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Social Media: Ethical Obligations for Lawyers in the Modern Era II

Constantly evolving technology affects attorneys in many ways. In Part I of our series we addressed the need to stay technically competent and how a failure to do so will impact our ethical duties. Some other ethical issues for lawyers, spurred by 21st century technology include how attorneys can or should take advantage of social media; and how to manage data in the cloud.

Social Media and Privacy

Privacy and social media have also raised new ethical obligations. Today's constantly changing social media environment can range from social sharing sites such as YouTube and Flickr, through social networks such as LinkedIn and Facebook, and other media, including blogs, Twitter, crowdsourcing and location tracking. Attorneys must be competent when using social networking tools and at least have an understanding of the technology.

Attorneys may think about "friending" potential jurors on Facebook in order to gain more insights into their habits, views and ways of thinking. They may also consider asking non-lawyers, such as paralegals, to make connections with a defendant on LinkedIn or conduct research by browsing through publicly available information on social media sites. Some state and local bar associations have issued opinion pieces on a variety of ethical questions raised by social media, and attorneys should be aware of relevant rulings and opinions.

Court Rulings

Courts have also considered the ethical implications of social media and have granted access to social networking sites in some cases. In Romano v. Steelcase, Inc., 30 Misc. 3d 427, 907 N.Y.2d 650 (N.Y. Sup. Ct., Suffolk Co. 2010), plaintiff claimed she had suffered permanent injuries that affected her enjoyment of life when she fell out of an office chair. The defendant sought to access the plaintiff's current and historic Facebook and MySpace pages, which revealed that she had an active lifestyle and had traveled during the time period she claimed that her injuries prohibited such activity. The court held that since neither Facebook nor MySpace guarantee complete privacy, the plaintiff had no legitimate reasonable expectation of privacy. "When plaintiff created her Facebook and MySpace accounts, she consented to the fact that her personal information would be shared with others, notwithstanding her privacy settings," the court noted. "Indeed, that is the very nature and purpose of these social networking sites, else they would cease to exist." While the Romano case sets an important precedent with respect to the discoverability of social networking sites courts will not likely hand over access to these sites without a showing of potential relevance.

Ethics Opinions

Even though there is no privacy right regarding information contained on social networks attorneys must be careful when attempting to access private information contained on the sites. In New York, lawyers may not use false or deceptive information to "friend" a party or non-party in order to obtain private, non-public information. See The Ass'n. of the Bar of the City of New York Comm. on Prof'l Ethics, Formal Op. 2010-2 (2010); and N.Y. State Bar Ass'n of Comm. Prof'l Ethics, Opinion 843 (2010). Lawyers should use the normal discovery devices, such as a request for production of documents or a subpoena, to acquire discovery from social networks.

Be Careful What You Say

Also, be careful about using terms like "Evil, Unfair Witch" and "Judge Clueless" on your blogs and social networking sites to describe judges. A Florida lawyer was reprimanded and fined $1,200 for questioning the motives and competence of a judge. An Illinois lawyer lost her job as an assistant public defender for her blog postings where she referred to "Judge Clueless" and referred to confidential information on her blog. Lastly, there is the story of the Texas lawyer who asked for a continuance due to a death in the family and then posted status updates detailing her week of drinking and partying -- which was seen by the judge on the case. The lesson learned here is -- be careful what you say in a public space.

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