(This article appeared in Journal 15,3, September 2010)
Many lawyers and other legal professionals use social networking websites to advertise their legal practice, connect with like-minded people, post “adorable” family photos, or locate long lost boyfriends—I mean friends. Some of the better-known sites include MySpace, Facebook, LinkedIn, and Twitter. (I am including Twitter in the list because it is well-known. In the interest of full disclosure I need to report that, to the best of my knowledge and recollection, I have never “tweeted,” “twooted,” or “twitted” anything.) Essentially, social networking sites allow users to create personal profiles and then interact with "friends" through “chatting”1 or "blogging."2 While social networking sites can be useful, entertaining, and addictive, legal professionals need to be cognizant of potential ethical pitfalls attendant to revealing, and discovering, information on a social website.
Several opinions have recently been issued addressing the propriety of judges participating in social networking websites. For example, the North Carolina Judicial Standards Commission reprimanded a judge for "friending" a lawyer involved in a hearing before him and using Facebook to discuss the case with the lawyer. The judge also “googled” one of the parties and accessed the party’s website. See N.C. Judicial Standards Comm., Inquiry No. 08-234 (April 1, 2009). The commission found that the ex parte communications and the independent gathering of information indicated a disregard of the principles of judicial conduct and constituted conduct prejudicial to the administration of justice.
To prevent such occurrences, the Judicial Ethics Advisory Committee of the Florida Supreme Court issued an opinion prohibiting judges from adding lawyers who may appear before the judge as “friends” and vice versa. Fla. Judicial Ethics Advisory Comm., Op. 2009-20. The reason for the ban is to prevent the appearance to the public that “friended” lawyers might have a special influence over the judge. Kentucky, New York, and South Carolina have issued opinions allowing judges to participate in social networking websites, but advising judges to be extremely cautious that such participation does not otherwise result in violations of the rules governing judicial conduct. Ethics Committee of the Kentucky Judiciary, Formal Judicial Ethics Op. JE-119 (2010); NY State Advisory Committee on Judicial Ethics, Op. 08-176 (2009); SC Judicial Department Advisory Committee, Op. 17-2009 (2009).
It is not just judges who have to be wary of their online activity. The Philadelphia Bar Association's Professional Guidance Committee issued an opinion concerning a lawyer's proposed investigation of a witness's Facebook and MySpace pages. Phila. Bar Assoc. Prof'l. Guidance Comm., Opinion 2009-2 (March 2009). The lawyer wanted to ask a third party to use the Facebook and MySpace websites to send a "friend request” to the witness. The lawyer believed that the third party would be able to uncover information on the websites that could be used to impeach the witness. The committee concluded that the proposed method of obtaining information was deceptive and in violation of the Pennsylvania Rules of Professional Conduct.
Lawyers have also been cautioned as to their participation in online lawyer rating sites. The South Carolina Bar Association responded to an inquiry about a lawyer's professional responsibilities when a company launched a website that listed lawyers without the lawyers’ permission or involvement. SC Ethics Advisory Comm., Opinion 09-10 (2009). The company used information obtained from state courts and bar associations to create website entries for lawyers. For each lawyer listed, the website included a company "rating." The website also included a feature for peer endorsements and client ratings. The South Carolina Bar Association held that if the lawyer participated in the listing by "claiming" or "updating" his listing, all comments made about him on the website were subject to the advertising requirements of the South Carolina Rules of Professional Conduct and the lawyer would have an ongoing duty to monitor the listing to keep all comments in conformity with the rules.
And in the category of "what were they thinking?" we have the following two scenarios involving lawyers online. In Texas, a lawyer asked for a continuance from a judge due to the death of her father, but was later sanctioned by the judge when it was discovered that the lawyer’s Facebook profile page detailed a week of drinking and partying. Also, the Florida State Bar fined a trial lawyer $1,250 for criticizing a judge on a blog. The lawyer questioned the judge’s mental stability and stated that she was unfit for her position. The lawyer also stated that the judge had an "ugly, condescending attitude" and was an "evil, unfair witch." Ouch! The Florida Supreme Court upheld the sanction. 996 So. 2d 213 (2008).
Law students are not immune from scrutiny either. The Florida Board of Bar Examiners adopted a policy of reviewing applicants' social networking sites as a part of its character and fitness investigations. Facebook review is limited to certain applicants such as those who need rehabilitation or who have admitted to past indiscretions.
Remember that if you are using a social networking or online rating website to market your law firm, you have to follow all of the advertising rules. See RPC 239. For example, in response to social networking profiles that ask users to list their "specialties," you cannot state that you are a "specialist" in a particular field of law, except as allowed by Rule 7.4(b). In addition, you need to be careful not to violate Rule 7.3, the anti-solicitation rule, which regulates real-time communications with prospective clients. Interestingly, the Philadelphia Bar Association just issued an opinion that allows certain real-time electronic communications, including communications through blogs, chat rooms, and other social media. Philadelphia Bar Ass’n Prof’l Guidance Comm., Op. 2010-6 (2010). The opinion states that Rule 7.3 does not bar the use of social media for solicitation where a prospective client to whom the lawyer's communication is directed has the ability to ignore the soliciting lawyer and respond or not as he or she sees fit.
In conclusion, don’t turn off your brain when you sign onto your favorite social networking website. Keep the ethics rules in mind and remember that what happens in Vegas doesn’t stay in Vegas if you post it on your website.
Suzanne Lever is assistant ethics counsel for the North Carolina State Bar.