Mar 02, 2020
Using Social Media Without Losing Your Bar License: Ten Mistakes to Avoid
Mar 02, 2020
By Matt White
Formal rules of professional conduct have not caught up with the social media revolution, or the evolving ways it affects our practice. That puts you, the reader, in a delicate situation. How can you best navigate this new world without running afoul of ethical rules, or without ending up on the wrong side of a lawsuit? What are you doing wrong today that may cause you trouble tomorrow?
Don’t be lulled into a false sense of security by your own demographic circle, which may involve a limited use of social media. Facebook alone has 220 million users in the United States, and 2.5 billion users around the world. If you aren’t on Facebook, you are in the minority.
Your writer assumes you have some familiarity with “social media” and its uses. We’re talking about internet sites like Facebook, Twitter, YouTube, Instagram, Snapchat and the like. If you want to learn more, check out social media on Wikipedia.1
Here are ten issues to stay on top of as you maneuver through your day:
1. You must use social media to research adverse clients and witnesses. There’s a ton of information out there about everyone involved in your case. To be a “competent” attorney, as you are required to be,2 you cannot ignore relevant, important, and easily-obtained evidence. Note that you may also have an obligation to advise your own clients that what they post online may be available to adversaries.
Query whether advising a client to take down a harmful post is advising spoliation of evidence? Many authorities say it is.3
2. You must not use social media to research represented parties. Actually, this is an exaggeration. What you should not do is check out their posts, unless you know your presence cannot be detected. LinkedIn, for example, can tell you who looked at your site. This is good for marketing purposes, but may run afoul of California Rule of Professional Conduct (RPC) 4.2. That rule prohibits communications—direct or indirect—with represented parties. It is likely a violation of this rule to leave your virtual business card on an adverse party’s virtual doorstep with a virtual message: “I’ve got my eye on you.”
It seems a universal view that sending a “friend request” to a represented party violates Rule 4.2, even if you have someone else do it on your behalf. So don’t.
What if you are already social-media-connected with someone who, during the course of your practice, becomes an adverse represented party? Do you have to unfriend them?4
3. Your posts may be considered “advertisements.” The rules on advertising and solicitation are complicated, but here are the basics: You have a free speech right to blog about legal issues or, for that matter, almost anything else. But if it is on your firm’s web page, or somewhere similar, it may move from free speech to advertising (“solicitation”), which is much more strictly limited. For example, advertising must not contain any false or misleading information or guarantee a result, and must identify itself as a solicitation. Additional details and a more specific description of “solicitation” are found in RPC 7.1–7.4.
To avoid this type of strict regulation, make sure any blogging is separate from your more blatant marketing communications.5
4. Be careful revealing private client information, even in response to criticism. You might think that, if a client trashes you on Yelp or other online forum, that the client has waived the attorney-client privilege, and that you have a right to defend yourself and your representation by pointing out, say, that the client is evil. If so, you might be wrong, at least according to Ethics Opinion 1032 of the New York Bar Association (2014). The NYBA opined that waiver does not occur unless the client has instituted formal proceedings against the lawyer; disclosure of a client’s private information or communications, even in response to a negative Yelp review, would violate the lawyer’s ethical obligations. Be careful.
5. You cannot delegate ultimate responsibility for social media. You know how it’s no excuse to say that a calendaring or other error is the fault of your staff? Well, the same is true for social media. Just because you pay somebody to write or manage your blog, web site, or other posting, does not relieve you of your obligation to ensure that it complies with ethical rules and state law. RPC 5.3.
6. Be extra careful during jury trial. The consensus seems to be that using social media to research potential jurors is fine, so long as you have set your search to leave no footprints.6 Again, no friend requests.
But resist the urge to blog or post stories about your upcoming or ongoing jury trials. Although jurors are told rather forcefully not to do any internet research on the case, they may anyway. It would obviously be unethical for you to be posting stories about the case when you know it may be read by a juror. RPC 3.6(a).
7. Hesitate to “friend” a judge and if you are friends on social media, do not post about any case before that judge. Hypothetical: You appear before Judge X, your Facebook friend. You win. Adverse attorney moves for new trial because this relationship was not disclosed. Result?
Maybe. Maybe not.
The Florida Supreme Court, by a 4-3 vote, held that a Facebook friendship is not a categorical “close or intimate relationship” that would require disqualification, as reported by the ABA Journal in May 2019. However, this is not a universal rule, at least not yet. See, Singh, Friend Request Denied: Judicial Ethics and Social Media, Journal of Law, Technology & The Internet (Vol. 7, 2016). Many writers opine that judges should not have social media links with lawyers who practice in their courts.
At the very least, if you are linked on social media with a judge before whom you appear, do not post anything about your cases. That would be a clearly improper ex parte communication.
8. Don’t assume that a social media post is admissible. Many litigators find that the internet is a fabulous tool. In the old days, we hired drones to fly overhead and photograph the accident scene from the sky. No more; Google Maps does that for us, and for free.
But is a photograph from Google Maps admissible? Is a Facebook post? Is an email?
Authenticating a map or a social media post is no easy task. I doubt that Facebook is so authoritative that its content is proper for judicial notice.7 Who can testify that a photo or post is taken and maintained in the usual course of business, per Evidence Code section 1271? If a witness denies posting the image or statement, how do you use it for impeachment? The point: You may have dynamite evidence, but give careful thought to laying a necessary foundation. For more on this, check out Jackson, Social Media Evidence: Admissibility Issues, Daily Journal (Dec. 23, 2016).
9. Understand all this! As social media envelopes everything we say and do, it is essential that you learn and follow the rules of this modern age. As made explicit by Comment 8 to RPC 1.1: “To 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….” It may be cool to be old school, but you’re a fool to ignore this rule.8
10. Finally: Everything above is subject to change. These are some of the many concerns that have reared their ugly heads—so far. Our modern world is spinning faster and faster. New media, new technology, and new uses are emerging as we speak. And with them will come new issues, new challenges, and new lurking disasters. Stay current!
1 Which is, perhaps, another form of social media.
2 California Rules of Professional Conduct, Rule 1.1.
3 You will recall from law school that you are allowed to tell a client, in effect, “Now, if you give me the murder weapon, I will be required to turn it over to the police. If it happens to fall into the river and disappear, I have no obligation to tell anyone anything. What would you like to do?”
4 I don’t know either. Go ask your mother. Seems to me that “unfriending” may be an indirect communication, too.
5 State Bar of California Standing Committee on Professional Responsibility and Conduct, Formal Opinion No. 2016-196.
6 Weltge, McKenzie-Harris, The minefield of social media and legal ethics: How to provide competent representation and avoid the pitfalls of modern technology, American Bar Association, Section of Labor and Employment Law (March 2017), at 25-27.
7 See, 2016 presidential election.
8 This line available gratis to any rap artist who wants it.
Matt White is a personal injury litigator with Monty White LLP in its San Rafael office and a mediator with Resolution Remedies. He was the MCBA President in 2004 and is the 5-Year Past President for 2020. You can reach him at 415-226-4040 or email@example.com.