Social Media Evidence: Confronting New Issues With Existing Rules (Part IV)

IV. Ethics in This Age of Social Media

The American Bar Association (ABA) has not yet addressed social media and given that recent advisory opinions have only begun to address modern technology issues such as those relating to law firm websites and email, it does not appear that clear guidance from the ABA will be soon coming.[1]  However, some argue that without a model rule to govern social media that could spur action, many state boards of bar overseers have been slow to provide clarification on social media and social networking issues.[2]  It remains unclear whether social media will be included in newer versions of other states’ ethical codes without first receiving some direction from the ABA.[3]  Instead, attorneys are being told to apply the regular rules of professional responsibility.[4]  The few states having issued formal opinions regarding the use of social media by attorneys all indicate that traditional rules of ethics are sufficient to govern this new age of social networking.[5] While new rules to directly address social networking websites could help courts and judges analyze problems and resolve ethical issues more quickly, the existing rules have been sufficient thus far. [6]

Another way to increase awareness and understanding of ethical considerations relating to social media would be to incorporate social media into existing professional responsibility curriculums.[7]  Law schools have a unique opportunity to drastically improve ethical awareness by integrating social media professionalism issues into material that may be difficult for students to relate to until they are actually practicing law.[8]  Unlike traditional materials and training, these social media issues are already relevant and to the student body experience and students can therefore relate better to instruction.[9]  Students could gain meaningful exposure to the duties of competence and diligence in relation to their own use of social media, as well as learn the canons of judicial conduct by contemplating a judge’s proposed professional and personal use of social media. 

Understanding how the existing rules of ethics intersect with social media is important to ensure that the duty of competency and the duty of diligence are met through proper use of social media.  Below I will explain how the current rules of professional responsibility have been able to remain flexible enough to fit social media, while new rules should be implemented to best address ethical guidelines for the judiciary.   

The Model Rules of Professional Conduct require that lawyers competently represent clients.[10]  Ethical competence requires a lawyer to posses the “legal knowledge, skill and preparedness reasonably necessary for the representation.”[11] In the comments that follow Rule 1.1, it is explained that lawyers “should keep abreast of changes in the law and its practice.”[12]  That duty of competence thus extends beyond the substantive law to include procedural and technical aspects as well.[13]  For several years, commentators have warned that discovery competency requires a basic understanding of general electronic discovery.[14]  Social media and social networking are now constant and ubiquitous and it is a phenomenon that has not escaped the legal community.[15]

Family lawyers and criminal defense lawyers must have a basic understanding of social media,[16] and the duty of competency may actually require them to warn their clients of the risks and dangers of using social-networking sites.[17]  Additionally, all lawyers have a duty to inform clients about when their duty to preserve social media evidence begins,[18] which is as soon as a party reasonably anticipates litigation.[19]  Especially in family law cases, a client should be informed of the duty to preserve their social media account beginning at the initial meeting and reminded throughout pendency of the case.[20]  Overall, it has been family lawyers that have noticed the biggest increases in use of social media evidence; in 2010 and 2011, there were 688 federal and state court cases that involved social media.[21]  As of 2011, more than half of divorce attorneys say that Facebook has been their best source for online evidence.[22] 

With this increased literacy and understanding of e-discovery, it is only a matter of time before courts begin to increase the issuance of sanctions for spoliation in relation to deleting electronically stored social media content.[23]  In one recent example, a court found both the plaintiff and his divorce attorney accountable for the willful destruction of the plaintiff’s Facebook page and imposed fines on the plaintiff in the amount of $180,000 and fined the attorney $542,000 to cover the defendant’s expenses to retrieve the deleted photos.[24]  In that case, the attorney may also face charges relating to his violation of professional conduct for deliberately deleting the Facebook photos that were responsive to a pending discovery request.[25] Specifically, Model Rule 3.4 prohibits lawyers from unlawfully altering or destroying evidence or assisting others to do so,[26] while Model Rule 1.1 articulates the duty to provide competent representation which now requires attorneys to well advise their clients about their responsibility to preserve social media content.[27]

In addition to the duty of competence, attorneys have a duty of diligence that may require a more hands-on understanding of social media applications.[28] Under the Model Rules of Professional Conduct, Comment 1 to Rule 1.3, a lawyer should act “with zeal in advocacy upon the client’s behalf.”  Therefore, a diligent attorney that is zealously pursuing a matter on behalf of a client may need to actually use social media to competently advocate for the client.[29]  However, the Model Rules of Professional Conduct clearly forbid lawyers from using deception to gather evidence.[30] The Rule 8.4 prohibition includes misrepresentations used to gather social media information.[31] Ethically, lawyers are free to scout public venues for statements or acts that could be beneficial to the client in court.[32] However, an attorney cannot pretend to be an adverse witness’s friend to gain access to the witness’s Facebook page.[33]  More state boards of bar overseers are taking disciplinary actions for violations of use of social media, and have clarified that an attorney can send a ‘friend request’ to obtain information from an unrepresented party so long as deception is not used to access the information.[34]

Social media has also been increasingly used by prosecutors attempting to gather information from communities as well as used to help educate the public.[35]  Depending on whether their actions have occurred within the prosecutorial function, absolute immunity may not shield prosecutors from consequences for their actions outside of their function including sanctions, public reprimands, overturned convictions, potential disbarment, or even civil suits.[36]  Also, relating to content posted by a prosecutor, special rules of professional conduct still apply to govern statements made to the press.[37] Therefore, prosecutors must be extremely careful in their social networking habits so as to not risk materially prejudicing an ongoing proceeding by making statements relating to: character, credibility, reputation of a party, suspect, or witness.[38]

Attorneys should also remain aware that judges, clients, friends, and colleagues, are using Facebook and other social networking websites.[39]  For example, an attorney appearing before a Texas court was caught in a lie when she requested a continuance due to a death in the family, but photos on Facebook indicated that she had been partying all week.[40]  At the same time, judges using social networking sites must pay particular attention to how that use relates to the judge’s ethical obligations regarding relationships and communications with others.[41]  The primary purpose of the ABA Model Code of Judicial Conduct is to maintain public confidence in the judiciary.[42]  Unlike attorneys, social media participation by judges raises important ethical questions that directly impact how courts are perceived in the emerging social media age.[43]   

The New York State Commission on Judicial Ethics has been the first judicial ethics committee to render an opinion regarding a judge’s social media use.[44] The commission found nothing “inherently inappropriate about a judge joining and making use of a social network.”[45]  The commission relied on a prior opinion that related to judges attending parties and religious services with other lawyers, the commission noted that judges may generally socialize with attorneys that appear in the judge’s courtroom, subject to the Judicial Code.[46]  Although the commission found that participation in the social network was permissible, judges should exercise extraordinary caution when doing so because the canons governing judicial conduct are imprecise and subject to fact-based, post-hoc applications.  What appears to be a seemingly innocent activity may have serious and perhaps irreversible consequences if the activities appear to others to be improper.[47]

  Attorneys, on the other hand, should simply be aware and careful of how they use social media without being discouraged from using the web as the valuable resource that it is.[48]  However, attorneys who use social media to communicate should exercise caution when “friending” clients or when initiating contact with judges, so as to avoid unintentional breaches of client confidentiality or prohibited ex parte communications with judges.[49] Additionally, attorneys can abide by rules of professional conduct while still engaging in permissible informal discovery, accessing the wealth of information that is easily obtainable and readily available from social media sites.[50]  So long as lawyers are aware of the means to legally access such information, clients can receive zealous, competent and diligent representation that is truly cutting edge in the profession.[51]