Given the growing importance of social media to lawyers, bar association ethics committees have sought to provide guidance in this emerging area. These committees have recognized that there are unanswered questions regarding the application of rules of professional responsibility to a variety of practice scenarios where lawyers and social media intersect. In New York, San Diego and Philadelphia, bar association ethics committees have issued opinions addressing lawyers’ social media communications with jurors, as well as parties represented by counsel.
As demonstrated in several recent cases, social media has emerged as a dangerous temptation to juror misconduct. Social media can also be a tool for misconduct in the hands of lawyers improperly interacting with jurors. Two New York bar associations have weighed in on jury research and social media.
In a nutshell, both opinions state that there is generally no problem with attorney use of social media for purposes of researching jurors. However, it is a problem if in conjunction with such research the lawyers use social media to communicate with the jurors. In addition, deceiving a juror by, for example, sending a friend request to his Facebook account posing as someone else, compounds the malfeasance. This prohibition extends to others working with or for the attorney. The lexicon of social media, including “tweets” and “friends” has officially entered the realm of legal ethics:
During the evidentiary or deliberation phases of a trial, a lawyer may visit the publicly available Twitter, Facebook or other social networking site of a juror, but must not “friend,” email, send tweets to jurors or otherwise communicate in any way with the juror, or act in any way by which the juror becomes aware of the monitoring.
If the attorney finds out through the juror’s social media activities that there is evidence of juror misconduct, the attorney is required to report this to the court.
Jurors are not the only ones outside the scope of a lawyer’s appropriate social media circles. Lawyers are prohibited from directly contacting parties who are represented by their own lawyers. Several ethics opinions have addressed the proper bounds of a lawyer’s social media activities with respect to such parties. The San Diego County Bar Committee on Legal Ethics, in opinion 2011-2, set forth the following factual scenario:
Attorney is representing Client, a plaintiff former employee in a wrongful discharge action. While the matter is in its early stages, Attorney has by now received former employer’s answer to the complaint and therefore knows that the former employer is represented by counsel and who that counsel is. Attorney obtained from Client a list of all of Client’s former employer’s employees. Attorney sends out a “friending” request to two high-ranking company employees whom Client has identified as being dissatisfied with the employer and therefore likely to make disparaging comments about the employer on their social media page. The friend request gives only Attorney’s name. Attorney is concerned that those employees, out of concern for their jobs, may not be as forthcoming with their opinions in depositions and intends to use any relevant information he obtains from these social media sites to advance the interests of Client in the litigation.
The committee concludes based on prior precedent that the high-ranking employees should be considered equivalent to the employer in terms of party status, which would trigger the prohibition on the attorney’s communication with them directly. It then considers whether sending a friend request is considered a communication for purposes of this prohibition. The committee concludes that it should be, after some analysis of the way friend requests are communicated through Facebook.
The San Diego committee also addressed certain objections to its opinion. The first is an objection that the friend request should be permitted under the rule that the friend request communication is not about the subject of the recipient’s representation by counsel. The committee states that this objection is based on a misinterpretation of the rule. Basically, the rule applies to any communication made by the attorney for purposes of assisting with his representation of his client in the case.
Another objection addressed by the committee suggests that “friending” an opposing party is no different than accessing their website. But this objection seems based on a misunderstanding of how Facebook works, as friends on Facebook typically have access to each other’s posts in ways that the general public does not. The committee references a concurring opinion by the New York State Bar Association, NYSBA Ethics Opinion 843 (2010), which states:
New York’s prohibition on attorney ex parte contact with a represented person does not prohibit an attorney from viewing and accessing the social media page of an adverse party to secure information about the party for use in the lawsuit as long as “the lawyer does not ‘friend’ the party and instead relies on public pages posted by the party that are accessible to all members in the network.
The Association of the Bar of the City of New York Committee on Professional Ethics, in its Formal Opinion 2010-2, “Obtaining Evidence from Social Networking Websites,” concurs, as does The Philadelphia Bar Association Professional Guidance Committee, Opinion 2009-02 (March 2009).
These early arrivals surely herald other ethics opinions dealing with social media in the near future. The ongoing growth in the variety of social media platforms and functionality means that new questions for lawyers trying to relate traditional rules of professional responsibility to current practice will proliferate. It is a good thing, therefore, that the legal profession’s ethics gurus are alert to the rise of social media and proactive in providing guidance in these uncharted waters.
The views expressed in this article are those of the author and do not necessarily represent the views of Ernst & Young LLP.