U.S. Attorney Resigns Amid Scandal Over Anonymous Online Postings, Wash. Post (Dec. 6, 2012), available at http://www.washingtonpost.com/world/national-security/new-orleans-us-attorney-resigns-amid-scandal-over-anonymous-online-postings/2012/12/06/c95c0d4a-3ef1-11e2-bca3-aadc9b7e29c5_story.html.

An Illinois criminal defense attorney received a suspension following his posting on YouTube of a discovery video of an undercover drug buy in an attempt to sway public opinion (the lawyer, who also linked to the video on Facebook, later acknowledged that instead of depicting drugs being “planted,” the video actually appeared to incriminate his client). 17In re Gilsdorf, No. 12PR0006 (Ill. Att’y Registration & Disciplinary Comm’n Feb. 6, 2012), available at https://www.iardc.org/12PR0006CM.html.

In July 2012, a former prosecutor in Virginia was charged with making a felony threat after he allegedly posted messages on Facebook threatening bodily injury to his former employer. 18Louis Hansen, Ex-Norfolk Prosecutor Charged Over Facebook Posts, Virginia-Pilot (July 27, 2012), available at http://hamptonroads.com/2012/07/exnorfolk-prosecutor-charged-over-facebook-posts.

In California, a prominent commercial litigator had to explain himself in court after he tweeted about a case and linked to documents that the court had placed under seal. 19John G. Browning, The Lawyer’s Guide to Social Networking: Understanding Social Media’s Impact on the Law (West 2010).

And while Virginia may be for lovers, what happens when the relationship is over and intimate photos are leaked online by a revengeful ex? One Virginia county prosecutor is currently embroiled in a legal battle with an ex-lover (and prominent Missouri attorney) over nude photos of her that the ex had posted on Twitter. 20Debra Cassens Weiss, Prosecutor’s Nude Photos Ended Up on Twitter; She Blames Prominent Lawyer, Her Ex, in Complaint, ABA J. (Sept. 26, 2013), available at http://www.abajournal.com/news/article/prosecutors_nude_photos_ended_up_on_twitter_she_blames_prominent_lawyer_her/.

Meanwhile, in Florida, assistant state attorney Kenneth Lewis has ignited a firestorm of controversy with references on his Facebook page to “crack hoes” who should get their tubes tied and a complaint about affirmative action, complete with a photo of U.S. Supreme Court Justice Sonia Sotomayor and the line, “Where would she be if she didn’t hit the quota lottery? Here’s a hint: ‘Would you like to supersize that sir?' ” 21Mike DeForest, Prosecutor’s Facebook Comments Draw Scrutiny, ClickOrlando, May 21, 2014, http://www.clickorlando.com/news/prosecutors-facebook-comments-draw-scrutiny/26105442.

‘Facebooking the Jury’

Another area in which lawyers’ use of social media can raise ethical questions is jury selection. Should lawyers probe the online selves of prospective jurors?

The Missouri Supreme Court actually has imposed an affirmative duty on lawyers to conduct certain Internet background searches of potential jurors (specifically that juror’s litigation history), if the lawyer plans to argue juror bias related to his/her litigation history. 22See Johnson v. McCullough, 306 S.W. 3d 551 (Mo. 2010) (en banc); Missouri Supreme Court Rule 69.025.

Four ethics opinions, including an ABA Formal Opinion, have addressed the issue of “Facebooking the jury.”

In the first of these, the New York County Lawyer’s Association Committee on Professional Ethics held in 2011 that “passive monitoring of jurors, such as viewing a publicly available blog or Facebook page” is permissible so long as lawyers have no direct or indirect contact with jurors during trial.

Subsequent opinions from the New York City Bar Association (2012) and the Oregon Bar (2013) agreed with this, while sounding a cautionary note to lawyers that even accessing a prospective juror’s Twitter profile or LinkedIn profile could cause the juror to learn of the lawyer’s viewing or attempted viewing. Such contact, according to both ethics committees, “might constitute a prohibited communication even if inadvertent or unintended.”

In other words, as with other aspects in which lawyers might use social media, ignorance or lack of familiarity will not be an excuse in committing an ethical violation. 23For a more detailed discussion, see John G. Browning, As Voir Dire Becomes Voir Google, Where Are the Ethical Lines Drawn?, Jury Expert, Vol. 25, No. 3 (May/June 2013). In fact, this very topic recently was raised in the high profile “Hustle” mortgage fraud case brought against Bank of America over its Countrywide unit. A juror claimed improper contact in violation of the federal judge’s pretrial order after a first year associate with one of the defense firms looked at his LinkedIn profile, and the juror received a notification from LinkedIn of the viewing.

In April 2014, the ABA weighed in on this issue with Formal Opinion 466. Like the earlier state ethics opinions, it too concluded that a lawyer is ethically permitted to review a juror’s social networking presence, provided that no contact is made with the juror.

However, the ABA opinion diverges from its state counterparts in its consideration of whether auto alerts by sites such as LinkedIn or Twitter to the juror/user that her profile is being viewed would constitute impermissible contacts. Formal Opinion 466 doesn’t see this as a problem, stating that “The fact that a juror or potential juror may become aware that a lawyer is reviewing his Internet presence when a network setting notifies the juror of such does not constitute a communication from the lawyer in violation of Rule 3.5(b).” 24American Bar Association Standing Committee on Ethics and Professional Responsibility, Formal Opinion 466 (Apr. 2014), available at http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/formal_opinion_466_final_04_23_14.authcheckdam.pdf.

Still, even with the cautious seals of approval from the ABA and various state ethics bodies, “Facebooking the jury” is not without its risks. Former Travis County (Texas) assistant district attorney Steve Brand found this out after he was fired in June 2014 for alleged racially insensitive remarks stemming from his Facebook research of a potential juror.

Noting the juror’s NAACP membership and a link on her Facebook page to a Jim Crow-era travel guide for African-Americans, Brand struck the “activist” during jury selection. A Batson challenge was asserted and rejected by one judge before being granted by another.

After reviewing the transcript of the Batson hearing, District Attorney Rosemary Lehmberg terminated Brand, saying that “his statements did not reflect my opinions or my values or those of our organization.” 25Tony Plohetski & Jazmine Ulloa, DA Lehmberg: Prosecutor Fired over Racially Insensitive Statements, Austin American-Statesman, June 11, 2014, available at http://www.mystatesman.com/news/news/crime-law/da-lehmberg-prosecutor-fired-over-racially-insensi/ngJ2z/.

Questions Remain

Many ethical questions regarding an attorney’s use of social networking remain to be explored.

For example, the Florida Bar’s Professional Ethics Committee is currently considering just how far attorneys may go in advising clients about their social media postings. The questions it will weigh include, “Can an attorney advise a client to remove information that is unrelated to why the lawyer was hired? Can the lawyer advise a client on what privacy setting to use? Before litigation, does the lawyer have the duty to advise a client not to remove postings?” 26Mary Hladky, Can Attorneys Tell Clients to ‘Clean Up’ Facebook Page?, Daily Bus. Rev., June 2, 2014, available at http://www.dailybusinessreview.com/id=1202657279979/Can-Attorneys-Tell-Clients-To-Clean-Up-Facebook-page?slreturn=20140607163807 (registration required).

As long as social networking platforms such as Facebook and Twitter remain a fertile area for diligent lawyers seeking information on opposing parties and witnesses (and even jurors), the potential for misusing such media will exists.

Just as doctors need the occasional “Physician, heal thyself” admonishment, lawyers would do well to follow the same counsel they should be giving their clients.

Treat social media no differently from more traditional forms of communication, subject to the same ethical rules. Have a working knowledge of the functionality of those sites, particularly privacy settings. And most important, refrain from posting anything online that you would not want your opposing counsel, a judge, or the bar disciplinary authorities to see.

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