Social Networking Sites Carry Ethics Traps and Reminders

Facebook, Twitter, LinkedIn, and MySpace are among the top social media websites that have transformed electronic communications and social interactions culturally. Inevitably, these communication techniques have also affected litigation practice and are brimming with ethical traps.

A recent advisory ethics opinion in Pennsylvania is a reminder to litigators that rules of professional responsibility apply when accessing social networks. The opinion concludes that using a third party to contact a witness through a “friend request” on Facebook and using the information found in a Facebook profile in litigation is deceptive and in violation of Pennsylvania Rule of Professional Conduct 8.4.

The communication “omits a highly material fact . . . [and] would purposely conceal that fact from the witness for the purpose of inducing the witness to allow access, when she [might] not do so if she knew the third person was associated with the inquirer and the true purpose of the access was to obtain information for the purpose of impeaching her testimony,” the opinion reasons.

The Pennsylvania ethics committee further opines that the deceptive conduct would also constitute the making of a false statement of material fact to a witness, in violation of its Rule 4.1.

While the opinion acknowledges that information in Facebook profiles is discoverable, the committee drew a distinction where elusive conduct was employed to access a Facebook page through deception, drawing an analogy to a videographer obtaining entry into a home by misrepresenting himself as a utility worker and installing a hidden camera.

Lessons Learned from PA
The Pennsylvania opinion reminds attorneys that although social networking may be prolific, attorney ethical obligations remain fundamental to avoiding deceit and/or misrepresentation.

Despite the technology, the basic iterations remain the same—attorneys should avoid using third parties to access private space on the web for use in litigation that they have either not been granted permission to access themselves or is not generally available to the public.

More and more litigators are routinely using the Internet as a discovery tool and are not opposed to using social networking sites. “Social media has become a powerful tool, but lawyers need to be aware of the ethical pitfalls that can arise by communicating in this manner and that user rules can transcend the casual, personal use that young lawyers are often used to,” says Elizabeth Acee, New Haven, CT, immediate past chair of the ABA Young Lawyers Division and current member of the ABA Section of Litigation Young Lawyers Leadership program.

“Young lawyers should be responsible with utilizing social networking and the worldwide web as litigation tools. Drawing the line starts with knowing your objective and coupling that with basic forthrightness,” reminds Keathan B. Frink, Fort Lauderdale, FL, cochair of the Section’s Solo & Small Firm Practice Committee.

“Although deception should not be used to obtain witness or party information, information on the world wide web intuitively should not enjoy the same privacy protection as information maintained in someone’s private home,” Frink cautions.

In practice, experienced and young attorneys all seemed to draw the line at using third parties as a deceptive or covert method of gaining access to party or witness information without disclosure of the third party’s association with the attorney.

Lawyers must “maintain the highest ethical standards in engaging third parties to act on their behalf, particularly in dealing with social networking sites like Facebook and MySpace,” advises Michele D. Hangley, Philadelphia, cochair of the Section of Litigation’s Ethics and Professionalism Committee.

“I think the applicable ethical rules are pretty cut and dry; you shouldn’t be deceptive or misrepresent your motives as an attorney to gain access to information to use in the context of litigation,” says Hangley.

Ethical traps in this area are not just limited to attorneys. The bar and bench alike should be aware. Recently, a judge in North Carolina was reprimanded [PDF] for “friending” counsel on Facebook and discussing an active litigation matter. See North Carolina Judicial Standards Committee, Inquiry No. 08-234 (April 1, 2009).

Tips for the Technology Savvy
Some basic reminders to guide an attorney’s use of social networking sites for litigation include:

• Avoid using third parties to contact counsel, parties, or witnesses without expressly disclosing that the communication is on behalf of the attorney, law firm, or client.
• Never use deception or misrepresentation in communications—including use of aliases and screen names that do not clearly identify you.
• Always identify yourself and the purpose of your communications.
• Understand and follow user rules associated with sites.
• Check with your state and local ethics boards for recent decisions to stay updated.

Perhaps the savviest advice comes from Damien Thomas, Miami, member of the Section’s Young Lawyer Leadership Program. “My motto in using online technology is ‘If it feels wrong, don’t do it!’”