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Social Media and Legal Ethics: Attorney Advertising and The Investigative Uses of Social Media

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Social Media and Legal Ethics: Attorney Advertising and The Investigative Uses of Social Media

This CLE program will cover the principal legal ethics rules implicated by lawyers’ social media use. In particular, we will cover the ethics rules governing confidentiality, trial publicity, and attorney advertising and solicitation— Model Rules 1.6, 3.6, 7.1 and 7.3— and how those rules interact with lawyers’ social media use. The second half of the presentation will detail the investigative uses of social media, including how Model Rules 4.2, 3.5, and 8.4 govern contact with represented persons, researching jurors, and impeaching witnesses.

Presenters

Hilary Gerzhoy
Associate
Harris, Wiltshire & Grannis LLP

Transcript

Hilary Gerzhoy - Hello. My name is Hilary Gerzhoy. And I am a partner at Harris, Wiltshire & Grannis where I serve as vice chair of the legal ethics and malpractice group. Hello. My name is Hilary Gerzhoy. And I am a partner at Harris, Wiltshire & Grannis and I am vice chair of the legal ethics and malpractice group. My practice focuses on representing lawyers and law firms in disciplinary investigations and prosecutions.

Today I'm going to be presenting a CLE on legal ethics and social media. In particular, I'll be focusing on advertising and marketing using social media and the ethics roles that are implicated, in particular are the confidentiality rules, and the rules governing solicitation in advertising. And in the second part of the presentation, we'll discuss the investigative uses of social media and the ethics rules that are implicated in that, which in particular involve rules governing competence, the collection of evidence, contact with represented persons during investigations and litigation, the rules governing researching and contacting jurors, and the rules that govern impeaching witnesses. So as everybody is familiar, there are many different forms of social media. As it relates to the ethics rules, social media is defined as covering things like blogs, apps, business reviews, video sharing, geolocation networks, photo sharing, and music sharing. So let's first talk about advertising and marketing using social media.

So the first rule that I'll discuss that is involved in advertising and marketing is 1.6 A. And for purposes of this presentation, I'll be focusing on the model rules. Every jurisdiction has its own rules. Many have adopted the model rules, but before making any decisions and reliance on the rules, you wanna make sure that you review your jurisdiction's particular set of rules. So model rule 1.6 A says that a lawyer shall not reveal information relating to the representation of a client. Comment two describes that a fundamental principle in the client-lawyer relationship is that the lawyer maintain confidentiality of information relating to the representation. It's really important to note that the scope of confidentiality is far broader than attorney-client privileged information. This is highlighted in comment three. This is not necessarily something that is intuitive. We think of what is covered by attorney-client, the attorney-client relationship and the attorney-client privilege as confidential, but pursuant to 1.6, the information that you're required to keep confidential in the scope of a representation actually covers more than what is justified as information relating to the attorney-client privilege.

In March of 2018, the ABA issued Formal Opinion 480. And what that opinion says is that lawyers who blog or engage in other public commentary may not reveal information relating to a representation that is protected by rule 1.6 A, including information contained in a public record, unless disclosure is authorized under the model rules, which is under a particular set of circumstances. The caveat or requirement that 1.6 covers information that's contained in a public record is perhaps counterintuitive to many lawyers.

So I'm going to discuss an opinion that came out of Virginia called Hunter versus the Virginia State Bar. And it came out of the Third District Committee of Virginia. And what that opinion held was to the extent that information is aired in a public forum, privacy considerations must yield to First Amendment protections. In that respect, a lawyer is no more prohibited than any other citizen from reporting what transpired in the courtroom. And in that case, the lawyer actually argued that he should be allowed to blog about cases in which he had represented individuals that were part of the public record. His blog only mention cases that were publicly available and information that was publicly available. Hunter is very much an outlier opinion. So a couple of things to note, ABA Opinion 480 heavily criticizes Hunter and says it's limited to its facts and that it is not broadly applicable. The court in Hunter said it only applies to matters that have been concluded.

So to the extent that a lawyer is publicizing information about an ongoing case, they run afoul of the rules. I think the bottom line with Hunter is that should be very circumspect in relying on the case, because it is an outlier jurisdiction and also the ABA has explicitly noted that it is critical of the outcome viewing the fact that First Amendment, the First Amendment rights that lawyers enjoy have to yield to confidentiality concerns at times. And so simply because information is contained in the public record does not mean that a lawyer is allowed, pursuant to 1.6, to reveal that information. So one common question that comes up is the duty of confidentiality with respect to websites and other publicity that lawyers wanna engage in.

So the question is, can you reveal a client's name on your website without informed consent from the client? This is something that we see all the time and often it is the case that lawyers have not actually gotten the requisite permissions to do it. So under the ABA standard, which most jurisdictions have adopted, that a client's name is really information that relates to the representation, sort of the most critical information that relates to the representation. And so the answer really is that without informed consent, you're likely running afoul of 1.6. Now it's possible that you attempt a Hunter defense and you say, if the representation is concluded, and it's publicly available, that you can put it on your website, but it's not clear at this point if other jurisdictions actually follow Hunter and would choose to follow Hunter. And it's very clear that the ABA and model rule jurisdictions would question whether or not that was permissible. Even if your client gives you permission to discuss his or her case, the ABA model rules impose restrictions on your ability to publicize certain work. So separate and apart from your 1.6 obligations, there are rules that govern trial publicity generally.

So let's talk about model rule 3.6. And what 3.6 says is that a lawyer who is participating or has participated in the investigation or litigation of a matter shall not make extra judicial statements that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing and adjudicative proceeding in the matter.

So what rules govern how and when you can advertise your abilities and solicit clients? The first is model rule 7.3 A which defines solicitation. And it says solicitation or solicit denotes a communication initiated by or on behalf of a lawyer or a law firm that is directed to a specific person the lawyer knows or reasonably should know needs legal services in a particular matter and that offers to provide or reasonably can be understood as offering to provide legal services for that matter. So that's a very broad definition in the model rules. And then rule 7.3 governs what those restrictions are. So it says a lawyer shall not not solicit professional employment by live person to person contact when a significant motive for the lawyers doing so is that the lawyers or law firm's pecuniary gain is implicated unless the lawyer is contacting, and there are three exceptions here, which is you're allowed to contact another lawyer. You're allowed to contact a person who has a family, close personal, or prior business, or professional relationship with the lawyer or the law firm, or you're allowed to contact a person who routinely uses, for business purposes, the types of legal services that are offered by the lawyer.

The motivation here is really that live person to person contact, which includes phone calls and live phone calls, and not just face-to-face interactions, put a potential client in a position that can be, they can feel pressured, or it can be stressful. And so the idea under the model rules is that solicitation of those people is really prohibited unless you fall within one of these exceptions. And the thinking is that these exceptions are really individuals who would not feel unduly pressured to retain the lawyer services or hire the lawyer. So let's talk a little bit about how, if you wanna be in compliance with the rules regarding advertising and marketing, what labels and disclaimers you need to put on your material.

So the first question is if you tweet out an advertisement for yourself, do you need to include the advertising material label on everything? The answer is no, because there's a distinction between tweeting something out and calling somebody on the phone or having a live in-person interaction with them. So under comment one to model rule 7.3, a lawyer's communication isn't solicitation at all, and therefore not governed by the solicitation rule we just described if it's directed to the general public, such as through a billboard, an internet banner advertisement, a website, or a television commercial, or if it's in response to a request for information, or automatically generated in response to electronic services. So again the thinking is that because a tweet is made accessible to the general public in the same way as a billboard is accessible to the general public, there's no undue pressure on the part of the person who is receiving that advertisement. And so you don't need to provide a disclaimer.

Next let's discuss some of the types of advertisements and marketing techniques that lawyers sometimes use and the rules that govern those types of advertisements. So one question comes up, can you post on Facebook, on LinkedIn, on Twitter that you never lose a case? And the answer is that you can't, because you cannot mislead and what qualifies as misleading is actually fairly broad. So under model rule 7.1, a lawyer shall not make a or misleading communication about the lawyer or the lawyer services. And a communication is deemed to be false or misleading if it contains a material misrepresentation of fact or law or omits a fact necessary to make the statement considered as a whole, not materially misleading. The idea is that a communication that accurately reports a lawyer's achievements on behalf of clients or former clients can be misleading if it's presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters without any reference to the specific factual and legal circumstances of each client's case.

So even if it's true that you never have lost a case, under the model rules and particularly under comment three, the thinking is that even if that's an accurate statement, it creates an unjustified expectation without an appropriate disclaimer that any client who is going to hire you, will have assurances that you will win the case. And you can't know that, and you can't predict that. And so you have to be able to provide disclaimers that show that your having never lost a case before relates to prior work, which is not necessarily predictive of future outcomes. Next let's talk about what happens when it's not you who is actually putting out information that could be misleading to the public, but it's a client or even a colleague. So one feature of LinkedIn that people often use is they have endorsements and skills that they list. And depending on your LinkedIn settings, you can have other people can endorse you for things even if you yourself have not listed them as a skillset.

So we've seen instances in which a client, for example, can endorse you for something that you don't actually do. So in this particular hypothetical, a client endorses you for expertise in Supreme Court litigation even though you've never had a case in front of the Supreme Court. And he also posts a testimonial stating that you are the best lawyer in Virginia, and that you never lose a case, what should you do? The answer is that even though you're not the one to put the information out there, you're obligated under the model rules to delete any misleading endorsements.

Model rule 8.4 A states that you can't allow clients to say anything that you couldn't say. So if you don't have expertise in Supreme Court litigation, or if you could not say under the rules, which is prohibited, that you are the best lawyer in Virginia, then a client can't say it on your behalf. The next topic we'll talk about are some of the investigative uses of social media. And in particular, the rules governing competence, the rules governing evidence and relevance and preservation of evidence. The rules that govern contacted with represented persons, researching and contacting jurors, and impeaching witnesses. So rule 1.1 states that a lawyer shall provide competent representation to a client and competent representation requires the legal skill, knowledge, thoroughness, and preparation that's reasonably necessary for the representation.

Comment eight to model rule 1.1 clarifies that to maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology and should engage in continuing study and education and comply with all legal education requirements to which the lawyer is subject. So the requirement, which is sometimes surprising to some lawyers that you have to stay abreast of the benefits and risks associated with relevant technology actually puts a burden on lawyers that they need to be aware of. And that requirement means that lawyers have to know how the technology that they are using or should be using could impact the client representation and that implicates the rules governing competence, it also implicates the rules governing confidentiality. You have to make sure that the information that you are saving and sharing in relation to a client is safe, such that there is not unauthorized disclosure. So there's a lot of rules implicated and there's a lot of requirements that are imposed upon lawyers who are in the course of representing clients and are gonna be using technology, which is truthfully all of us. So competence includes familiarity with social media and its consequences.

So there was a west Virginia Case that came out in 2015 and it specified that in order to comply with your 1.1 competence obligations, that a lawyer should understand how social media functions and advise their clients on the issues they may encounter as a result of their use of social media. And that includes potentially advising clients to change their privacy settings. So it is often the case that people have the default settings on social media. And sometimes those default settings mean that information is more readily accessible to the public than you might think. And so to the extent that you have a client who is a regular user of social media and is publicizing information, depending on the circumstances related to the representation, it actually might be really important that the client change their privacy settings to not be sharing information with people other than those that they've designated as friends.

In 2016, the DC Bar came out with an Ethics Opinion 371. And it stated that because the practice of law involves use or the potential use of social media in many ways, competent representation under rule 1.1 requires that a lawyer understand how social media works and how they can be used to represent a client zealously and diligently. Lawyers must at least consider whether and how social media may benefit or harm client matters in a variety of circumstances and that competent and zealous representation under rules 1.1 and 1.3 may require review of client social media postings relevant to client matters.

So where this comes up is in cases where clients or witnesses have posted information on social media that is germane to a case. So there's a Virginia circuit court opinion that came out in 2011. And it stated that a lawyer has an obligation to conduct a reasonable inquiry into the factual and legal allegations submitted to the court. An uncontroversial opinion that every court, every jurisdiction would follow. You can't file a claim without making a diligent inquiry into whether or not there is merit. You can also not defend a claim based on information that is not the result of a diligent inquiry. What was interesting about the 2011 case is that failure to research a client's claim online, which included looking in any publicly available social media was actually a breach of that duty to conduct a reasonable inquiry. So it's not, you haven't satisfied your duty if you've merely spoken to your client and spoken to potential witnesses. But if your client has a social media presence, you have an obligation to look into that social media and see what is publicly available, because the client or witnesses in the case might have posted things that are relevant to their claims and could impact what your representations are.

The Adams case is actually a really good example of this. So this was a case that came out of the Ninth Circuit in 2013. And the court held that a failure to investigate a social media recantation of a sexual abuse victim was held to be inadequate assistance of counsel. So in that case, a victim who had accused somebody of sexual abuse, in particular, she accused her stepfather of molestation, she had actually posted in an away message that she made up the claims of molestation by her stepfather, because she wanted to move back to California to live with her biological father. The Ninth Circuit held that the defendant had received ineffective assistance of counsel when it was discovered that he failed to investigate the away message once the defendant had brought it to his attention. And so in that case, the defendant actually raised the issue of the away message rather than a statement by the court that the lawyer had an affirmative duty to look at the victim's full social media presence, but I think it's a good warning to lawyers to ask your clients at the outset of a representation if they have a social media presence, if any witnesses in the case have a social media presence, and to see what's publicly available. At the very least if that information is brought to your attention, just like your general duties of competence, you have an obligation to look into it and see whether or not there is merit to the case.

If you gather information based on your client's social media presence, you have to retain records of conversations that relate to the legal advice that you've given to your clients. Just like all communications, even if those communications relate to social media, they continue to be part of the client's file, and the client's file is her property. Every jurisdiction views that the same way. There's some limited exceptions in different jurisdictions based on an ability to have a lean on a client file for unpaid work. But it is a very limited exception. And as the general rule is that all communications between lawyer and client that are contained in writing continue to be the client's file and that the client, upon termination of the representation, or the lawyer upon withdrawal has an obligation to return the full client file.

So what are the limits on producing social media evidence? Do you have to turn over a client's entire social media history? So Largent versus Reed, which is a Pennsylvania case that came out in 2011 is a really good example of this. So in that case, the plaintiff was injured when the motorcycle on which she was a passenger collided with the defendant's van. During her deposition, the plaintiff testified that she had an active Facebook profile. In a motion to compel production, the defendant argued that plaintiff's profile was recently public and that status updates about going to the gym contradicted the plaintiff's severe injury claims. And so what the defendant was arguing is that he had actually viewed the plaintiff's profile and the plaintiff had been posting a bunch of pictures of herself at the gym, which undermined the fact that she was arguing that she had severe injuries as a result of the collision. The court granted the motion, oh, and so in that case, the defendant sought to get the Facebook profile. The plaintiff opposed and said it was not relevant and also private and personal. There was a motion to compel and the court granted the motion and found that the information was relevant and discoverable, and that there was sort of no exception to social media as the plaintiffs were contending that somehow prevented access as part of the discovery process.

Milo's Kitchen actually distinguishes the Reed case. In that case, the plaintiff had posted information about dog food. The claim in the case was that the dog food that had been purchased by a plaintiff was faulty and was not as advertised. In Milo's Kitchen, the defendant sought to get the production of the plaintiff's entire social media account. And what the court said was that in the Largent versus Reed case, the plaintiff in that case hadn't challenged the production of relevant material. She had only challenged the production of the entire account. And so here in Milo's Kitchen, what could be produced was the unredacted file, what could be produced was only the redacted file. So what the defendant would be entitled to is really information that was relevant and germane to the claim that the dog food was faulty and not the entire social media history. And so what both of these cases really establish is that if there is information that is being posted on social media that is relevant to a claim, it will be discoverable just as all information that is relevant and not unduly burdensome, and sort of meets all of the requirements of discovery is discoverable. But in claims where a defendant or a plaintiff is trying to get the other side's production of their entire social media history that has nothing to do with claims in the case, courts are gonna be very hesitant to agree to motions to compel that require the production of that information. Again, in the same way that all discovery fights happen, the same rules apply to social media. It's also worth noting that both Largent versus Reed and Milo's Kitchen were decided before the changes to rule 26 went into effect.

So after the 2016 amendment to rule 26, courts are even more likely to look at proportionality concerns when producing information. And so in Milo's Kitchen, the plaintiff had posted on Facebook and accused actually a different dog manufacturer of making the faulty treats. But the plaintiff took panes to redact all of her personal information that was not relevant to the claims that she had been making against the defendant. Whereas in Largent versus Reed, there was sort of no effort to redact the private information. It was just a blanket refusal to turn over the social media evidence. And I think after the 2016 amendment to the rules and to rule 26 in particular, courts are even more likely to really consider the proportionality concerns in adjudicating a discovery fight and making a determination about whether or not information needs to get produced. It's also worth noting that the Stored Communications Act may actually prevent you from subpoenaing non-public social media directly from the social media provider.

So there's particular rules that govern what social media providers will turn over and under the Stored Communications Act, your likelihood of success if you actually subpoena the provider as opposed to attempting to get the information directly from the party is really not gonna be, it's not gonna be likely that you'll be successful based on the contours of the Stored Communications Act. So one issue that comes up is after you begin investigating a client's social media presence, you're complying with your 1.1 obligations to provide competent representation, you're staying up to date with the benefits and uses of social media, and you come across information that's really unhelpful. And your client has posted on Facebook something that's really detrimental to the claim. Can you tell your client to delete that old social media post? The sure answer is yes, only if you tell them to preserve the posts. And so what is really critical here is that you are not involved in the destruction of evidence or involved in encouraging your client to be destroying any useful evidence.

The Allied Concrete case is actually a really good example of this fact pattern. So in that case, the plaintiff filed a wrong wrongful death action against the employee and his employer after a car accident caused by the employee killed the plaintiff's wife. The defendant employer issued a discovery request, seeking production of parts of the plaintiff's Facebook page. The following day, the plaintiff's attorney instructed a paralegal to contact the plaintiff and told the plaintiff to, quote, clean up his Facebook page, because we don't want any blowups of this stuff at trial. And again, this information was convey, the lawyer told his paralegal to then tell the client to do this, to clean up his social media presence. In response to the paralegal's statements, the plaintiff altered and deleted certain portions of the page, which were excluded from the social media information that ended up being produced to the defendant employer. The defendants were actually found liable for wrongful death and they moved for a retrial based in part on the attorney's misconduct in informing his paralegal to tell the client to clean up the social media presence. The retrial was denied because the defendant employer had actually received all the spoliated social media evidence prior to the trial. And all of that evidence ended up being produced and presented to the jury. And there are multiple jury instructions that reference the attorney misconduct. But even though that was the case, the attorney conduct was deemed to be patently unethical and sanctions were issued in against him in excess of $500,000 to cover the defendant employer's attorney's fees and costs.

So the takeaway here is that if there's reasonable expectation of future litigation, you absolutely have to comply with Federal Rule of Civil Procedure 37 E, which has prohibitions on spoliation that everybody is familiar with. What counts as a reasonable expectation of future litigation is pretty broad and you should absolutely err on the side of caution with preservation obligations. The Fourth Circuit actually held that bad faith is not an element of spoliation and that negligent deletion of information isn't self-sufficient. So the standard is actually lower and it only... To establish that there has been spoliation, all you need to do is show that there is actually a negligent deletion of information.

Under rule 3.4 A, a lawyer is not allowed to obstruct another party's access to evidence or to alter, destroy or conceal a document or other material that has potentially evidentiary value for the purpose of obstructing a party's access to that evidence. And a lawyer cannot counsel or assist another person in doing so. So just the way that the lawyer have the information conveyed through his paralegal is no comfort to him because you can't counsel a person to do it and you can't counsel your paralegal to tell your client to do it. And just like rule 37 E prohibits spoliation, the model rule themselves have a requirement that a lawyer is just not allowed to in any way obstruct another party's access to evidence or alter or destroy that evidence. And so that applies equally to social media evidence as it does to anything else. And so if there is a post that is relevant to a claim, you can't simply tell the client to delete the post without preserving it. And of course you can tell your client to delete a post, because it's not helpful for them to have that post up and available to the public, but you need to make sure that that post is preserved so that it can be produced to discovery.

In Allied Concrete, the posts were actually of the plaintiff who was wearing a t-shirt that said I Heart Hot Moms. And so it wasn't actually directly on point, but it was being used, the concern that the plaintiff's attorney had was that there were claims that were being made of emotional distress as a result of the plaintiff's wife being killed in the car accident. And so a plaintiff wearing a shirt like that in a public setting at, I think it was a series of barbecues, tended to, in the plaintiff's lawyer's mind, undermine the case of the claim that they were making about emotional distress. And so I think that is a useful thing to keep in mind that what counts as relevant information is really broad. And it's not merely like the prior example we talked about about a recantation of an allegation. It really applies very broadly to conduct having anything to do with the potential of future litigation. There are questions about the sufficiency of preservation. What does it mean to actually preserve information? And the takeaway here is that preserving information means you preserve the metadata. So there was actually a Kansas District Court opinion that explicitly held that simply taking screenshots of social media posts or other information is insufficient. You need the metadata. And so that might require additional expertise. Not every lawyer knows how to capture metadata. And so you might need to consult with experts who can help to make sure that you're preserving all of the relevant information of a post and not simply a screenshot.

The DC Bar Ethics Opinion 371 that we talked about earlier said, in relation to the remote rule of social media posts that DC in particular advises lawyers that they may need to include social media in advice and instructions to clients about litigation holds, document preservation and document collection. So at the outset of a case, lawyers will inform their clients not to destroy, alter any potential relevant information that can be produced in discovery, and part and parcel of your duties of competent representation, and staying abreast of changes in social media and the use of social media, is that you inform your clients that social media falls under that category of the need to preserve documents.

West Virginia Case in 2015 said that attorneys may not instruct their clients to destroy, alter or conceal any relevant content on their social media at pages. And that although attorneys may instruct their clients to delete information from a client's social media pages that may be damaging to the clients, provided that attorney's conduct does not constitute spoliation, or is otherwise illegal, attorneys must take steps to reserve the information in the event that it is deemed discoverable. And every opinion that I'm aware of has come out consistently on this issue as it relates to spoliation and social media. So it's something that is important to keep in mind. So let's talk about contact with people who are represented and the rules that govern contact with people who are represented.

In particular, how those rules relate to social media use. So one question that comes up is can you friend an opposing party on Facebook or LinkedIn, or any other social media? And the answer is that it depends on whether or not they're represented by counsel. So if they are represented, then you cannot friend them on social media. If they are unrepresented, then you are free to friend them on social media. The distinction is really about contact with persons who are represented and to illustrate that social media contact is equally viewed as a communication with a person who is represented by counsel. So model rule 4.2 states that in representing a client, a lawyer shall not communicate about the subject of the representation with a person that the lawyer knows to be represented by another lawyer in the matter unless the lawyer has the consent of the other lawyer or is authorized to do so by law or court order. And every jurisdiction has a rule that prohibits contact with a person that a lawyer knows to be represented, absent consent by counsel for that person or an authorization from a court to do it.

Comment three highlights a fact that is not always obvious to lawyers, which is that the prohibition on contact with represented person's absent consent applies even if the represented person is the one to initiate the communication, or even if they say to you it's fine. I'm represented by council, but I'm happy to speak to you. The moment that you learn that a person is represented by council, you must immediately terminate the communication. There is, you have to hang up the phone, you have to cease communication altogether, because you need to be able to seek consent from that person's lawyer or authorization from the court in order to continue on with the communication. So what about friending a witness on social media? So not an opposing party. So if the witness is represented by counsel and you know that person is represented by counsel, then no, model rule 4.2 applies. That's a contact with a represented party that you are only able to engage in with the consent of the lawyer or a court authorization. If the witness is actually not represented by council, and you know that they are not represented by council, you can, but different jurisdictions impose different requirements. And so it's really important to see what requirements are imposed in your jurisdiction.

So in New York, you can friend a witness on Facebook for example if you know that witness is not represented by counsel, but only as so long as you don't use any form of deception. And so deception often involves pretending that you're disinterested in the case or hiding who you are. So having somebody who works for your law firm, for example, who isn't a lawyer, be the one to issue the friend request so that you are not highlighting your role in the case. In New Hampshire, you can friend a unrepresented witness, but the lawyer has to inform the witness of the lawyer's involvement in the disputed or litigated matter. And the disclosure of the lawyer by name as a lawyer is imperative and the identification of a client and the matter in the litigation. So when you friend an unrepresented witness in New Hampshire, you have to say I am a lawyer. I am representing so-and-so in this case. My name is so-and-so. And I have an active involvement in this case. And so more so than even New York, it's not about even not engaging a deception, but there's an affirmative obligation to reveal to that witness who you are and your role in the case.

In Massachusetts, you can friend an unrepresented witness, and all you have to do is disclose that you are a lawyer and that you are affiliated in the case because you represent so-and-so, and your purpose for the request is to learn more about the case. So this illustrates that really it's a jurisdictional issue. And so before you friend a witness on Facebook or any other social media in an attempt to gain information about your case, you need to make sure that you're complying with the rules in your jurisdictions. The next topic we'll talk about are the ethical restrictions that apply to attorneys' use of social media to research potential or sitting jurors. So this is very common as trial is starting and voir dire is happening, lawyers or paralegals or legal assistance will often be searching everything that they can find on potential jurors to advise on whether or not the attorneys in the case should make a motion to strike a juror. So the rules that are governed are 3.5 A, B, C, and also 8.4 C.

So model rule 3.5 A says that a lawyer shall not seek to influence a judge, juror, prospective juror, or other official by means that are prohibited by law. Rule 3.5 B states that a lawyer shall not communicate ex parte with such a person during the proceeding unless authorized to do so by a court order. An ex parte communications have actually resulted in disbarment. So there is in South Carolina v. Henry Hallman where the court held that communicating with a member of the jury selected for trial was a serious crime and actually warranted disbarment. Doing so via social media, and so in that case was in 1982 before social media, and that was an in-person interaction, but doing so via social media is equally impermissible. Model rule 3.5 C states that a lawyer shall not communicate with a juror or prospective juror after discharge of the jury if three things. The communication is prohibited by law or court order. So if the court instructs all the parties at the conclusion of a case, or at the outset of a case, you may not speak to jurors, then you have to comply with that court order. The juror has made known to the lawyer a desire not to communicate.

So if there's been no court order in your case, but the juror has said do not speak to me. I'm not interested in speaking to you, you have to comply with that. Or if the communication involves a misrepresentation, coercion, duress, or harassment. So those are the rules that govern sort of the communications with a juror by a lawyer or people for whom the lawyer, people who work for the lawyer. But what about sort of just a passive review of a juror or potential juror's social media? So not friending that juror on Facebook, not reaching out to them in any way, but just seeing what's available. So the answer to that is yes. And in 2014, the ABA actually came out with an opinion where they explicitly addressed this. And they said, unless limited by law or court order, a lawyer can review a juror or potential juror's internet presence. And that can include postings by the juror or potential juror in advance of trial.

The ABA actually put in a bunch of restrictions about the investigative uses of social media with respect to researching jurors. And what the ABA said was that a lawyer is not allowed to send an access request to a juror's electronic social media. And so an access request is defined as a communication to a juror that requests non-public information and is therefore the type of ex parte communication that's generally prohibited by the rules, in particular by rule 3.5. And so what the... So an access request is a friend request, and the language is sort of broad enough to cover a variety of social media platforms and the way in which you can engage with people on social media. But what the ABA said was sending an access request would be akin to driving down the juror's street, stopping the car, getting out, asking the juror for permission to look inside the juror's house, because the lawyer cannot see enough when just driving past. And so while a lawyer would be free in this sort of hypothetical to simply drive by the juror's house that's on a public street, that is the researching the publicly available social media presence of a juror. An access request or a friend request is really going one step further and trying to get information that is not public, that really constitutes ex parte communications between a lawyer and a juror.

And so to get ahead of this issue, what the ABA has said is that judges should consider advising jurors during the orientation process that their backgrounds will of course be of interest to the litigants and the lawyers, and that they may investigate their backgrounds, including reviewing their information on their websites and publicly available social media presences. And so to the extent that you as a juror do not want that information to be publicly available, you should consider changing your privacy settings, such that members of the public can't access that information. And that's an instruction that we see pretty routinely now to alert jurors that the litigants in the case are gonna wanna know as much as they can about you. And so you should consider what is publicly available and to the extent you wanna limit what's publicly available, you should do so right away. So then the question comes up, what about if the juror can see that you looked at their social media and does that constitute an ex parte communication? So this is actually a feature of LinkedIn, depending on your settings, if your settings are such that you're viewing other people's profiles in a public way as opposed to a private setting, it can be the case that if other people are also viewing your profile under that same setting, that they can see that you've looked at their profile.

And so is simply knowing is if a juror knows that a lawyer has looked at their social media presence, does that constitute an ex parte communication? The ABA says it doesn't constitute an ex parte communication, but New York says that it does. And so this is a really key area where it's important to look at your jurisdiction before you look up a juror's social media presence. Because again on LinkedIn, that's just an automatic feature depending on your settings. So in the 2014 ABA Opinion, the ABA said that in a juror simply getting a notification that you looked at their profile, that's not a lawyer communicating with the juror, because the social media service is basically communicating with the juror that based on a technical feature of the social media service that somebody has looked at their profile. And so what the ABA said is, this circumstance, a juror simply being notified that a lawyer has looked at their profile is akin to a neighbor's recognizing a lawyer's car driving down the juror's street and telling the juror, I saw a lawyer. He was driving down your street, right? That's not impermissible.

New York actually came out the opposite way and said that a network generated notice to a juror that the lawyer had reviewed the juror's social media presence was a prohibited communication from the lawyer to a juror because it entailed the process of bringing an idea, information or knowledge to another's perception, including the fact that that person had been researched. And so if the attorney was aware that the juror would be notified, that would be a violation of the rules. And so if you knew that your LinkedIn setting was such that every time you looked at somebody's profile, that person would be notified that you looked at their profile. In other words, you have a publicly available LinkedIn presence in terms of your search settings, that if you knew that, and you did it anyway, and you researched the juror, and the juror would be notified because of your settings, that it would be a violation of the rules. And so it's important to make sure that you verify what your jurisdiction's rules are before researching a juror.

So what about asking other people to engage in certain conduct on your behalf with relation to social media and investigating claims and witnesses? Could you hire a private investigator for example? So a hypo that we have here is can a lawyer hire a private investigator to impersonate someone to friend a juror or a witness? And the answer is no. Under model rule 8.4 C, it's a professional misconduct for a lawyer to engage in conduct that involves dishonesty, fraud, deceit, or misrepresentation. And under rule 5.3, again, a rule that is in every jurisdiction, lawyers are responsible for non-lawyer assistance. And so a lawyer can be responsible for the ethical violations of both other attorneys and non-lawyer agents such as paralegals and investigators that result from social media communication. So if you instruct somebody to impersonate somebody to friend a juror on Facebook, for example, that is a violation of the rules in the same way it would be a violation of the rules if you yourself did it. But there's also a 5.3 broader obligation to oversee the conduct of people who work for you. And in particular, non-lawyers. So non-lawyers are of course not bound by the rules of professional conduct, 'cause they're not lawyers, but as a lawyer who employs non-lawyers, you have a obligation to supervise their work and to ensure that it is at all times compliant with the rule.

So under the ABA version of 5.3, a lawyer is responsible for the conduct of anybody that the lawyer supervises that would be a violation of the rules of professional conduct if the lawyer engaged in the conduct, if one, the lawyer orders, or with knowledge of the specific conduct, ratifies the conduct. Or if the lawyer's a partner or has managerial authority in the law firm to which the person is employed or has other direct supervisory authority over the person and knows of the conduct at the time when its consequences can be avoided or mitigated, but fails to take any remedial action. So it's important to consider who you supervise and so separated in part from simply ratifying the conduct or ordering the conduct, you have an active duty to effectively manage and supervise those that work for you and to ensure that they are being compliant with the rules. And so it is advisable that if you are at the outset of a case and you have have non-lawyer staff that is assisting you, to make sure that they are aware of the rules of professional contact. And in particular, if you're asking them to do things related to pending litigation or future litigation, including researching people, and doing online research is a very typical thing that paralegals and legal assistants can be asked to do, that they really know what the restrictions are based on the rules of professional conduct.

So what do you do if you find out in researching jurors and researching publicly available information that a juror's actually posting about your case on social media? The answer is it really depends. So in the ABA Opinion on this, in 2014, the ABA held that while any internet postings about a case by a juror during a trial may violate court instructions, the obligation of a lawyer to take action depends on the lawyer's assessment of those postings in light of court instructions and the elements of the crime of contempt or other applicable criminal statutes. So for example, innocuous postings about juror service, such as the quality of the food served at lunch. I've been sitting here all day and I'm tired, or they got us the same sandwiches for the fourth day in a row, that can be contrary to judicial instructions, right? The judge may have said at the outside of the case, you're not supposed to post about anything related to your jury service, but that conduct could fall short of the kind of conduct that would warrant the extreme response of finding a juror in criminal contempt. And a lawyer's affirmative duty to act is really triggered only when the juror's known conduct is criminal or fraudulent, including conduct that is criminally contemptuous of a court instruction. So the bottom line here is that it really depends on what the juror is posting about and what the court has said. So of course, if the juror is posting, I think that the plaintiff is guilty. I think that there are monetary damages owed. Then completely inappropriate and the court needs to be alerted. But if the juror is posting, we got the same sandwiches for fourth day in a row, then it really depends on what the court has instructed related to what the jurors are allowed to be revealing publicly about their jury service.

So what about the instance in which you learn information about a witness based on publicly available social media postings? Can you impeach them with what you've learned? And the answer here is that yes, it's actually one of the principle beneficial uses of social media at trial is really to be able to impeach a witness. There was a 2007 case in which an Arizona defense lawyer represented a client who was charged with assault. And the lawyer researched the Myspace page of one of the state's witnesses and actually found that there was a video that showed that the witness, and not his client was the one starting the fight. The lawyer sought to admit the video into evidence. The court admitted it into evidence. And the defendant was actually acquitted. So it's the perfect example of exercising your duty of competence to research your case and your potential defenses and then using what you learn to impeach somebody and to effectively and zealously advocate on behalf of your client.

It's also really important to consider what authentication might be required if you want to use social media posts for impeachment purposes. So there was actually a California case in which a judge held that the prosecution couldn't use a photo that was downloaded from Myspace and it was a police photo that was downloaded from Myspace, because the police couldn't authenticate the document. And so what the court held was that either the party wishing to introduce the police photo needed testimony from someone who could say it accurately depicted what it purported to show, or they needed a photographic expert to say that the photo wasn't a composite. And so simply downloading a police photo from Myspace and trying to use it at trial was insufficient. There there were authentication obligations. And I think the importance of that particular issue is gonna rise over time with the advent of artificial intelligence and deep fakes. And so if you've seen online, deep fakes can be sort of shockingly accurate seeming. And so the idea that lawyers will need to be able to authenticate a document, have a person either testify that this is a photo that is actually showing what it purports to show as opposed to an artificially created photo or a deep fake, or having a photographic expert, be able to testify that the photo is not in fact a deep fake.

You can also use social media to show that the opposing counsel and not just the client is not being truthful. So rather than just sort of impeaching a witness, you can consider the use of social media in revealing to the court that opposing counsel is not being truthful. So there was a 2016 case in New Jersey in which a magistrate judge actually sanctioned a lawyer and imposed monetary damages of $10,000, because the lawyer had said that she had a family emergency which is why she had missed a filing deadline. And opposing counsel actually found an Instagram post of that lawyer on her vacation and revealed that information to the judge and said no contrary to her saying she missed a filing deadline, because she had an emergency, she was actually on vacation. So I think consider not just the social media uses for you of researching your claims and witnesses, but also consider opposing counsel social media use and your own social media use and how important it is to make sure that every representation you give to a court is always truthful. But also if you want to oppose a motion for an extension, and that motion for an extension is based on a claim by opposing counsel, there may be opportunities to see if that's actually a truthful representation that's made.

So let's talk a little bit about friending judges on Facebook. So what about an instance in which you are friends with a judge in real life and you wish to be social media friends with that judge? So the answer is that you can friend a judge on Facebook or other social media, connect with them, send them an access request, as the ABA would say, so long as your purpose for doing so is not to influence the judge in her official duties. So rule 3.5 explicitly prohibits lawyers from seeking to influence judges by means that are prohibited by law and prohibits ex parte communications with judges during a proceeding unless they're authorized to do so by law.

In 2018, the Florida Supreme Court actually denied an appeal that argued that the trial judge should have been disqualified, because he was Facebook friends with one of the lawyers and the court said a, quote, real friend is a person attached to another by feelings of affection or esteem. A Facebook friendship is a digital connection and does not signal the existence of affection. So clearly Florida Supreme Court views Facebook friendships differently than real-life friendships. And the idea was that there didn't need to be any disqualification in the case just because a lawyer was Facebook friends with a judge, because there was no evidence that there was any ex parte communications that were seeking to influence the judge.

Coming out the other way, in 2020, the Wisconsin Court of Appeals held that a circuit judge's undisclosed Facebook friendship with a current litigant render the judge biased and actually remanded the case for proceedings before a different judge. In ABA Opinion 462, what the ABA says is that context is really key here, that it depends on the relationship between the judge and the lawyer and on the appearance of the relationship in order to make a determination about whether or not the judge in fact needs to recuse herself.

So with that, I will end today's presentation. I would be happy to answer any questions that arise. My contact information is included in the slide deck. And thank you very much for your time.


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