Social Media Is a Powerful Tool, But Be Wary of Ethical Pitfalls

Social Media Is a Powerful Tool, But Be Wary of Ethical Pitfalls

Over the past decade, social media has changed the way millions of people engage both with each other and with the world around them. Connecting with old friends, sharing photos of a recent trip, keeping up with news and trends—each now requires little more than a click of a mouse, or the swipe of a finger. And the global and cross-generational success of platforms like Facebook confirm that this shift is more fundamental than fad. Today, some 80 percent of online American adults use social media regularly, and 52 percent of all Americans have at least one account of their own. Social media is here to stay.

With this ubiquity comes versatility. No longer is the impact of social media confined to our personal lives. Increasingly, it offers opportunities—indeed, even obligations—in the professional arena as well. This is as true for lawyers as it is for any class of professionals. As attorneys, it is critical that we recognize that the most effective—not to mention cost-effective—way to serve our clients may entail the use of social media. This is particularly true for in-house lawyers. A critical component of the in-house role often involves informal discovery—the gathering of relevant facts and information outside of formal, court-supervised channels. Not only does social media afford access to such material, that access is often immediate, generally inexpensive and potentially of incredible value.

Consider, for instance, investigating a potential products liability suit. The plaintiff claims injuries so severe as to preclude ordinary employment. Yet a quick search of the plaintiff’s public Facebook profile reveals pictures of the plaintiff rock-climbing and line-dancing—evidence far more damning than what one normally could expect to elicit at a deposition. Social media may prove equally valuable in the employment context. Imagine a wrongful-termination plaintiff whose posts on Twitter depict a vivid narrative at sharp odds with her formal pleadings, not thinking anyone at work will think to check. Uncovering this string of tweets—seemingly innocuous to their intended audience—may prove the difference between being forced to settle and securing dismissal. But, of course, what social media gives, it can also take away. It is vital that attorneys investigate, verify and (if need be) curate their own clients’ web presences to avoid the sudden emergence of a damaging photograph or contradictory statement.

Of course, social media provides access to far more than just ill-advised posts and rants. It can prove a powerful and proactive investigative tool. Pirated content or trade secrets frequently end up on shared-content platforms like YouTube. An adverse expert’s potential biases may be revealed through the employment or publication history on her LinkedIn profile. A simple link from a corporation’s social media account may form the basis of a claim of unlawful marketing. Simply put, attorneys who have yet to incorporate comprehensive social media searches into their practices place their clients at a distinct competitive disadvantage.

If there is one lesson to be gleaned from this, it is that social media cannot be ignored. If your grandmother is on Facebook—and many are—then the same is likely true of your clients, opposing parties, witnesses both favorable and adverse, counsel for the other side and even potential jurors. They are among those contributing to the 2.5 billion tweets, 70 million Instagram photos and hundreds of hours of YouTube content posted every day. In that mass of information just might be the critical fact that turns a settlement negotiation, becomes a focal point of the record at trial or informs subsequent, targeted formal discovery requests.

Yet, as vital as social media has become to the practice of law, engaging with it may not always feel like the practice of law. While many of the tasks described above seem more like the work of an investigator than of a lawyer, when carried out by lawyers—or, critically, those hired and supervised by lawyers—they may indeed constitute the practice of law. With this designation comes a host of ethical duties and rules of professional conduct. And just as social media has enabled new and innovative ways to uncover information, so too has it generated new and thorny ethical problems for lawyers. Staying abreast of the latter is just as critical as remaining current on the former.

Among the most elemental ethical obligations for attorneys is the duty to refrain from conduct involving dishonesty, fraud or deception. The breadth of conduct covered by this principle is no accident. And the world of informal discovery—where social media is so valuable—is rife with temptation to resort to such tactics. At the risk of oversimplifying, information that one party wants is quite often information which the opposing party would rather not see the light of day. Imagine, for instance, the products liability plaintiff described above indeed has a Facebook page, but the posts and photos are hidden from those who are not the plaintiff’s “friends.” It may seem a simple solution to “friend” the plaintiff in the hope of gaining access to the non-public content. But be careful. Must you use a profile containing your real and full name? Must you disclose your affiliation and your purpose for seeking access? Must you reveal the identity of your client? The answers will depend on the specifics—and, critically, the jurisdiction. But various bar association ethics committees have answered each of the above questions in the affirmative.

Another important rule to consider is the lawyer’s duty—uniform across jurisdictions—not to communicate with represented parties concerning the subject of the representation. But what about a Facebook “friend request” or a request to connect via LinkedIn? Each generates an automated communication to the target. Is this sufficient to constitute impermissible communication? Again, caution is urged, as various ethics committees have concluded in the affirmative, albeit with certain caveats and carve-outs. Because access to a represented party’s non-public content is sought to uncover information related to the representation, the incidental communication it triggers may be construed as related to the representation as well.

Of course, a lawyer may be tempted to avoid these concerns by farming out social media research to a paralegal or assistant. And, indeed, the motivation for doing so may not necessarily be nefarious—a younger employee in a support role may simply be more familiar and adept with those platforms. However, lawyers have an ethical obligation not only to supervise the work of non-lawyers assisting them, but also to ensure that non-lawyers meet the same ethical standards governing lawyers. This means that a “don’t ask, don’t tell” approach will not suffice.

Additionally, it is critical not to lose sight of the ethical obligations in managing the social media footprints of one’s own client. Today, even large corporations have substantial and growing social media presences, and that information may become subject to preservation duties and hold notices—for instance, when unlawful marketing or infringement litigation appears imminent. Ethical principles counsel that, while attorneys may instruct their clients either to remove or render private information available online, they must nonetheless preserve a record of such information where it may later prove relevant to litigation.

A final note: While the well-prepared lawyer should always remain abreast of ethics developments in her jurisdiction, this practice is particularly vital in this context. As with the technology itself, the application of ethical principles in the world of social media is in a near-constant state of flux and development. There is little case law, and the slowly growing number of ethics committee opinions are non-binding. Moreover, significant differences exist from jurisdiction to jurisdiction. A New York City ethics committee, for instance, has suggested that a lawyer need not disclose her purpose in “friending” an unrepresented party, while committees in both Philadelphia and New Hampshire have reached the opposite conclusion. A failure to remain abreast of—and follow—applicable ethics standards may quickly undo any good wrought by your savvy social media sleuthing.

The foregoing survey of potential ethical issues is by no means intended to be exhaustive. But importantly, it is not intended as a deterrent either. A rich understanding of social media can transform your practice. Understanding the capabilities and the obligations associated with such use will help lawyers meet both productivity goals and professional standards. Now that’s something worth liking.