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Attorneys Discuss Legal Ethics of Social Media Evidence

August 4, 2011 by Archives Leave a Comment

But before the hegemonic rise of social media, lawyers couldn’t use all evidence available to them simply because it existed. There are ethical rules that attorneys must abide by, and that doesn’t change simply because social media marks new and untested territory. Writing for the New York Law Journal, Christopher Boehning and Daniel Toal point to three recent ethics decisions that may shed a light on the future of social media use for lawyers. These ethical quandaries include the debate over social media use among jurors, propriety issues surrounding social media, and the prospect of “friending” potential witnesses.

On the topic of juror monitoring, for example, the New York County Lawyers’ Association wrote an opinion affirming that “passive monitoring of jurors, such as viewing a publicly available blog or Facebook page,” is ethical conduct, as long as the lawyer doesn’t extend this reach to direct or even indirect social contact, meaning likely that lawyers cannot friend or follow current or potential jurors on Facebook, Twitter, and LinkedIn.

The New York City Bar is more accepting when it comes to the prospect of contacting potential witnesses via social networks. An attorney can, they ruled, “use her real name and profile to send a ‘friend request’ to obtain information from an unrepresented person’s social networking website without also disclosing the reasons for making the request.” NYC attorneys cannot, however, contact witnesses under a false name or create a profile “tailed to the background and interests” of the witness in order to gain information.

There’s another important social media and law dilemma that goes unmentioned in Boehning and Toal’s article: the question of whether lawyers should be permitted to connect with judges through social media. So far, this question has been monitored on a state-by-state basis, with little input from the American Bar Association (although, the ABA says it is weighing the issue carefully). Here in California, judges and lawyers don’t have much to work with, aside from a 2010 California Judges Association opinion, which warns judges to be careful. “In short, notwithstanding the explosion of participation in online social networking sites, judges should carefully weigh whether the benefit of their participation is worth all the attendant risks,” the opinion concludes.

Of course, that doesn’t mean lawyers have ceased debating the subject. “It’s a poor idea for judges to participate in social media because you don’t know who’s reading what you post,” says San Jose federal Judge Jeremy Fogel. Northern District Magistrate Judge Paul Grewal takes the opposite approach, and accepts social media as mostly harmless. “It allows you to personalize yourself and reveal facets of your life and personality to a broader range of people,” he says. “Judges, I think, are at an unfortunate disadvantage because we are somewhat constrained in taking advantage of reasons to be on a social network.”

Investigation into the defendant or plaintiff’s social networking profiles has notoriously become a part of divorce law and employment law. In the past, lawyers have been caught trolling a spouse’s profile for an indication of adultery, and employers have caught employees betraying their false use of sick days. Everyone should be careful when using social networks like Facebook and Twitter, understanding that nothing you post online is ever fully private. But that doesn’t mean that lawyers have full reign to collect evidence without regulations.

Photo Credit: GJELblogger

Filed Under: News, Technology Tagged With: California, Lawyers, New York, social media, technology

Social Media For Lawyers Still a Hot Topic in California

June 30, 2011 by Archives Leave a Comment

There’s no doubt that the stunning rise of social media has left an indelible impact on most professional industries. But few industries have been as troubled by ethical questions following the rise of social media platforms like Facebook and Twitter as the legal industry. Many lawyers embraced social media in their personal lives, but professional conduct has proven to be a completely different story, especially when it comes to connecting with other lawyers, or even judges. While the American Bar Association has not yet set clear guidelines for ethical social media use among lawyers, the issue has sparked a spirited debate here in California and throughout the country.

“Whereas before I was much more free to post about my family, my kids’ baseball games, where I was,” San Jose Federal Magistrate Judge Paul Grewal told the San Francisco Recorder, “as a judge you have to be a bit more restrained in sharing those types of personal events.” This closely follows the advice of the California Judges Association, which ruled in 2010 that judges should always be cautious online. “In short, notwithstanding the explosion of participation in online social networking sites,” the advisory reads, “judges should carefully weigh whether the benefit of their participation is worth all the attendant risks.”

Many judges, like San Jose Federal Judge Jeremy Fogel, think that even Grewal’s relatively modest approach to social media leads to ethical questions. “It’s a poor idea for judges to participate in social media because you don’t know who’s reading what you post,” he told the Recorder. “And even if you’re just a passive viewer, you’re probably hearing and seeing things that you shouldn’t.”

Over the past year, the ABA has been reviewing its client development guidelines for lawyers, and this week released a report which stopped short of implementing clear rules, but seemed to suggest that Judge Fogel’s concerns are unlikely. The report’s cover letter states that “the commission concluded that no new restrictions are necessary in this area, but that lawyers would benefit from more guidance on how to use new client development tools in a manner that is consistent with the profession’s core values.”

Still, many observers agree that preventing lawyers and judges from using social media could raise first amendment issues. “The social media platforms are stretching the ethical ideas way beyond what has been thought about before,” said legal ethics expert Diane Karpman in an interview. But, she adds, “Putting regulations on social media is a violation of freedom of speech.” Karpman’s first amendment concern is likely a primary reason why the ABA would steer of blocking lawyers from social media. And this is a good thing. If a lawyer wants to act unethically, he or she will find a way with or without the help of Facebook. So when it comes down to it, the main impact that social media will have on the legal profession will be to increase transparency and make it easier for consumers to interact more directly with their attorney.

So if you’re a lawyer or judge, don’t seat the online stuff. If you’re careful not to betray your clients by leaking confidential information or harm an ongoing lawsuit, then the chances are that you can navigate social media without accidentally acting unethically.

Photo Credit: GJELblogger

Filed Under: Technology Tagged With: Lawyers, social media

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