Most lawyers are already using information found on social media sites as evidence in the courtroom. The New York Bar Association Committee on Professional Ethics recently issued an opinion confirming that gathering that information is permitted, if you’re viewing public pages (Opinion 843, 9/10/10). See the New York Opinion Here.
In the New York opinion the question was whether the lawyer could access pages of an adverse party if they’re only accessing the public portion of the page- no friending involved. The NY Bar said that’s okay.
“Obtaining information about a party available in the Facebook or MySpace profile is similar to obtaining information that is available in publicly accessible online or print media, or through a subscription research service such as Nexis or Factiva, and that is plainly permitted. Accordingly, we conclude that the lawyer may ethically view and access the Facebook and MySpace profiles of a party other than the lawyer’s client in litigation as long as the party’s profile is available to all members in the network and the lawyer neither “friends” the other party nor directs someone else to do so.
That’s a little different from the opinion issued by the Philadelphia Bar (Opinion 2009-02). There, a lawyer asked whether she could cause a third party to access the Facebook and MySpace pages maintained by a witness to obtain information that might be useful for impeaching the witness at trial. The third party would friend the witness purportedly for social reasons, though the real reason would be to collect the information for trial.
The Philadelphia Committee determined that the proposed “friending” is deception in violation of Rules 8.4 and 4.1, and also a supervisory violation under Rule 5.3 because the third party would omit a material fact (i.e., that the third party would be seeking access to the witness’s social networking pages solely to obtain information for the lawyer to use in the pending lawsuit). See the Philadelphia Opinion Here
I think it’s important to consider that term “deception” from the Philadelphia opinion. I often tell lawyers that the best approach when using social media is to “Be Smart.” The concept of avoiding deception puts a little meat on those bones.
I know I’m an ethics geek. If you’re one too and you sometimes need to research the ethics rules regarding advertising, solicitation and marketing in various states throughout the country, there’s a nice collection of links at the ABA website here.
The battle lines are being drawn over the question of whether your postings on FaceBook and other social media can be used against you in court. Lower courts in CA & NY both recently issued conflicting rulings. See the attached blog post from Forbes. Here we go…it’s gonna be a heck of a ride! http://bit.ly/cUgiqm
I don’t think the new Facebook “Places” feature will last. I get it– it’s FB’s attempt at recreating Four Square. Interestingly, it’s yet another way that FB is keeping you on their site– with each new feature they give you less reason to leave the platform in order to enjoy a full social media experience. But Places is going to drive the rank and file FB user nuts.
Twitter users expect some chaos. There are multiple tweets streaming at every moment and less meaningful postings seem to be an accepted part of the Twitter-verse. Not so in Facebook. I think that FB users will be less tolerant of the somewhat annoying check-ins.
People are going to get angry and hide the feature pretty quickly- heck, I’m on the verge of doing that myself. I wonder how that’s going to be received by the all-powerful gods of Facebook because I’m sure they can tell when things are being hidden. I wouldn’t be surprised if that negatively impacts their ability to use the feature to raise revenue. I’m not sure how- it’s just where my gut is leading me.
It’s coming– in a very short time there’s going to be a change in the competence standard. It’s not necessarily going to be an official amendment to the rules. Before long, however, courts and disciplinary boards throughout the country are going to require that attorneys have a basic understanding of social media in order to demonstrate the minimum level of attorney competence. Sound crazy? Think of it this way– would you consider an attorney “competent” if they couldn’t navigate the internet or use e-mail? Of course not. Well it’s going to be the same thing with social media. So if you’re not involved….better start learning.
By the way, these short blog posts are all you’ll get out of me from now on. After all– who has time to read anymore?
What I usually say when asked how an attorney can stay out of ethical trouble when engaging in social networking is….”Be Smart.” Although that isn’t very tangible advice, the Philadelphia Bar Association Professional Guidance Committee issued an opinion in 2009 that helps give my advice a little more bite. You can see the opinion here http://bit.ly/agdDpS
Basically, the Philly Bar was asked to opine on the issue of whether an attorney could ask a third person to “friend” someone on Facebook in advance of litigation. Specifically, that person would connect with someone and claim that it’s motivated by friendship while the true, admitted motive for connecting is to gather information to be used against that person in a lawsuit.
The Committee said that the connection would be a violation of Rule 8.4(c) because it was deceptive. They stated that the connection would pass muster if the true reason for the desire to connect was revealed, though the Committee acknowledged the practical reality that no one would accept the connection if they understood the true motivation.
What’s key here is that the decision turned on the concept of “deception.” These particular actions in the social networking world would cause an ethical problem because they were done in a deceptive manner. Thus, the Philly Bar opinion gives lawyers some tangible direction about how an attorney can “Be Smart” when engaging in social networking– don’t be deceptive.
We need to take a broader view of what it means to educate existing attorneys. It’s time that we reform the ethics rules to include language that gives more direction to attorneys on what type of activity will make them better lawyers.
In that regard it’s critical that we add language to the commentary that encourages lawyers to stay engaged with new technology like social media. Platforms that started out as purely “social networking” are quickly becoming a critical part of the overall practice of law. The simple fact is that they’re not going anywhere– they’re just going to increase in prominence.
If something is critical to the practice of law, then the ethics rules should encourage engagement with that subject matter. Technology is a perfect example– you simply can not remain a competent attorney if you let the technological world pass you by. Heck, no one would be considered “competent” if they couldn’t operate a mouse or send an e-mail.
The ethics rules should encourage attorneys to engage in activity that we want to promote. The code is always going to be list of what we can’t do, but a more complete code will also act as a guide for preferred behavior. Let’s get a reference to technology in there!
Listen, I tried. Honestly, I really did. I tried to use LinkedIn, but after about a year of participating, I’ve come to a decision. Almost everything about it is stupid and a waste of my time.
The most intriguing part of social networking– what’s differentiated it mostly from other forms of networking, is selflessness. People are involved in the honest exchange of information with the goal of helping others. The people who thrive are the most authentic and the ones that provide value to others. LinkedIn is the antithesis of that.
90% of everything on LinkedIn is self serving. Don’t get me wrong, I know we’re all out there trying to get exposure and make a buck. But what drives me crazy about LinkedIn is that all of the postings are created so that they appear to be bona fide attempts at providing valuable information, but anyone with half-a-brain can see that they’re not. Heck, the only people asking questions are coaches and consultants! The questions are thinly disguised as helpful, but they’re really just blatant attempts at getting attention. It’s outright insulting.
Even the discussions in the groups are a waste. I’ve seen two…TWO…questions that were honest requests for information, one of which was an unabashed, direct request for legal advice (and I hope no one provided an answer or you may be in ethical hot water). Are there a few exceptions? Perhaps a couple of genuinely helpful groups or some serious requests for important information? Of course. But those exceptions are just that– exceptions and they’re very much in the minority.
LinkedIn is valuable for one thing– to get people in your network to introduce you to people that you may not know (and to do the same for others). For that reason alone I’ll stay engaged. The rest of the platform is garbage.
Many of us have spoken with someone who’s uttered, “I just don’t see how Twitter can be helpful for business.” They usually go on to say something obnoxious like, “It all seems so frivolous– I mean, who cares about what you ate for dinner?!” I’ve spent a lot of time trying to explain the business benefits to people like that, with mixed results. Well, you no longer have to be frustrated, because now you could simply tell those people to read “Twitterville” by Shel Israel.
Mr. Israel shows how Twitter can be used effectively for business purposes. He recounts the origin of the platform and also talks about some effective, current uses in the business world. But all is not as rosy as it sounds.
The first half of Twitterville is a great business book. The second half is a series of case studies and it’s just not that interesting. My recommendation: Definitely read Twitterville, but you can put it down after around page 190.
If I told you that it was easy to get clients through social networking you’d be excited. But what if I told you that it was so easy, you could form lawyer-client relationships without even realizing it? Not so appealing now, huh? The reality is that it’s dangerously easy to establish L/C relationships through our interaction in social networking and the prudent attorney needs to be aware of this pitfall.
Consider the “law school” definition of when a L/C relationship is created: If a person seeks advice, and you give advice, in circumstances where a reasonable person would rely upon that advice, a L/C relationship could be created. There’s that reasonable person again– you seem him all over the ethics rules….the reasonable man gets around more than Tiger Woods! OH!Bad jokes aside, think about that definition and consider these two situations that may (or may not have) happened to me– of course, I’ll never admit whether they actually occurred for fear of being smacked upside the head with the ethics stick…In each of these cases we have a person who sought advice, I gave advice and there was a situation where it was reasonable for them to rely on that advice. In both instances you could say, “Congratulations Mr. Teicher, you’ve got a brand new baby client!”
1- I provided a long, detailed answer to a question on LinkedIn in a not-so-unusual attempt at self-promotion. After I posted the answer, the questioner sent me a follow up note to discuss things and I responded privately…
2- An high school friend asked me a “quick legal question” on Facebook. They didn’t quite understand my answer so I had a back-and-forth with them until they got it….
It’s up to you to watch what you say and control how you say it. Avoid creating L/C relationships in SN by responding to online advice-seekers the same way you would if they were standing right in front of you–try to be moderately helpful by talking about their issue vaguely and then artfully avoid giving any actual “advice.” Provide generic-style information that will intrigue the person and encourage them to engage you formally. Just to be safe, it’s probably a good idea to throw in a disclaimer-style statement that tells them that they shouldn’t rely on what you’re saying.
Don’t smirk like that– you know exactly what I mean– you’ve been dealing with this in the face-to-face world for your entire career. That’s the trick– talk to a SN advice seeker the same way you’d talk to them if you met them in person.