The Risk Manager, Winter 2015
Rapidly expanding use of the social media requires lawyers to obtain the competence to advise clients on social media matters as well as to ethically use social media for their own professional purposes. Test your competence by evaluating your knowledge of the following ten key issues:
- Whether attorneys may advise clients about the content of the clients’ social networking websites, including removing or adding information.
- Whether attorneys may connect with a client or former client on a social networking website.
- Whether attorneys may contact a represented person through a social networking website.
- Whether attorneys may contact an unrepresented person through a social networking website, or use a pretextual basis for viewing information on a social networking site that would otherwise be private/unavailable to the public.
- Whether attorneys may use information on a social networking website in client-related matters.
- Whether a client who asks to write a review of an attorney, or who writes a review of an attorney, has caused the attorney to violate any Rule of Professional Conduct.
- Whether attorneys may comment on or respond to reviews or endorsements.
- Whether attorneys may endorse other attorneys on a social networking website.
- Whether attorneys may review a juror’s Internet presence.
- Whether attorneys may connect with judges on social networking websites.
The answers to these issues have come out piecemeal from bar ethics committees and the courts resulting in a mishmash of guidance for the practicing lawyer. In Formal Opinion 2014-300 (9/14) the Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility comes to the rescue. The opinion begins with the above list of ten issues and proceeds
to analyze each in detail. It cites applicable Pennsylvania rules of professional conduct that are quite similar to Kentucky’s, and cites a variety of opinions from other jurisdictions. This opinion is the best and most comprehensive treatment of social media ethics issues to date.
What follows is an overview of Formal Opinion 2014-300 using extracts from the opinion covering key points. Our intent is to assist you in avoiding social media ethics violations and malpractice claims.
BACKGROUND
What Does Competence Mean in the Contect of Social Media Legal Advice?
As a general rule, … to provide competent representation under Rule 1.1, Competence, a lawyer should advise clients about the content of their social media accounts, including privacy issues, as well as their clients’ obligation to preserve information that may be relevant to their legal disputes.
Lawyers must be aware of how these websites operate and the issues they raise … to represent clients whose matters may be impacted by content posted on social media websites. Lawyers should also understand the manner in which postings are either public or private.
To maintain the requisite knowledge and skill, a lawyer should keep abreast of benefits and risks associated with relevant technology…. Thus, … to provide competent representation in accordance with Rule 1.1, a lawyer should (1) have a basic knowledge of how social media websites work, and (2) advise clients about the issues that may arise as a result of their use of these websites.
Lawyers Must Be Alert to the High Risk of Misrepresentation on Social Media
Social networking easily lends itself to dishonesty and misrepresentation because of how simple it is to create a false profile or to post information that is either inaccurate
or exaggerated.
Editor’s Note: Lawyers must be sure that neither they nor their clients engage in conduct involving dishonesty, fraud, deceit or misrepresentation on the social media that could result in a violation of Rule 8.4 (c), Misconduct, and disciplinary action against the lawyer.
Formal Opinion 2014-300
Answers to the Ten Social Media Issues
- Attorneys May, Subject to Certain Limitations, Advise Clients About the Content of Their Social Networking Websites
- Tracking a client’s activity on social media may be appropriate for an attorney to remain informed about developments bearing on the client’s legal dispute. An attorney can reasonably expect that opposing counsel will monitor a client’s social media account.
- In 2014 Formal Ethics Opinion 5, the North Carolina State Bar concluded that a lawyer may advise a client to remove information on social media if not spoliation or otherwise illegal. This Committee agrees with and adopts these recommendations, which are consistent with Rule 3.4(a)’s prohibition against “unlawfully alter[ing], destroy[ing] or conceal[ing] a document or other material having potential evidentiary value.” Thus, a lawyer may not instruct a client to alter, destroy, or conceal any relevant information, regardless of whether that information is in paper or digital form. A lawyer may, however, instruct a client to delete information that may be damaging from the client’s page, provided the conduct does not constitute spoliation or is otherwise illegal, but must take appropriate action to preserve the information in the event it is discoverable or becomes relevant to the client’s matter.
- Similarly, an attorney may not advise a client to post false or misleading information on a social networking website; nor may an attorney offer evidence from a social networking website that the attorney knows is false. Rule 4.1(a) prohibits an attorney from making “a false statement of material fact or law.” If an attorney knows that information on a social networking site is false, the attorney may not present that as truthful information. It has become common practice for lawyers to advise clients to refrain from posting any information relevant to a case on any website, and to refrain from using these websites until the case concludes.
- Attorneys May Ethically Connect with Clients or Former Clients on Social Media
- There is no per se prohibition on an attorney connecting with a client or former client on social media.
- … if an attorney uses social media to communicate with a client relating to representation of the client, the attorney should retain records of those communications containing legal advice.
- … an attorney must not reveal confidential client information on social media. …. [S]ocial media may not be the best platform to connect with clients, particularly in light of the difficulties that often occur when individuals attempt to adjust their privacy settings.
- Attorneys May Not Ethically Contact a Represented Person Through a Social Networking Website
- Attorneys may also use social media to contact relevant persons in a conflict, but within limitations. As a general rule, if contacting a party using other forms of communication would be prohibited, it would also be prohibited while using social networking websites.
- … unless a lawyer has the consent of opposing counsel or is authorized by law to do so, in representing a client, a lawyer shall not conduct ex parte communications about the matter of the representation with present managerial employees of an opposing party, and with any other employee whose acts or omissions may be imputed to the corporation for purposes of civil or criminal liability.
- Regardless of the method of communication, Rule 4.2 clearly states that an attorney may not communicate with a represented party without the permission of that party’s lawyer. Social networking websites increase the number of ways to connect with another person but the essence of that connection is still a communication. Contacting a represented party on social media, even without any pretext, is limited by the Rules.
- While it would be forbidden for a lawyer to “friend” a represented party, it would be permissible for the lawyer to access the public portions of the represented person’s social networking site, just as it would be permissible to review any other public statements the person makes.
- Attorneys May Generally Contact an Unrepresented Person Through a Social Networking Website But May Not Use a Pretextual Basis for Viewing Otherwise Private Information
- The Kentucky Bar Association Ethics Committee concluded that a lawyer may access the social networking site of a third person to benefit a client within the limits of the Rules. The Committee noted that even though social networking sites are a new medium of communication, “[t]he underlying principles of fairness and honesty are the same, regardless of context.” The Committee found that the Rules would not permit a lawyer to communicate through social media with a represented party. But, the Rules do not prohibit social media communication with an unrepresented party provided the lawyer is not deceitful or dishonest in the communication. (KBA E-434 (2012))
- … a lawyer may not use deception to gain access to an unrepresented person’s social networking site. A lawyer may ethically request access to the site, however, by using the lawyer’s real name and by stating the lawyer’s purpose for the request.
- Attorneys May Use Information Discovered on a Social Networking Website in a Dispute
- If a lawyer obtains information from a social networking website, that information may be used in a legal dispute provided the information was obtained ethically and consistent with other portions of this Opinion.
- … a competent lawyer has the duty to understand how social media works and how it may be used in a dispute. Because social networking websites allow users to instantaneously post information about anything the user desires in many different formats, a client’s postings on social media may potentially be used against the client’s interests. Moreover, because of the ease with which individuals can post information on social media websites, there may be an abundance of information about the user that may be discoverable if the user is ever
involved in a legal dispute.
- Attorneys May Generally Comment or Respond to Reviews or Endorsements, and May Solicit Such Endorsements Provided the Reviews Are Monitored for Accuracy
- Although an attorney is not responsible for the content that other persons, who are not agents of the attorney, post on the attorney’s social networking websites, an attorney (1) should monitor his or her social networking websites, (2) has a duty to verify the accuracy of any information posted, and (3) has a duty to remove or correct any inaccurate endorsements.
Editor’s Note: This issue could implicate the professional responsibility rules on advertising. When in doubt contact the KBA Advertising Commission.
- Although an attorney is not responsible for the content that other persons, who are not agents of the attorney, post on the attorney’s social networking websites, an attorney (1) should monitor his or her social networking websites, (2) has a duty to verify the accuracy of any information posted, and (3) has a duty to remove or correct any inaccurate endorsements.
- Attorneys May Comment or Respond to Online Reviews or Endorsements But May Not Reveal Confidential Client Information
- … a lawyer’s comments on social media must maintain attorney/client confidentiality, regardless of the context, absent the client’s informed consent.
- … lawyers may not reveal client confidential information in response to a negative online review. Confidential client information is defined as “information relating to representation,” which is generally very broad.
- Attorneys May Generally Endorse Other Attorneys on Social Networking Websites
- Some social networking sites allow members to endorse other members’ skills. An attorney may endorse another attorney on a social networking website provided the endorsement is accurate and not misleading. …. [W]hen a lawyer endorses another lawyer on social media, the endorsing lawyer must only make endorsements about skills that he knows to be true.
- Attorneys May Review a Juror’s Internet Presence
- The use of social networking websites can also come into play when dealing with judges and juries. A lawyer may review a juror’s social media presence but may not attempt to access the private portions of a juror’s page.
Editor’s Note: In Sluss v. Commonwealth (2012 WL 4243650 (Ky. 2012)) the Kentucky Supreme Court provided guidance for Kentucky lawyers using social media to investigate jurors. - It is proper and ethical under [Rule of Professional Conduct] 3.5 for a lawyer to undertake a pretrial search of a prospective juror's social networking site, provided that there is no contact or communication with the prospective juror and the lawyer does not seek to "friend" jurors, subscribe to their Twitter accounts, send jurors tweets or otherwise contact them. During the evidentiary or deliberation phases of a trial, a lawyer may visit the publicly available Twitter, Facebook or other social networking site of a juror but must not "friend" the juror, email, send tweets to the juror or otherwise communicate in any way with the juror or act in any way by which the juror becomes aware of the monitoring. Moreover, the lawyer may
not make any representations or engage in deceit, directly or indirectly, in reviewing juror social networking sites. - SCR 3.130(3.5)(c) also clearly governs the circumstances when an attorney may communicate with a juror after the jury has been discharged. The same principles that apply to communications made before and during trial apply to posttrial communications as well.
- The use of social networking websites can also come into play when dealing with judges and juries. A lawyer may review a juror’s social media presence but may not attempt to access the private portions of a juror’s page.
- Attorneys May Ethically Connect with Judges on Social Networking Websites Provided the Purpose is not to Influence the Judge
- … attorneys may connect with judges on social media websites provided the purpose is not to influence the judge, and reasonable efforts are taken to assure that there is no ex parte or other prohibited communication.
- … although the Rules do not prohibit such conduct, the Committee cautions attorneys that connecting with judges may create an appearance of bias or partiality.
Formal Opinion 2014-300 is highly recommended professional reading for all Kentucky lawyers. We suggest you download a copy at www.danieljsiegel.com/Formal_2014-300.pdf (last viewed on 1/13/15) or with a Google search and place it in your Risk Management file. Always remember when in doubt on an ethics questions, the KBA Ethics Hotline is just a phone call away.