Ethical Pitfalls of Social Media
The latest data indicates that almost 80% of online adults use Facebook. While we let the significance of that number sink in for a few moments, let’s look at an even more fascinating trend: 91% of Facebook users use the site daily or at least weekly. What can we take away from these astonishing numbers? Social media is much more than just a part of our society. It is fully intertwined with, and effects virtually every corner of American life.
As such, it should come as no surprise that social media has had an enormous impact on legal professionals nationwide and the matters that we handle. Simply follow ethics opinions and case law nationwide for a few weeks and one will quickly realize the extent to which lawyers and paralegals are making substantial errors when it comes to their handling of social media either in their own professional profiles or, alternatively, in providing legal counsel regarding their client’s usage. The volume of cases, ethics opinions, and amendments to rules of professional conduct concerning social media and technology has reached a frantic pace.
Here is a short list and brief summary of just five major ethical pitfalls social media can potentially impact in a legal matter:
Competence – Traditionally, RPC rules on competence required that a lawyer stay updated in the law and changes in the practice. That meant continuing legal education and professional networking. More recently, however, competence rules are being amended and/or interpreted to require legal professionals be updated in technology and its impact on the practice of law. In other words, ethics rules are now placing a responsibility on understanding not only the technology we are using but also the technology our clients and adversaries are using as well. It should not be surprising to now see some states now requiring attorneys to receive a certain number of “technology” training hours each year as part of the MCLE obligations.
Confidentiality – Back in the good old days we were careful with the coveted fax machine or e-mail system. Today it’s a totally different ballgame where technology has made in increasingly easy to inadvertently send or receive confidential information pertaining to a legal matter. Recently, the ABA has issued amendments advising that lawyers must utilize “reasonable” measures to protect against inadvertent or unauthorized access to confidential materials.
Candor & Fairness to Opposing Parties, Counsel, and Tribunals – The Internet is a fascinating treasure trove of potential information. That said, legal professionals must be careful about how they are acting and with whom they are talking to online. Ethical concerns range from ex parte communications to deceptive/misleading practices. In a case that received nationwide headlines recently, “friending” and adversary in a legal matter without informing them of your true identity or motives violates several rules of professional conduct. As it’s become known, “hostile friending” is not your best friend. The ABA, in a Formal Opinion 466, distinguished between “passive review” and “active review” and indicated that while the former would be an ethical practice the latter most certainly would not.
Advertising & Solicitation – The power of social media when it comes to the ability to network and market is second to none. It’s alluring features, however, do not permit legal professionals to simply toss aside the strict restraints on advertising and solicitation. Just like in the “hostile friending” case, people tend to act differently online and there have been many instances where attorneys have been sanctioned for doing something online that they would never try in person. Legal professionals have an ethical obligation to monitor their social media platforms to ensure that everything on them, even posts by third parties, are true and accurate and do not create unjustifiable expectations from the public.
Spoliation of Evidence – Destruction of evidence in legal matters is not a new phenomenon. What seems to be is the frequency of its occurrence in our world that is now driven by electronically stored information (ESI) and metadata. Rules of procedure nationwide are playing catch up with amendments that now specifically reference ESI. As reference above, the same legal professional who is unable to competently counsel clients with regard to technology is the one at most risk of having a destruction of evidence issue in a case. The consequences are severe…adverse inference charges, partial dismissal of claims, dismissal of the entire case, sanctions just to name a few.
In today’s complex, data driven, corporate world legal professionals must make understanding social media and technology one of their highest priorities. By no means do the ethics rules require that we understand as much about Facebook as Mark Zuckerberg, but the trends are abundantly clear. Those of us who ignore these new ethical obligations are running a significant risk of falling into some major ethical hot water and legal malpractice concerns.