The Risks and Benefits of Social Networking for Lawyers

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1 The Risks and Benefits of Social Networking for Lawyers Presented by Julie A. Totten Orrick, Herrington & Sutcliffe, LLP Co-written by Allison Riechert Technology in the Practice & Workplace Midyear Meeting ABA Section of Labor and Employment Law 2010 Midwinter Meeting New York, NY 400 Capitol Mall, Suite 3000 Sacramento, CA Telephone Facsimile

2 Copyright 2010, Orrick, Herrington & Sutcliffe LLP: All rights reserved. These materials are distributed for informational purposes only and are not meant nor should be construed as legal advice.

3 I. Introduction The Risks and Benefits of Social Networking for Lawyers Social networking is a valuable, but dangerous tool for attorneys in an age where you can find almost anything and everything on the web. Social networking sites like Facebook, Twitter and LinkedIn can help lawyers build and maintain relationships, market themselves, investigate people and research the law. However, for all of the benefits of social networking, lawyers must be aware of the ethical risks that accompany writing on a friend s wall, tweeting or making a new connection. The ethical rules regarding confidentiality, communicating with third parties, lying, and dealing with the court apply in cyberspace in the same manner as in the real world. II. Social Networking Media Lawyers have a wide range of social networking tools available to them. Three of the most popular social networking sites for lawyers are Facebook, Twitter and LinkedIn. Facebook is perhaps the best known social networking site on the web. Facebook is a free service that allows users to create personal profile pages. Users can then friend other users, provide status updates, send messages, join networks and groups and update their profiles. 1 Facebook provides users with privacy settings that allow them to control the flow of information. For example, a user can create lists of friends and then restrict list members access to certain types of information. Because a user s friends can post messages, links and pictures on the user s profile page, lawyers should regularly monitor their profile page to ensure the postings do not violate professional ethical rules. Twitter is a free social networking service that permits users to publish and read 140 character messages known as tweets. 2 Tweets are posted on the writer s profile page and delivered to his or her followers (subscribers). Lawyers can use twitter to build relationships with friends and clients, publicize their legal blogs, and stay up to date on important legal issues. Twitter has privacy settings that enable users to filter information. For example, a twitter user can create sub-groups, such as friends and work colleagues, that can only see certain tweets. This function is important for lawyers who do not want to mix their personal and professional lives. Unlike Facebook and Twitter, LinkedIn is a business-oriented social networking tool. 3 LinkedIn users create a profile and build contact networks of connections (people they know in business). Users can draw on their connections to meet new contacts and increase their networks. LinkedIn has integrated applications like Blog 1 Wikipedia, Facebook, (as of Jan. 10, 2010, 19:41). 2 Wikipedia, Twitter, (as of Jan. 11, 2010, 4:07). 3 Wikipedia, LinkedIn, (as of Jan. 18, 2010, 19:32).

4 Link, Company Buzz, and Events that are useful tools for attorneys seeking to strengthen their reputation and expand business. If used in a prudent manner, sites like Facebook, Twitter and LinkedIn can help attorneys build and maintain relationships, market themselves, investigate people and research the law. III. Benefits of Social Networking for Lawyers A. Building & Maintaining Relationships To be successful, a lawyer must build and maintain relationships with clients, potential clients and fellow practitioners. Social networking sites are a cost-effective means to stay in touch with a wide-range of people. An attorney can share personal information with his client via his profiles that makes a client feel more connected with his attorney. This is not to say that social networking should replace traditional face to face networking. Rather, social networking supplements traditional networking. B. Marketing Lawyers also can use social networking sites to market themselves for little to no cost (except for their time). Increasingly, lawyers create blogs 4 to develop reputations for expertise in an area of the law. For instance, an employment lawyer can post legal updates and commentary on wage and hour issues and cases to an employment law blog to show off her expertise in the area of wage and hour law. She can then link her blog postings to her Facebook or LinkedIn profile or tweet about her blog with a link to her post. With one short post, the lawyer s blog is available to all of her friends, connections or subscribers. C. Investigation and Research Social networking sites are useful tools for investigative research. For example, if a person s profile page is open to the public, an attorney can use the information on that page to determine relationships and learn background information relevant to his case. Workers compensation claims investigators use social networking sites to help insurers and employers defeat false claims. 5 For instance, an investigator proved a Los Angelesarea warehouse worker s work-related back injury was not as serious as the worker claimed when the investigator learned he participated in a bowling tournament from pictures on his Facebook page. 6 Similarly, attorneys can use social networking sites to investigate claims. Lee Rosen, a divorce lawyer in North Carolina, uses social 4 Blog (a contraction of the term "web log") is a type of website, usually maintained by an individual with regular entries of commentary, descriptions of events, or other material such as graphics or video. Wikipedia, Blog, (as of January 3, 2010 at 15:04). 5 Roberto Ceniceros, Comp Cheats Confess All on Social Networking Sites, Workforce Management Online, September Id.

5 networking sites to find evidence of adultery because most cases where there is evidence of adultery quickly settle. 7 Family law attorneys also employ social media to show a parent took a child out of state or to prove a parent s earning capacity or job prospects. 8 Lawyers can learn a lot about a person using social media, but they must be careful not to cross the boundary between public and private information. In 2008, the Santa Clara Public Defender s Office commissioned a handbook on conducting research on social networking websites in California. 9 The handbook permits public defenders to use publicly-available information, information obtained using your own valid social networking account, and information provided by a third-party member of a social networking website. 10 Lawyers can also observe the activities of a member while she browses the network or use the account of a third-party member without that members presence, but with her permission, to browse the website but not to contact people. 11 Lawyers should never contact ( , message or friend request) the victim or persons disclosed by the opposing party or other persons represented by counsel without full disclosure of your professional affiliation. Further, lawyers should never create a fictitious account. 12 IV. Risks of Social Networking for Lawyers Lawyers are bound by their state s professional code of conduct. An ethical violation could result in a reprimand or disbarment. A. Violating the Professional Code of Conduct 1. Confidentiality A lawyer commits an ethical violation when he reveals information relating to the representation of a client without consent on a social networking site. 13 As discussed above, a benefit of social networking is low-cost, informal marketing. However, lawyers must remember their ethical duties when they are online. The duty of confidentiality may be compromised when an attorney wants to increase his visibility in the community by discussing his recent trials, new business or high-profile clientele. A lawyer cannot blog, tweet, or post any information that can be connected to a client without that client s consent. 7 Sylvia Hsieh, Family Law Attorneys are Missing Evidence on Social Networking Sites, Lawyers USA Online, June 25, Id. 9 David Lee and Shane Witnov, Handbook on Conducting Research on Social-Networking Websites in California, Samuelson Law, Technology & Public Policy Clinic, UC Berkeley School of Law, December 1, Id. 11 Id. 12 Id. 13 ABA Model Rules of Professional Conduct, Rule 1.6.

6 An Illinois assistant public defender experienced first-hand the potentially serious consequences of violating her duty of confidentiality while social networking. Kristine Ann Peshek maintained a public blog entitled: The Bardd (sic) Before the Bar - Irreverant (sic) Adventures in Life, Law, and Indigent Defense. 14 On her blog, Peshek wrote about her clients, referring to them by their first names, a derivative of their first names, or their jail identification numbers. 15 The Illinois Attorney Registration and Disciplinary Commission charged Peshek with publishing client confidences or secrets on the internet. Peshek s inappropriate blogging could result in her disbarment and the loss of her career as an assistant public defender. To protect clients confidential information and avoid ethical violations, attorneys should not blog or post about anything that could be connected to the representation of a client. It is best to err on the side of caution when social networking. 2. Interacting with Third Parties Lawyers must be careful not to engage in improper interactions with third parties on social networking sites. You cannot always control who sees your posts or blogs on the internet. Therefore, you must be extra careful about what you publish or who you contact on the net. The ABA Model Rules govern lawyers interactions with third parties. Model Rule 4.3 provides that in dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. Additionally, a lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client. If a lawyer wants to discuss a legal issue that is connected to a client matter, he should include a disclaimer that he is not disinterested and is not giving legal advice. It is easy to imagine a situation where a Facebook friend posts a legal question on your Facebook wall. If you respond to that question, you could be forming an attorney-client relationship, and along with such a relationship comes a host of legal and professional responsibilities. When interacting with third parties on social networking sites, beware of who you talk to and what you say. 3. Lying and Deceit A well-recognized rule for lawyers is the duty to be truthful in statements to others. ABA Model Rule 4.1 states: In the course of representing a client a lawyer shall not knowingly (a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid 14 Commission No. 09 CH 89, Ill. Attorney Registration and Disciplinary Commission, (Aug. 25, 2009). See 15 Id.

7 assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by [the duty of confidentiality]. Often times, the tone and context of comments are lost in translation while social networking. A reader may take a post literally that you intended to be a joke. Before posting, double check your comments for anything that may be misleading or false. Further, lawyers are susceptible to violating this rule when researching witnesses on social networking sites. In March 2009, the Philadelphia Bar Association disciplined an attorney for getting a third party to friend an unrepresented witness on Facebook and MySpace on the lawyer s behalf. 16 The Bar Association felt the attorney s actions were misleading and deceitful and therefore unethical. 17 Moreover, under Rule 3.3 attorneys must not lie in the courtroom. You may be wondering what lying in a courtroom has to do with social networking. A young lawyer in Texas learned that you cannot say one thing to a judge, and another thing on your Facebook page. Judge Susan Criss of the Texas District Court in Galveston, Texas granted a young lawyer s request to delay a trial because of a death in the family. 18 Judge Criss later checked the lawyer s Facebook page. She discovered that while the lawyer had attended a funeral, she also spent the week partying and motorbiking. When the lawyer requested a second trial delay, Judge Criss denied the request and revealed her Facebook discoveries to a senior partner at the lawyer s firm. You can only imagine what happened to the young lawyer when she got back to the office. As a general practice, lawyers should not lie. This rule applies to social networking in the same way it applies to everyday life. As more and more people are joining Facebook, Twitter and LinkedIn, you have to be extra careful about what you say and do on social networking sites. Before you post, think about how your words or pictures will be interpreted by others. 4. Dealing with the Court The judicial system expects judges to remain impartial and independent to ensure fair trials. When judges and lawyers befriend each other on social networking sites, the expectation of impartiality and independence is compromised. The Florida Supreme Court s Judicial Ethics Advisory Committee recently addressed the issue of whether a judge may add lawyers who may appear before the judge as friends on social networking sites, and permit such lawyers to add the judge as their friend? 19 The Committee concluded that judges may not friend lawyers who may appear before them because it would convey or permit others to convey the impression that they are in a special position to influence the judge The Philadelphia Bar Association Professional Guidance Committee, Opinion , March Id. 18 John Schwartz, A Legal Battle: Online Attitude vs. Rules of the Bar, N.Y. Times, September 13, Fla. JEAC Op (2009). 20 Id.

8 North Carolina s Judicial Standards Commission tackled this issue as well. During a child custody trial, the judge friended the husband s lawyer on Facebook. 21 They proceeded to comment on each other s Facebook pages. 22 In one post, the lawyer wrote I have a wise Judge. 23 At the end of the trial, the wife s lawyer discovered the judge and opposing counsel s Facebook friendship and moved for the judge s disqualification and for a new trial. 24 The judge removed himself from the case and the wife received a new trial. 25 Furthermore, the Judicial Standards Commission reprimanded the judge for violating the prohibition against a judge engaging in ex parte communications. 26 While some lawyers are too friendly with judges, others are too harsh in their criticism of the bench. The Florida Bar reprimanded and fined an attorney for a blog post in which he called a judge an Evil, Unfair Witch. 27 The Florida Supreme Court reviewed the case and demanded briefs on First Amendment issues, but in the end the Court affirmed the disciplinary agreement and the attorney paid $1, Michael Downey, a legal ethics teacher at Washington University law school, believes that attorneys, as officers of the court, lose the full ability to criticize the court. 29 V. Basic Social Networking Rules All Lawyers Should Follow This article addresses only some of the ethical risks attorneys face while social networking. Attorneys should also be mindful of the ethical rules and laws surrounding advertising, defamation and spoliation of evidence. As a start, you can socially network more safely and ethically if you follow these basic rules. First, you should never post, blog or tweet any information that can be connected to the representation of a client. Revealing confidences can both injure your client and destroy your reputation and career. Second, be careful when you interact with third parties online. You can never be sure how a person will interpret or use the information you post on the web. Third, do not lie. While this rule seems pretty basic, it includes more subtle forms of lying such as misrepresenting or omitting the truth. 21 North Carolina Judicial Standards Commission, Public Reprimand, Inquiry No , April 1, Id. 23 Id. 24 Id. 25 Id. 26 Id. 27 The Fla. Bar v. Conway, Public Reprimand, No. SC (Fla. Sup. Ct. Oct. 29, 2008); John Schwartz, A Legal Battle: Online Attitude vs. Rules of the Bar, N.Y. Times, September 13, Id. 29 Id.

9 Fourth, on the one hand do not be too friendly with judges and on the other do not criticize the court. Lawyers are officers of the court who must uphold the decorum and impartiality of the judicial system. Finally, google yourself regularly to control your personal information on the internet. You may be surprised by what information pops up on google. VI. Conclusion Social networking has created a new set of ethical dilemmas for attorneys. Following these five rules is just a start. This area of professional responsibility is unsettled and likely to change as courts and ethics commissions address lawyers professional responsibilities while social networking. Take the time to gain a clear understanding of your ethical duties before joining Facebook, Twitter, LinkedIn and other social networking sites.

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