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Legal Marketing Social Media


Abuses John J. Cord


T


he brave new world of social media is terrifying to some lawyers, in no small part because the courts are just now beginning to provide


direction on the right (and wrong) way of doing things. However, the rewards are overshadowed by the risks. With a little bit of common sense and some caution, we can take advantage of all that social media has to offer.


“Friending” Parties & Witnesses


Witnesses and Opposing Parties It should be standard practice for lawyers to search


social networking sites used by parties, witnesses and jurors. It can occasionally help with case investigation or to find valuable impeachment evidence. However, not all social media is created equally. Much of it may be public and available to any viewers of the world wide web. Users may, however, avail themselves of various privacy settings which restrict viewers who are outside a pre-defined group of contacts. A lawyer or his agent is almost certainly precluded from using deception to gain access to private material. The Philadelphia Bar Association’s Professional


Guidance Committee issued a widely cited 2009 opinion stating that it is improper for a lawyer to ask someone to “friend” an adverse witness in order to obtain personal information about that witness.1 In the hypothetical situation presented to the committee, the lawyer believed that the witness would allow access to his site, presumably because the witness appeared to be an indiscriminate friend-collector.2 The lawyer’s agent would only state truthful information (including his or her name), but would not disclose his or her purpose for requesting access to the witnesses’ site. The committee held that this tactic was likely violative of the Pennsylvania Rules of Professional


Conduct,3 including: (1) 5.3: Responsibilities Regarding 1 Philadelphia Bar Association Professional Guidance Committee, Opinion 2009-02 (Mar. 2009) <http://www.philadelphiabar.org/WebObjects/PBAReadOnly.woa/Contents/ WebServerResources/CMSResources/Opinion_2009-2.pdf>.


2 The number and identity of friends a person has on Facebook is usually publicly available. 3 The relevant portions of the Pennsylvania Rules of Professional Conduct are identical to the Maryland Lawyers’ Rules of Professional Conduct.


Nonlawyer Assistants (a lawyer cannot order or ratify conduct of a non-lawyer that would violate the Rules if the lawyer so acted); 8.4: Misconduct (a lawyer cannot engage in conduct involving dishonesty, fraud, deceit or misrepresentation); and 4.1: Truthfulness in Statements to Others (a lawyer cannot make false statements of material fact or law to a third person in the course of representing a client). The conduct would be deceptive because the person requesting friend access would “omit a highly material fact,” the fact that the witnesses’ posted information would be used in the litigation, and that the witness might not otherwise allow access if he knew of the true intentions of the person requesting access. The same result would likely be reached in Maryland


and most other states.4 However, lawyers have other options to acquire this information. The lawyer may advise the witness of their representation of the client and request access to their social networking site, though admittedly this is not likely to be successful. The lawyer may contact others who are “friends” with the witness in the hopes of finding someone who is merely an acquaintance and who would allow access for the purposes of the litigation. In essence, this would be arguably no different from interviewing a witness who has information about a defendant.


4 Other ethics opinions include: New Hampshire Bar Association, Ethics Committee Advisory Opinion #2012-13/05: Social Media Contact with Witnesses in the Course of Litigation (June, 2013) < http://www.nhbar.org/legal-links/Ethics-Opinion-2012-13_05.asp>; San Diego County Bar Association Legal Ethics Opinion 2011-2 (May 2011) < https://www.sdcba.org/index.cfm?pg= LEC2011-2>; Oregon State Bar Formal Opinion No. 2013-189: Accessing Information about Third Parties Through a Social Networking Website (Feb. 2013) < http://www.osbar.org/_docs/ ethics/2013-189.pdf>. For conflicting authority, see Committee on Professional Ethics for the Bar Association of New York City, NY City Bar, Ethic Op. 2010-2.


Trial Reporter / Winter 2014 41


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