To “Friend” or “Unfriend?” 3 Simple Ways for Attorneys to Ethically use Facebook
When Facebook launched in 2004 it was aimed at college students. The social networking site is now used by 71% of adults in the U.S., according to recent data compiled by the Pew Research Center. Because Facebook is still in its infancy, yet has become so prevalent in society, attorneys are faced with uncharted ethical territory. Below are three quick tips on how attorneys can utilize Facebook without violating their duties of professional responsibility.
- Only Friend Your Friends
Privacy settings in Facebook are designed to let users specify the amount of material they want shared. The default setting for privacy in a Facebook account is “public,” which means that, unless changed, anyone and everyone can see a user’s profile and their posts. User profiles on Facebook can divulge a person’s work experience and education, as well as their relationship status, family members, date of birth, and contact information. That material, as well as pictures, status updates, posts, “likes,” and “checking-in,” all have the potential to enhance an attorney’s fact-finding ability, the relevance of which can be particularly strong when negotiating a divorce settlement agreement, disproving the severity of a plaintiff’s injury or challenging the credibility of a witness.
Attorneys can access such public information without raising any ethical flags. It is when an individual’s privacy settings are no longer set to “public” that a lawyer enters an ethical twilight zone.
Lawyers might be tempted to send a friend request to an opposing party, judge, or juror in order to obtain useful intel, but doing so constitutes prohibited ex parte communications as provided in the Model Rules of Professional Conduct (sending a friend request [or “friending”] is considered a “communication” within the Model Rules).[1] Accordingly, Model Rule 3.5 states, “a lawyer shall not communicate with [a judge, juror, prospective juror or other official] during the proceeding unless authorized to do so…”[2] In addition, Model Rule 4.2 prohibits an attorney from communicating with a person the lawyer knows to be represented by another lawyer in the same matter or controversy.[3]
The New York City Bar Association Committee on Professional Ethics has gone so far as to issue an ethics opinion that concludes a “communication” includes any instance in which there is an effect on the recipient, such as when a juror learns that the lawyer tried viewing the juror’s Facebook page, or when a juror later sends a “friend” request to an attorney.[4]
Thus, if an attorney believes a private Facebook page provides relevant material, then they should utilize traditional discovery mechanisms to obtain such information.[5] Should there be cause for concern regarding the continuity of the Facebook page, attorneys can send opposing counsel a preservation letter.
- Don’t Ask Others to Do What You Cannot
Attorneys seeking information on a private Facebook page may also be tempted to circumvent the Rules of Professional Conduct by directing someone else to send a friend request for them, such as a paralegal or secretary, or, alternatively, by sending a friend request from a misleading or fictitious Facebook account they create. However, by engaging in such deceptive conduct, such as “fake friending,” an attorney runs the risk of violating Model Rules 4.1 and 8.4.
Model Rule 4.1 prohibits false or misleading statements to third parties in the course of representing a client,[6] and Model Rule 8.4 provides that it is “professional misconduct for a lawyer to…engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”[7] These model rules used in the context of Facebook apply to “fake friending” and may lead to sanctions.[8] For example, in March 2009, the Philadelphia Bar Association Ethics Committee concluded that an attorney, or someone under the attorney’s supervision, seeking information to impeach an adverse witness, could not friend request the witness without revealing the purpose of the communication and disclosing to the witness the attorney’s role.[9] Additionally, in 2011, the San Diego Bar Ethics Committee concluded that a violation of the Model Rules would exist if an attorney friend requested any unrepresented party without disclosing why the request was being made.[10]
In light of these opinions, when contacting a potential witness via Facebook, an attorney should disclose the purpose of the communication and make sure to provide accurate personal information.
- Keep Confidential Information Confidential
Model Rule 1.6 provides that “a lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.”[11] While seemingly obvious that an attorney shouldn’t post client confidences, such material could be revealed via marketing material, posts by an attorney on their private page, or even through an unwitting staff member.
Consequently, what an attorney may believe is self-contained and not deemed a disclosure because it is on their private page is, in fact, confidential. Furthermore, attorneys can potentially be liable for the Facebook posts of the paralegals, secretaries and other staff members under the attorney’s supervision.
Therefore, attorneys need to be cognizant that their Facebook posts do not divulge confidential client information, but also need to be aware of what their employees are posting. As such, it is essential that law firms implement social media policies to limit their exposure.
Conclusion
As Facebook becomes more prevalent in society, attorneys need to continue to be mindful of ethics rules and the Model Rules of Professional Conduct even in the context of social media. By following these three simple rules, attorneys can utilize Facebook without fear of violating ethical rules. Nevertheless, it is still important that all attorneys consult their state bar associations’ ethics opinions first before posting any material of which they feel uncertain.
[1] See San Diego Cnty. Bar Ass’n Ethics Comm., Legal Ethics Op. 2011-2 (2011) (stating that an attorney’s friend request to a represented party constitute an ex parte communication, if motivated by the quest for information about the subject of representation)
[2] Model Rules of Prof'l Conduct R. 3.5 (2013).
[3] Model Rules of Prof'l Conduct R. 4.1 (2013).
[4] Ass’n of the Bar of the City of N.Y. Comm. on Prof’l & Judicial Ethics, Formal Op. 2012-2 (2012).
[5] Largent v. Reed, 2011 WL 5632688 (Pa. Ct. C.P. Nov. 8, 2011).
[6] Model Rules of Prof'l Conduct R. 4.1 (2013).
[7] Model Rules of Prof'l Conduct R. 8.4 (2013).
[8] See Office of Attorney Ethics v. Adamo, Docket Nos. XIV-2010-0484E & XIV-2010-0485E (N.J. Ethics Comm. Nov. 16, 2011) (two attorneys face ethics charges related to their defense in a personal injury case in which they directed a female paralegal to friend request the male plaintiff to gain access to information on his Facebook page that was not available to the public); Cope v. Prince, No. CV 12-781824 (Ohio Ct. Com. Pl. May 2, 2012) (the complaint alleges that an insurance defense firm hired an investigator to gain access to the privacy-restricted Facebook page belonging to a twelve-year-old plaintiff in a dog bite lawsuit by posing as one of the girl’s Facebook friends).
[9] Philadelphia Bar Ass'n Prof'l Guidance Comm., Op. 2009-02 (2009).
[10] San Diego Cnty. Bar Ass’n Ethics Comm., Legal Ethics Op. 2011-2 (2011).
[11] Model Rules of Prof'l Conduct R. 1.6 (2013).
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