Social media increasingly has been recognized as a valuable resource among the legal profession--both within the corporate world and among private practitioners.1 Social media profiles can provide a wealth of publically available information concerning the background, interests, and even personality of adverse parties, witnesses, jury members, potential employers, and prospective clients. As more individuals and corporations choose to communicate through social media channels, lawyers also are realizing that there is value in maintaining their own social media page in order to keep in touch with current and former colleagues and clients, promote their capabilities to current and potential clients, and to keep informed regarding potential employment opportunities.2 Others write legal blogs to share their opinions about a particular area of law, providing legal resources to the public, and increasing attorney recognition.3
However, due to features that can blur the line between our offline and virtual life, social media should be used with care by lawyers to avoid ethical issues with potentially serious consequences.4 Inadequate understanding of the scope and consent of information shared on the Internet along with the policies and issues associated with the content can lead to professional pitfalls. These pitfalls include, breaches of confidentiality, inadvertent attorney-client relationships, unauthorized practice of law, violation of advertising rules, and creation of issues or positional conflicts with clients. This article aims to distill important ethics opinions in the field and provide practical guidance regarding both potential risks associated with the use of social media by lawyers, and guidance on how to avoid making a blunder while taking advantage of this widely used platform.
Lawyers have a duty to provide competent representation to their clients. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for representation.5 In an age where social media is woven into daily life, a lawyer may not possess the requisite competence for certain legal tasks absent knowledge of the basics of each social media platform that a lawyer or his or her client uses.6 Over the past few years, courts have recognized that the widespread use of the Internet, including use of social media, has transposed the practice of law.
In Johnson v. McCullough,7 a patient asserted medical malpractice against a gastroenterologist for negligently performing surgery regarding a throat condition. Even though plaintiff's counsel specifically asked about prior involvement in litigation by any venire member during voir dire, a jury member had been a defendant in multiple recent, relevant cases. After trial, plaintiff found out about the jury member through social media research and filed a motion for a new trial on the grounds of juror nondisclosure during voir dire. The Circuit Court granted plaintiff's motion and the doctor appealed. Affirming the Circuit Court's decision, the Supreme Court adopted a formal rule that requires litigants to use reasonable efforts to examine jurors' prior litigation history, emphasizing attorneys' increased responsibilities "in light of advances in technology allowing greater access to information."8
Lawyers likewise have a duty to ensure that accurate contact information, including their email addresses, are available on the Internet. In II,9 the Counsel for the Commission on Lawyer Conduct notified the Supreme Court that a South Carolina attorney refused to provide a valid email address to the Attorney Information System (AIS) online. Prior to the notification, the attorney repeatedly made filings contesting orders that she provide a working email address, arguing that she is exempt from the email requirement in Rule 410 of the South Carolina Bar because she was retired. The Supreme Court placed the attorney on interim suspension, noting that the attorney is classified as a regular member of the bar, and therefore, required to log-on, verify, and update her contact information on the Internet.
Giving Legal Advice
With social media platforms that are highly interactive and include features such as sharing photos or posts, lawyers should be extra-cautious about giving legal advice on social media.10 A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client. Consequently, social media use can increase the risk that a lawyer could form an inadvertent client-attorney relationship, such as by answering a legal question that can be construed as a "specific request" to retain him or her as a lawyer.11 While answering general questions on the Internet can be analogous to writing publications on legal topics, specific answers or legal advice can lead to ethical violations as they may impermissibly disclose confidential information, inadvertently create attorney-client relationships, or case lead to the unauthorized practice of law in a forum where the lawyer is not licensed.
Attorney Advertising and Communicating with Clients
Social media profiles, posts, or blogs that are related to business purposes may be subject to the attorney advertising and solicitation rules of the relevant jurisdiction.12 Accordingly, lawyers need to fully understand the benefits, risks, and ethical implications associated with social media to comply with such rules, including being aware of how "attorney advertising" and "specialist" are defined. In general, profiles that contain objective biographic information, such as education, years in practice, and the number of cases handled in a particular filed, do not constitute advertising.13 However, for example, if a lawyer's profile includes subjective statements that are reasonably likely to create an expectation about results the lawyers can achieve or testimonials or endorsements of clients, the profile may be considered advertising.14 Lawyers also may be prohibited from using the term "specialists" to describe themselves under areas of practice, unless appropriately certified as such.15
In addition to ensuring that all posted content is accurate and does not include any prohibited statements, lawyers also bear responsibility for monitoring that content, and removing information that is misleading, false or deceptive, or otherwise does not comply with applicable ethical rules. As to their clients, "lawyers may counsel clients about removing material [or about advising on changing her privacy and/or security settings] from social media sites so long as the advice does not violate statutory or common law."16
When litigation is anticipated, however, lawyers must counsel clients to preserve potentially relevant information and should not delete or advise a client to delete information from a social media profile that is subject to preservation.17 Failure to do so may result in sanctions.18 In Allied Concrete Co. v. Lester,19 a wrongful death and personal injury suit arising from an automobile accident, the defendant served a discovery request seeking screen shots of the plaintiff's social media profile. Concerned that certain photographs would not reflect well on his client, the plaintiff's attorney instructed a paralegal to tell plaintiff to "clean up" his social media account and delete certain photographs that were unhelpful to the litigation. Consequently, the plaintiff deleted 16 photographs before taking the screen shots for discovery. The court decided to sanction the plaintiff and his attorney in part for spoliation of evidence in the amounts of $542,000 and $180,000, respectively.
Social Media as an Evidentiary and Investigative Tool
Attorneys also should keep social media in mind when preparing discovery requests as they can be powerful evidentiary and investigation tools. Information posted on social media has been accepted in numerous cases as evidence. In Ledbetter v. Wal-Mart Stores, Inc.,20 plaintiffs brought a personal injury case against Wal-Mart for injuries they acquired from performing electric work as subcontractors. The plaintiffs requested private messages, blog entries, photos, user logs, and other social media information of the personal injury defendant. In response, the district court issued a brief order finding that such requests were "reasonably calculated to lead to the discovery of admissible evidence."
In a separate case, Bass v. Miss Porter's School,21 the court also allowed information posted on and communicated through social media as admissible evidence. A student who had been expelled from a private high school filed a suit against the school and school official for multiple causes of actions, including breach of fiduciary duty. In the case, the defendant-school requested production of the plaintiff's social media content related to the plaintiff's alleged teasing and taunting or any content related to the communications involving the plaintiff's claims. The court overruled the plaintiff's objection to the production of such documents, noting that the social media documents "revealed a number of communications to and from Plaintiff that" were relevant to the action, and the scope of what may be "reasonably calculated to lead to the discovery of admissible evidence" should not be limited.
Using Social Media with Judges and Jurors
In general, lawyers may research a prospective or sitting juror's public social media profile and monitor a juror's account during trial. However, "lawyers must exercise extreme caution when `passively' monitoring a sitting juror's media presence" as communication with a prospective or sitting juror or a judicial official over social media is strictly prohibited. Communication can exist even when lawyers are not actively interacting with clients or prospective clients on social media. For example, certain social media platforms are designed to send automatic message to the person whose account is being viewed.22 Such automation requires lawyers take caution even when passively viewing certain information available on public profiles, and reflects the importance of social media competence.
In Domville v. State,23 the defendant sought to disqualify a judge who was a Facebook "friend" of the prosecutor, and the judge refused to self-disqualify. "Friending" is a process through which a member of a social media network designates another as a "friend" and can grant him or her access to view the member's restricted content.24 The court recognized that the "ability of judges to participate in social media with attorneys who appear before them is of great importance to many." Because it is necessary to maintain an appearance of impartiality, the court must insure that the parties and judicial officials avoid entanglements and relationships that compromise that appearance. The district court, in quashing the order denying disqualification of the trial judge and remanding the case to the circuit court, highlighted the limited scope and use of social media by judges:
Judges do not have the unfettered social freedom of teenagers. Central to the public's confidence in the courts is the belief that fair decisions are rendered by an impartial tribunal. Maintenance of the appearance of impartiality requires the avoidance of entanglements and relationships that compromise that appearance. Unlike face to face social interaction, an electronic blip on a social media site can become eternal in the electronic ether of the internet. Posts on a Facebook page might be of a type that a judge should not consider in a given case. The existence of a judge's Facebook page might exert pressure on lawyers or litigants to take direct or indirect action to curry favor with the judge. As we recognized in the panel opinion, a person who accepts the responsibility of being a judge must also accept limitations on personal freedom.25
Social media provides a virtual community for people to communicate and share interests with friends, family, and the public, including inquisitive lawyers. When used with caution and awareness of the different policies with its use, social media can be an important tool for lawyers to network, gather appropriate information, and promote themselves.