December 31, 2014
According to a Washington Post report from October, close to 20 percent of the world’s population uses Facebook at least once a month, which amounts to 1.35 billion people.
As a result, Facebook has impacted many aspects of society, including the practice of law.
You probably already know that the social media site can be an excellent source of evidence in a variety of practice areas — from family law to personal injury law to intellectual property law.
Facebook can also help you to build your practice by attracting new clients and building a reputation in your community, as I discussed in a past post.
However, no matter if you are an attorney who uses Facebook to gather evidence or promote your practice — or both — it’s important to know how to use the social media network without violating the rules of professional conduct.
At a CLE this week presented by Clarion Legal entitled “New Millennium Legal Ethics,” a panel of distinguished attorneys from the Twin Cities addressed common modern-day scenarios where ethical violations may have occurred, including several involving Facebook.
Here are several of the scenarios that were discussed along with the panel’s opinions on ethicality:
- Accessing an opposing party’s public Facebook page. If the opposing party’s Facebook page is public, the panel agreed that you can feel free to access and make copies of what is posted to use in your case.
- Adding an opposing party as a “friend.” While an attorney may be tempted to add an opposing party as a friend on Facebook to gain access to a private page, the panel said this is considered unethical behavior if the person is unrepresented. The situation is explained in depth by the Massachusetts Bar Ass’n Comm. on Prof’l Ethics, Op. 2014-5.
Even if the opposing party was represented, the panel concluded it would still be unethical under the Model Rules of Professional Conduct*Rule 4.2 because accessing a private Facebook account can be considered communication “with a person the lawyer knows to be represented by another lawyer in the matter.”
- Having a colleague add the opposing party as a “friend.” Asking a paralegal, office assistant or another colleague to add the opposing party as a friend is still unethical, the panel agreed. See Rule 5.3(c) on the “responsibilities regarding nonlawyer assistants.”
Additionally, it could also be considered a violation of rule Rule 8.4(c), which prohibits an attorney from engaging “in conduct involving dishonesty, fraud, deceit, or misrepresentation.”
- Accessing an opposing party’s private Facebook account through someone who already had access. If it comes out that, say, a paralegal already had access to an opposing party’s Facebook account, it would be wise to avoid using the page as a source of evidence, the panel concluded after some debate.
It was also suggested that the opposing counsel should be made aware of the Facebook relationship so that the opposing client could have the option to “unfriend” the paralegal during the duration of the case.
- Creating a false Facebook account to gain access to an opposing party’s page. Again, this would be a violation of rule Rule 8.4(c), which prohibits an attorney from engaging “in conduct involving dishonesty, fraud, deceit, or misrepresentation.”
- Contacting an opposing party via Facebook message. Sometimes when an opposing party cannot be reached, attorneys may consider sending a Facebook message to him or her in effort to get a response. The panel concluded that this was likely ethical so long as the message made clear from the very beginning that the lawyer was representing an opposing party in a lawsuit that was seeking an outcome not favorable to the person being contacted.
The key is to make sure the opposing party knows who is contacting them and to give them the opportunity to ignore the communication. The panel also recommended getting an advisory opinion before making contact via Facebook.
- Evidence obtained through snooping on a spouse’s Facebook account during a divorce. Ultimately, the panel agreed that this common scenario comes down to whether the spouse was authorized to access the account. If not, the spouse who snooped may have broken federal and/or state privacy laws and the evidence gathered may not be allowed in court.
- Responding to a former client’s bad reviews on Facebook. If an attorney has a Facebook page for his or her practice that takes customer reviews, there is a possibility that some of the reviews may not portray the attorney very favorably. When that is the case, the panel said that it’s best to ignore the reviews and avoid getting into a debate with the client on a public forum, which could potentially raise client confidentiality problems.
- Posting work-related comments on Facebook. Many people use Facebook as a forum to vent about their jobs. However, if you are an attorney it’s best to keep your gripes off of Facebook. Posting something negative about a judge, client, opposing party or opposing counsel online can lead to reprimand.
The bottom line from the presentation was this: People could get away with much more on Facebook (and the Internet, in general) several years ago than they can today. Nearly everything is traceable, and privacy laws now extend to the web.
When in doubt, it’s best to ask for an advisory opinion from your state’s professional responsibility board before taking any action on Facebook that the board may not “like.”
*Note: For simplicity’s sake, I will be citing to the ABA Model Rules of Professional Conduct, which serve as models for the ethics rules of most states.