On February 4, 2004, Mark Zuckerberg and his Harvard University roommates launched the social media website, Facebook. Although Facebook was initially limited to serving college students, the website now has an incredible variety of users, some of whom are professionals. Unlike most other occupations, the legal field is subject to certain ethical guidelines and professional standards, such as those enumerated in the ABA Model Rules of Professional Conduct (the “Model Rules”), which can present specialized concerns for attorneys who interact through social media.
Consequently, even with this coming February marking the commencement of Facebook’s second decade of existence, there are still things that you, as an attorney, can do on the site that would inadvertently cause a breach of your jurisdiction’s rules of professional responsibility.
Accordingly, the following seeks to highlight a few of the not-so-obvious issues that attorneys should consider if proceeding to utilize social media sites such as Facebook.
1. Be prudent about establishing and updating your privacy settings.
Like most other social networking sites, Facebook attempts to ensure the privacy of its users. Nevertheless, problems often occur when users do not select the appropriate privacy settings. For example, did you know that there is a feature on Facebook that, if not disabled, allows some search engines the ability to link to your Facebook timeline, causing a generic search of your name to produce your Facebook page as a result?
Fortunately, altering your Facebook privacy settings to prevent this intrusion from occurring is easy to accomplish if you know where to look. There is a privacy shortcut pull-down menu that appears as a “lock” icon on the upper right side of the home page. At the bottom of the pull-down menu, there is an option entitled “See More Settings.” Selecting this option opens a page with all of Facebook’s “Privacy Settings and Tools.” It is a good idea first, to not post anything that you wouldn’t want the world to see, but next, to go through each privacy setting and make selections in accordance with your professional goals and responsibilities.
In addition, Facebook undergoes constant content and policy updates to improve its usability. Users are notified of these updates, but may misread or disregard announcements. However, these updates can have the potential of changing who can view your Facebook content so it’s important to pay careful attention to these notifications. Whether you have disregarded previous notifications or simply have not checked on your privacy options in some time, it may make sense to take advantage of the “Privacy Checkup” option. The social media giant rolled out the “Privacy Checkup” feature in September 2014, as a step-by-step guide to your settings in order to help individuals review and control who they share their information with, and is located in the privacy shortcut pull-down menu.
2. Be cautious when attempting to gain evidence using a social networking site.
By now, it is no secret that Facebook can provide attorneys with an arsenal of information that can potentially be used as evidence in litigation. Some users do not keep their information private on Facebook, which means that it may be viewable by the public, and may arguably be fair game in litigation.
For those who do try to protect their information, their profiles are still viewable by anyone from whom the user receives and accepts a friend request. Because of the ease of access to this information via a friend request, there may be a temptation or question as to whether it is acceptable for an attorney to deceptively “friend” another party in order to gain access to their information. The New York City Bar Association Ethics Committee addressed this question, and the conclusion was that a “lawyer may not use deception to access information from a social networking webpage. Rather a lawyer should rely on the informal and formal discovery procedures sanctioned by the ethical rules and case law to obtain relevant evidence.”1
3. Be aware that your use of social media may create attorney-client relationships.
According to the American Bar Association Formal Opinion 10-457, websites may give rise to inadvertent attorney-client relationships and trigger the requisite obligations of the Model Rules.2Thus, an attorney-client relationship may be formed through electronic communications, including those that take place via social media.3 In order to avoid forming these unintended attorney-client relationships, it is advisable to keep this consideration in mind during your online communications.
4. Social media posts do not adhere to jurisdiction limits.
Attorneys are not permitted to practice law in jurisdictions where they are not admitted to practice; however, social media posts are not limited to the states of your bar admission. So, if posts or communications via social media are deemed attorney-client communications, then you must be cognizant that you are not communicating with a person located outside your authorized jurisdiction to practice law. In order to avoid potential pitfalls, “It is prudent, therefore, for lawyers to avoid online activities that could be construed as the unauthorized practice of law in any jurisdictions where the lawyer is not admitted to practice.”4
As a final note, although the above considerations are important, it is critical to realize that these are only but a few of the potential ethical concerns for attorneys that exist in today’s social media world. While the focus here was on Facebook, the aforementioned considerations can easily be applied to other social media sites, such as LinkedIn, Twitter, Instagram, and Google+. Of course, as is always the case, you should also carefully review the rules and opinions of your practice jurisdiction(s) to ensure your compliance.
1 Ass’n of the Bar of the City of N.Y. Comm. on Prof’l & Judicial Ethics, Formal Op. 2012-2 (2012).
2 American Bar Association Formal Opinion 10-457 (2010).
3 “10 Tips for Avoiding Ethical Lapses When Using Social Media.” http://www.americanbar.org/publications/blt/2014/01/03_harvey.html. Retrieved January 3, 2014.
4 Id.
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