When such ethical questions arise in the legal profession, lawyers usually look to a relevant bar association for an opinion on the issue. Recently, several ethical issues related to social networking sites have been addressed by various New York bar associations, while many more questions remain to be addressed in the future.
An article in the August 3 edition of the New York Law Journal discusses three recent opinions issued by three different New York bar associations, as well as several key issues yet to be resolved. I realize that this topic might be of limited interest to non-lawyers, but my hope is that it will shed some light on a few of the possible legal consequences/implications of using social networking sites, as well as give some insights into the limitations placed on lawyers when attempting to use such sites for the benefit of their clients.
The first ethics opinion was issued by the New York State Bar Association (NYSBA) and addressed whether a lawyer may access Facebook or MySpace pages of a party to pending litigation (other than the attorney's client) if the lawyer does not "friend" the party, but instead accesses only the pages that are accessible to all members of the social networking site. The NYSBA decided that such actions were permissible, but cautioned that it is ethical only if the lawyer doesn't "friend" the other party or direct someone else to do so. This opinion certainly sends a warning to people about the risks of allowing too much information to be seen by anyone visiting a given social networking site. Better to use those privacy settings and limit access to people you know.
The second opinion was issued by the New York City Bar Association (NYCBA) and addressed whether a lawyer may contact an unrepresented person (such as a potential witness who has not retained an attorney) through a social networking site and request access to his or her page to obtain information for use in litigation. (As a side note, the question was limited to people not represented by an attorney because the Rules of Professional Conduct prohibit attorneys from contacting people they know to be represented by a lawyer unless he or she has permission from that person's lawyer to do so.) With respect to the question posed, the NYCBA decided that doing so is permissible as long as the attorney (or someone working on the attorney's behalf) uses his or her real name and profile to send the "friend" request, even if the attorney does not disclose that the reason for making the friend request is to obtain information for use in litigation. However, an attorney or someone working on his or her behalf cannot use a make-believe name or create a fake profile that is tailored to the background and interests of the person being "friended" in hopes of making it more likely that the person will accept the friend request.
The third and most recent opinion was issued by the New York County Lawyers' Association (NYCLA) and addressed whether lawyers may monitor jurors and prospective jurors' social networking pages. NYCLA decided that the passive monitoring of jurors, such as viewing a publicly available blog or Facebook page, is permissible as long as lawyers have no direct or indirect contact with jurors during trial. Lawyers may not act in any way that allows the juror to become aware of the monitoring (such as by sending a friend request). However, there is a wrinkle when it comes to sites such as LinkedIn and Twitter, which allow users to see who has recently accessed their profile. In its opinion, NYCLA strongly suggested that monitoring jurors through such sites might very well constitute an impermissible communication, since it might influence a juror's conduct with respect to the trial if the juror knows an attorney involved with the case has monitored the juror's LinkedIn or Twitter site. An even further wrinkle might arise if a lawyer discovers juror misconduct while monitoring the juror's social media sites. In such a case, can the lawyer use the misconduct for his or her client's benefit? The answer is no. Any misconduct must be reported to the judge before the lawyer engages in any further significant activity in the case.
As I mentioned earlier, there are many ethical questions yet to be addressed. Here is a quick rundown of a couple of them:
Competent representation: A lawyer has an ethical duty to provide competent representation to his or her client. So, does the failure to know how to navigate and use such sites amount to incompetent representation? For example, a recent study showed that 2/3 of divorce attorneys use Facebook as their primary source of online evidence. Thus, does a lack of familiarity with Facebook hamper an attorney's ability to provide competent representation, especially when their adversaries are likely to be using such online information? Some would argue that the answer is yes. Others would argue that attorneys have been competently representing clients in divorce cases for many decades without using evidence gathered from social networking sites. No doubt, the question will need to be resolved sooner rather than later.
Diligent representation: A lawyer also has an ethical duty to provide diligent representation to his or her client. If a lawyer doesn't search online for information favorable or detrimental to the client's case, and if a lawyer doesn't know that his client routinely posts information on social networking sites, and if a lawyer doesn't know how to navigate those sites, does that hamper the lawyer's effective and diligent representation? Time will tell.
The legal profession has never been accused of being on the cutting edge of technological advancement, but developments in online social networking have made it clear that the profession must move quickly in grappling with the countless ethical issues that this new technology has raised. It will be interesting (to me, at least) to see how the profession deals with these important issues.
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