Legal Ethics and Social Networks Prof. David W. Opderbeck Seton Hall University Law School © 2011 David W. Opderbeck Licensed Under Creative Commons Attribution / Share-Alike

What are Social Networks? Relational: users connect to each others’ “profiles” Information: status updates, pictures, video, links Communication: asynchronous and synchronous Network Effects: more users creates value for each user Supported by ads, data mining

Lawyers’ Uses of Social Networks Personal: keep in touch with family, friends, acquaintances Business: ▫Network with colleagues – ideas, referrals ▫General information for clients and potential clients – much like a firm web site ▫Specific contacts with clients and potential clients ▫Information on adversaries, judges, parties, witnesses

Ethics Rules / Guidelines Very few specific guidances ▫ABA Formal Opinion (August 5, 2010): Lawyer Websites ▫ABA Working Group on Internet Based Client Development Tools (incl. social networks): comments solicited September 20, Considering specific rules or guidelines ▫Local examples:  Philadelphia Bar Association Professional Guidance Committee Opinion  Florida Judicial Ethics Advisory Comm. Opinion No

ABA Formal Opinion Dated August 5, 2010: fifteen years after the Internet became public – an eternity in Internet time! Model Rules 1.6, 1.9, 7.1, 8.4(c) and 4.1(a) apply – ▫generally prohibit false or misleading statements ▫Be careful to offer only legal information, not specific legal advice  A dividing line: are you answering a particular person’s fact- specific question?  Bilateral communication – chat, , etc. – can constitution an invitation to form a lawyer-client relationship – triggering duties with respect to conflicts and confidentiality ▫No disclosure of client confidential information or client identifying information without informed consent ▫Disclaimers will only be effective if accessible, understandable and not misleading and the lawyer does not act in a contrary fashion

ABA Working Group re: Social Media Request for comments published Sept. 20, 2010; comments requested by Dec. 15, 2010; many comments received Most public comments argued that the ABA should not adopt any model rules or guidelines. Many comments from vendors of social media- related services.

ABA Working Group re: Social Networks Issues on which the ABA might issue guidance: ▫What is the line between personal and professional? ▫Avoiding creation of inadvertent lawyer-client relationships ▫Can lawyers and judges “friend” each other ▫Can information on adversaries / parties / witnesses be gathered through social networks  Can this involve pretexting?

ABA Working Group re: Blogging and Discussion Forums Issues on which the ABA might issue guidance: ▫Are blogs subject to the same ethical considerations as other lawyer advertising  Blogs connected to law firm websites  Blogs run personally by individual lawyers  Group subject matter blogs  Commenting on blogs run by others

Philadelphia Bar Opinion Issue: friending a witness through a third party (e.g. an investigator) whose name the witness will not recognize to gain access to information on the witness’ Myspace and Facebook pages

Philadelphia Bar Opinion Opinion: ▫the proposed conduct would be deceptive because it omits the material fact that the third party is seeking access only to provide information to the lawyer ▫“Deception is deception, regardless of the victim’s wariness in her interactions on the internet and susceptibility to being deceived.” ▫Not analogous to videotaping people in public because in that case not prying into private rooms ▫Notes disputes over uses of pretexting in some cases, including IP cases  Some states have amended ethics rules to allow pretexting if the lawyer reasonably believes unlawful activity has taken place, is taking place, or will take place in the near future (Oregon)

Florida Ethics Advisory Comm. Opinion: Judges Friending Lawyers Issue 1: “whether a judge may post comments and other material on the judge’s page on a social networking site, if the publication of such material does not otherwise violate the Code of Judicial Conduct” Answer: Yes. This relates simply to the manner of publication. Only the content of publication is regulated by the judicial ethics rules.

Florida Ethics Advisory Comm. Opinion: Judges Friending Lawyers Issue 2: “Whether a judge may add lawyers who may appear before the judge as ‘friends’ on a social networking site, and permit such lawyers to add the judge as their ‘friend’” Answer: No. May convey the impression that the “friend” is in a special position to influence the judge and/or that the judge may not act impartially