Social media use can lead to ethical dilemmas

Social media use can lead to ethical dilemmas

Attorneys must be cautious when posting, ‘friending’ online

By DOUG SHERWIN, The Daily Transcript

Tuesday, April 30, 2013

Members of the legal community, much like the rest of society, have embraced the use of social media, anxious to take advantage of its immediacy, connectivity and treasure trove of information. But, unlike everyone else, attorneys and law firms need to be extra cautious of the ethical pitfalls that the world of Facebook, Twitter, LinkedIn and Instagram present.

Two years ago, in response to such concerns, the San Diego County Bar Association’s legal ethics committee concluded that attorneys are prohibited from contacting a represented party via social media and that prohibition sometimes extends to an unrepresented party.

“You always have to be thinking about the ramifications whenever you start [using social media],” said Leah Strickland, an associate with Solomon Ward Seidenwurm & Smith and a member of the bar’s legal ethics committee. “If you’re putting up a Facebook page or blogging, you always need to be aware of the potential ramifications to attorney-client privilege.”

When researching the background of a case, attorneys are to look at any information in the public domain, and lawyers have increasingly used search engines, like Google, to accomplish the task. Even certain parts of Facebook, those not blocked by privacy settings, are viewable by the public and fair game.

But legal professions can cross a line if they try to gain access to private information by “friending” an opposing party on Facebook. “An attorney’s ex parte communication to a represented party intended to elicit information about the subject matter of the representation is impermissible no matter what words are used in the communication and no matter how that communication is transmitted to the represented party,” the ethics committee wrote in its opinion.

The opinion also states that an “attorney’s duty not to deceive prohibits him from making a friend request even of unrepresented witnesses without disclosing the purpose of the request.”

Ed McIntyre, a partner with Solomon Ward and chair of the SDCBA’s legal ethics committee, said the rules of professional conduct apply to social media just as they do to more traditional methods of communication. If an attorney wouldn’t think of calling the opposing party on the phone, then they likely shouldn’t do it over the Internet either. “Social media is clearly here to stay,” McIntyre said. “They make the practice a whole lot more efficient and better for clients. The question is, to what extent do we, as lawyers, have to use general forethought before launching into the use of social media to make sure we understand the technology.”He said a lawyer’s duty of competence now includes a duty to comprehend the limits of the technology along with the risks and benefits of using it.

That responsibility extends to supervising others on the proper use of social media, making sure the firm’s legal professionals understand that confidential¬† information should not be shared online.

Latham & Watkins’ partner Jennifer Barry, who is a member of the firm’s Internet and digital media industry group, said she tells her clients to think before posting something online. She said the same advice applies to lawyers.¬† “It’s supposed to be quick, energetic and reactive,” Barry said. “That’s the allure from the business perspective — to have that level of communication with your customers — but at the same time you need to be careful of what you’re doing.

“Have more than one person take a look at it because once you put it in cyberspace, it’s there forever.” Attorneys also have to be careful not to violate the rules that regulate advertising in the legal profession. They should make sure a blog report or Twitter post can’t be seen as soliciting clients and be careful not to present themselves as an “expert” unless certified as such by the California Bar Association.

Additionally, attorneys should not post legal advice — a disclaimer is helpful — and avoid creating the indication of an attorney-client relationship online, according to Mitch Danzig, a labor and employment attorney with Mintz Levin Cohn Ferris Glovsky and Popeo.

With emails, a lawyer can include certain disclaimers. It’s more difficult on Twitter, where each post can only be 140 characters long.

“The conservative approach — the smart approach — is just follow the rules whether in social media or regular communication,” he said. “The other thing that’s important for firms and all companies to understand is that everything on the Internet is backed up in some form and can typically be traced back to its author. Think before you post and, when in doubt, don’t post.”

The issue of attorneys “friending” judges also is a concern, and is discouraged because of the appearance of impropriety and favoritism it can lead to, especially for attorneys who appear regularly before the judge they’ve “friended.”

“There are so many ways an attorney can go wrong with social media,” said Latham & Watkins’ Barry. “There are issues with attorneys and judges; issues with attorneys and potentially represented parties; attorneys with other attorneys and with their own clients. Each has a special set of risks.”

Blogging can present a unique challenge, according to Barry. Since it’s so easy to post one’s thoughts on a subject, attorneys have to be careful to submit an edited version and not a rambling, stream-of-consciousness entry. “For some solo practitioners, this is their life blood,” Barry said about blogging. “They want to talk about what they’re doing. Sometimes good judgment goes out the window because you’re so excited about something.”

Chris Marchese, a principal in the San Diego office of Fish & Richardson, writes a blog about patent damages with fellow principal Justin Barnes. The blog gets 600 views a month and its accompanying Twitter feed has 800 followers. Marchese and Barnes use it as more of an informational resource. “If it’s a case we’re involved in, I’ll write it up and post it,” Marchese said. “If it’s more sensitive material, I’ll vet it with other people. Generally, we just factually report the case. It’s more like a case brief. We try to quote liberally from the court’s opinion.”

Marchese said they stick to the facts and don’t offer any legal advice. They’ll make connections between a current case and ones that preceded it. The firm has a policy about blogging, which Marchese and Barnes have no problem following.

Social media use among jurors also has increased, necessitating courts to update their jury instructions. More and more judges are including a reminder to not use social media during trial in its usual admonition to jurors. It’s advice that attorneys can heed as well.

“I grew up with email,” Solomon Ward’s Strickland said. “Today it’s Facebook and Twitter [that are common]. I think it lends a certain comfort level to certain practitioners they need to be wary of, because when you’re too comfortable, it can be easy to inadvertently cross ethical lines.”

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