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.