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.
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