For many of the 15 million Australians now active on Facebook, casually sending 'friend requests' every time you make a new acquaintance has become commonplace. 1 However, if you are a member of the legal profession, it is now evident that serious thought must be given to sending and accepting these requests.
Whether it's a judge being disqualified for sending friend requests to parties to proceedings, or a juror being removed for connecting with the accused, the consequences for misusing Facebook in the context of legal proceedings are serious.2
As two US attorneys discovered in the New Jersey Supreme Court in April, using Facebook as a tool to gain private information for use in litigation, without an understanding of the ethical risks, is likely to give rise to disciplinary action.
John J Robertelli v The New Jersey Office of Attorney Ethics
This case arose from a personal injury matter, where the plaintiff (Dennis Hernandez) claimed to have suffered permanent injuries. The two defence attorneys, John Robertelli and Gabriel Adamo, used Facebook as a resource to obtain information about the extent and impact of Hernandez' injuries.
However, when Hernandez changed his Facebook privacy settings to restrict public access, Robertelli and Adamo directed a paralegal to continue observing Hernandez' Facebook activity. The paralegal subsequently sent a friend request to Hernandez, but without disclosing her identity or the true purpose for sending the request. Upon accepting the friend request, Hernandez unknowingly provided the defence with access to his private Facebook profile.
When the matter came to trial, and the defence sought to use information from Hernandez's private Facebook profile as evidence, Hernandez filed an ethical complaint with the local ethics committee. The complaint subsequently became the subject of a judgment in the New Jersey Supreme Court, with a unanimous decision finding the investigative and prosecutorial arm of the Supreme Court has the authority to pursue the complaint made against Robertelli and Adamo.
Whilst the judgment confirms the authority of the Supreme Court to pursue the matter, Robertelli and Adamo are not yet subject to any formal disciplinary process as a result of procuring the friend request. However, it is unlikely Robertelli and Adamo's claim of unfamiliarity with Facebook's privacy settings will be enough for them to escape disciplinary action.
A 2014 Opinion of the Massachusetts Bar's ethics panel suggests the odds are not in Robertelli and Adam's favour. In this Opinion, the ethics panel advised that a lawyer sending a Facebook friend request to an unrepresented adversary, without disclosing their identity, would be in breach of their ethical obligations.
Whilst Robertelli and Adamo's fate is uncertain, yours need not be
In Australia, mining for information in this way is likely to contravene the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (the Rules), which apply to solicitors in all Australian states and territories. In particular, Robertelli and Adamo's conduct would likely fall foul of rule 33. Known as the 'no contact' rule, the rule prohibits solicitors from directly contacting another practitioner's client without consent, except in a few specified circumstances.
Furthermore, directing a paralegal to send a friend request, rather than the solicitor making contact directly with the client, would not absolve an Australian solicitor of their obligations under the 'no contact' rule. It is widely accepted that a practitioner cannot avoid their duties to the Court simply by delegating tasks to others.3 Even if an individual used social media in this way, without the knowledge of their supervising solicitor, the solicitor may still find themselves in breach of their duty to exercise reasonable supervision of employees under rule 37 of the Rules.
With social media entrenching itself as an essential resource in the provision of legal services, numerous
professional associations for the legal profession across Australia have published non-binding guidelines on how to use social media effectively.4 All of these guidelines advise solicitors to exercise caution when connecting with people on Facebook. For example, the Law Institute of Victoria, in its Guidelines on the Ethical Use of Social Media warns that even accepting a friend request from another practitioner's client would be unethical.
These guides also warn solicitors of other common ethical risks which may arise in the context of social media use. Some of these ethical traps include unintentionally creating solicitor-client relationships by contributing to debates online and inadvertently breaching a duty of confidence to a client.
The precise ethical boundaries in this area remain unclear. However, legal practitioners would be wise to exercise discretion when sending or accepting friend requests, and law firms should develop clear social media policies to ensure their lawyers (and the employees they supervise) are in a position to navigate the ethical challenges posed by developing communication platforms. A failure to use social media ethically may not just have adverse reputational consequences, it may just prove fatal to your career.