Trending: Social Media in Today’s Law Practice

Social media has seeped into almost every aspect of our lives. We are transmitting and sharing information with just the click of a button through one, if not multiple, social networks on a daily, even hourly basis. Venues like Facebook, Twitter, Google+, and LinkedIn are fast becoming the dominant communication platforms of the future, as they morph personal privacy into a vastly more limited space.[1]

With the use of social media becoming increasingly popular, could failing to use these platforms, or perhaps using these platforms inappropriately, subject an attorney to sanctions and/or a malpractice lawsuit? Probably, yes!

The number of lawyers joining social networks to expand their professional and personal online presence is growing.[2] According to the 2013 ABA Legal Technology Survey Report, eighty-one percent of US attorneys reported using social networks for professional purposes, fifty-eight percent of law firms surveyed have Facebook accounts, and thirty-three percent of lawyers have their own page on Facebook.[3] In addition, the study found that nineteen percent of law firms tweet, while eighty-eight percent of firms and ninety-eight percent of individual lawyers surveyed have LinkedIn accounts.[4]

As social media becomes increasingly ubiquitous in every aspect of life, concerns about ethical violations and liability of attorneys related to the use of this social media has also increased. Attorneys’ participation on social network sites is inherently risky due to the blurring line between professional and personal posting. Legal ethics regulators across the country are implementing guidelines and placing duties on bar members’ use of social media, such as deciding whom an attorney can or cannot “friend,” what an attorney can or cannot link on his page, and acceptable ways to communicate with his or her followers. For example, the Florida Bar concluded that judges should not be social media “friends” with lawyers who may appear before them;[5] however, the American Bar Association held that a judge could be “friends” with lawyers because that friendship does not necessarily connote a relationship showing bias of a need for recusal[6].

Today, venting on Facebook, hash-tagging feelings on twitter, and checking in to that restaurant for dinner is second nature for today’s law students and first year associates. In this day and age, where people seemingly share all kinds of details about their lives online, one glaring concern attorneys need to be aware of is securing client confidentiality. Rule 1.6 of the ABA Model Rules of Professional Conduct requires a lawyer “to refrain from revealing information relating to the representation of a client unless the client gives informed consent.”[7] An attorney’s duties of confidentiality require the attorney to take appropriate steps to ensure his or her use of technology is in conjunction with the client’s representation and does not subject confidential client information to an undue risk of unauthorized disclosure. Posting client information on a social network or in a blog can violate these rules, despite the fact that the potential readers may be limited to “friends” or some other subset of users. One Florida prosecutor raised a number of concerns for ethics lawyers after posting on his Facebook page, during the second day of trial, a “ditty” describing the “trial from hell” that could be sung to the tune of “Gilligan’s island.”[8] The prosecutor alleged only his friends could view the post; however, the ditty was publically displayed all over the news, proving that social media privacy settings are not necessarily a reliable protection[9].

One of the obstacles with social media platforms, as opposed to other types of communication tools, is that disclosures of information may be inadvertent. Different social media platforms have different privacy settings to regulate how much user information is publically visible. Due to the differences in security features and privacy settings available for each social platform, attorneys must proceed with caution and constantly monitor their use of social media when referencing clients’ cases. [10] In fact, awareness of the implications of social media use and familiarity with the functions of each social media application may arguably be required in order for attorneys to effectively protect their clients.

In August of 2012, the ABA expanded Model Rule 1.1, which describes the level of competence an attorney must provide to his or her client, to state that ‘[t]o maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology”.[11] Although this model rule does not state that attorneys must use social media, the Committee is making it clear that competent representation requires a level of familiarity and control over these social networking sites[12]. Competence may even command that lawyers have “an obligation to advise clients concerning what steps to take to mitigate any adverse effects on the clients' position radiating from the clients' social media participation.[13]

Social media platforms are a gold mine of information about people’s likes and dislikes, about the activities they perform on a daily basis, about who they are friends with or not friends with, and so much more. Attorneys are beginning to see how social media can be used as an asset in case development for tasks such as conducting discovery, preserving evidence, and researching prospective jurors. [14] For example, divorce attorneys have found damaging information about the opposing spouse by combing their Facebook page[15], while personal injury lawyers have discovered injurious information concerning a plaintiff’s exaggeration of alleged injuries by reviewing the plaintiff’s online presence.[16]. A recent example comes from the Zimmerman case. One potential juror was dismissed because during voir dire questioning, he stated he had little knowledge of the case at bar; however, his Facebook activity indicated otherwise -- he had posted “I CAN tell you THIS, ‘Justice’…IS Coming.”[17] With social media becoming an important tool for attorneys, is an attorney who does not employ the use of these tools competently representing their client?

Still, a line has to be drawn. With lawyers becoming more familiar with social media outlets, situations are coming to light where attorneys are overusing or professionally misusing these social networks. While no ethical prohibition exists against viewing the publicly available portion of an individual’s social networking profile, many jurisdictions have made it clear the rules of professional conduct are against engaging in deceptive conduct or misrepresentation to third parties on social media platforms. For instance, Florida courts have ruled that information contained on individual social media pages was discoverable if the party seeking discovery could prove that the information is relevant to the case; however, parties in a lawsuit may not engage in general fishing expeditions when the information sought on social media pages is clearly not relevant.[18]

Navigating the digital frontier may prove challenging, especially when technology changes so rapidly. Still, despite the risks associated with participating on these social media platforms, the opportunities these ubiquitous forms of communications bring to the legal profession are significant. As social media participation continues to grow, bar associations may need to further clarify what attorneys can and cannot do regarding social media; however, a truly competent lawyer will learn how to utilize these online resource appropriately.[19]

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[1] Rick Whiting, Facebook's Zuckerberg: Face It, No One Wants Online Privacy Anymore, CRN (Jan. 11, 2010, 10:36 AM), http:// www.crn.com/news/security/222300279/facebooks-zuckerberg-face-it-no-one-wants-online-privacy-anymore.htm.

[2] Danah M. Boyd & Nicole B. Ellison, Social Network Sites: Definition, History, and Scholarship, 13 J. Computer-Mediated Comm. 210, 214 (2008).

[3] Allison C. Shields, Communicating in the Online Era: Blogging and Social Media, ABA Annual TechReport 2013, (ABA sent questionnaires to 12,500 ABA-member lawyers in private practice and 823 completed the questionnaires).

[4] Id.

[5] Fla. Jud. Ethics Advisory Comm., Formal Op. 2009-20 (2009).

[6] ABA Comm. on Ethics & Prof'l Responsibility, Formal Op. 462 (2013). See also Jan Jacobowitz, Same Rules, Different Application: The ABA Formally Opines on Judges Using Social Media, Legal Ethics in Motion (Feb. 21, 2013).

[7] ABA Comm. on Ethics & Prof'l Responsibility, Formal Op. 11-459 (2011) (quoting Model Rules of Prof'l Conduct 1.6(a) (1983)).

[8] Martha Neil, ‘Trial From Hell’: Prosecutor Posts on Facebook; Jurors Text; Bailiff Chats in Deliberations, ABAJournal, April 22, 2010, available at: http://www.abajournal.com/news/article/trial_from_hell_prosecutor_posts_on_facebook_jurors_text_bailiff_chats_in_d/.

[9] Id.

[10] In re Kristine Ann Peshek, Disciplinary Comm'n, M.R. 23712 (Ill. May 18, 2010), available at http:// www.state.il.us/court/SupremeCourt/Announce/2010/051810.pdf.

[11] Model Rules of Prof’l Conduct R. 1.1 cmt. 8 (2013).

[12] Margaret M. DiBianca, Ethical Risks Arising from Lawyers' Use of (and Refusal to Use) Social Media, 12 Del. L. Rev. 179, 183 (2011) “[i]f the diligent attorney must be zealous in pursuing a matter on his client's behalf, it seems possible that more than familiarity may be required--actual use of social media may be necessary.”

[13] N.Y. Cnty. Lawyers' Ass'n, Formal Op. 745 (2013) (“Thus, an attorney may properly review a client's social media pages, and advise the client that certain materials posted on a social media page may be used against the client for impeachment or similar purposes.”).

[14] John G. Browning, Digging for the Digital Dirt: Discovery and Use of Evidence from Social Media Sites, 14 SMU Sci. & Tech. L. Rev. 465, 470 (2011) (“[I]f the use of social media tools continues to increase as predicted, it may be possible that, soon, a basic awareness of social media will be necessary for the competent practice of law.”); Robert B. Gibson & Jesse D. Capell, Researching Jurors on the Internet--Ethical Implications, 84 N.Y. St. B.J.11, 12 (2012) (A Florida lawyer filed a complaint to recover compensation for injuries sustained by his client when she was forced to clean a machine in a confined space. The lawyer conducted Internet research on the jury venire and learned that one prospective juror belonged to a support group for claustrophobics. The person was selected for the jury and served as the foreman. The jury came back with a verdict in favor of plaintiff.)

[15] Leanne Italie, Facebook is divorce lawyers’ new best friend, NBCNews.com, (2010) available at, http://www.nbcnews.com/id/37986320/ns/technology_and_science-tech_and_gadgets/t/facebook-divorce-lawyers-new-best-friend/#.Uzq37igoA5s, (The American Academy of Matrimonial Lawyers surveyed its members, and 81 percent reported using evidence from social networking sites in their cases.)

[16] Christopher B. Hopkins & Tracy T. Segal, Discovery of Facebook Content in Florida Cases, Trial Advoc. Q. 14, 14 (2012) (noting that “In specific cases, Facebook content revealed that some personal injury plaintiffs may have exaggerated their injuries.”)

[17] Elicia Dover, Did Potential Zimmerman Juror Lie to Court?, ABCNews (2013) http://abcnews.go.com/blogs/headlines/2013/06/did-potential-zimmerman-juror-lie-to-court/.

[18] Beswick v. Northwest Med. Ctr., Inc., No. 07-020592 CACE (03), 2011 WL 7005038(Fla. 17th Cir. Ct. Nov. 3, 2011) (Defendants sought discovery of information Plaintiff shared on social networking sites concerning her noneconomic damages, and the court found this information to be “clearly relevant to the subject matter of the current litigation and... reasonably calculated to lead to admissible evidence.”); Levine v. Culligan of Fla., Inc., No. 50-2011-CA-010339-XXXXMB (Fla. 15th Cir. Ct. 2013), (finding that “the critical factor in determining when to permit discovery of social media is whether the requesting party has a basis for the request” and that “Defendant ha[d] not come forth with any information from the public portions of any of Plaintiff's profiles that would indicate that there [was] relevant information on her profiles that would contradict the claims in th[e] case”).

[19] See also Chip Badcock & Luke Gilman, Use of Social Media in Voir Dre, 60 The Advoc. (Tesax) Fall 2012 at 44, 44-45 (Explaining how social media can provide lawyers with a more complete picture of both the jury venire and the empanelled jury because jurors are much more likely to be candid in an online environment.)

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