It is becoming increasingly confusing what lawyers, judges and courthouse employees can post on social media sites. For instance, can a judge “friend” someone who is an attorney on Facebook and then have the attorney appear before them in court?
Attorneys who post on sites like Facebook also have to worry about violating attorney-client confidentiality, disciplinary action, losing jobs, or engaging in the unauthorized or inadvertent practice of law, according to an article in the Touro Law Review. In addition, attorneys could “face sanctions for revealing misconduct or disparaging judges on social media sites,” the article adds.
In a recent article, KTVU reported online that courts have made rules for jurors, lawyers and judges when it comes to online posting during jury trials. Mistrials are definitely a risk if violations occur. "There have been mistrials created by jurors using social media," Merri Baldwin, a member of the ethics committee for the State Bar of California, told KTVU.
In fact, Baldwin, who is chair of the Rogers Joseph O'Donnell’s Attorney Liability and Conduct Practice Group, said lawyers and judges also were disciplined for improper use of social media. "There was a famous case involving a judge in North Carolina who actually friended one of the lawyers in the case during the trial," Baldwin recalled. The case involved a child-custody trial and the judge was B. Carlton Terry Jr., who later was reprimanded by the state's Judicial Standards Commission.
To help clarify matters, the American Bar Association's ethics committee recently issued some related guidelines that let a lawyer “review a juror's Internet presence.” But a lawyer cannot "send an access request to a juror's social media," the guidelines said. That means no friend requests on Facebook, and no connections on LinkedIn for a juror or potential juror, the article said.
"Everybody involved in the judicial process is concerned about social media and what it's doing to blur the lines of communication and everyone is searching for clearer and clearer rules that will help guide everybody," Baldwin told KTVU.
In addition, on March 18 the Commercial and Federal Litigation Section of the New York State Bar Association developed Social Media Ethics Guidelines to assist lawyers in understanding ethics and social media. These relate to lawyer advertising and other topics. For instance, as reported by InsideCounsel, “Lawyers must monitor comments on their blogs and social media sites for violations of rules on lawyer advertising.”
The article also advises lawyers on providing advice, which in turn could form an “attorney-client relationship,” via social media postings.
There also could be an issue if an attorney is not admitted to practice in one state, and offers legal advice to someone in the state via social media.
In an article published a few years ago, two attorneys working for Gray Plant Mooty, Michael C. Flom and Abigail S. Crouse, said they found based on Minnesota law, “The risk that an attorney-client relationship will be formed if an attorney simply ‘friends’ or ‘connects with’ an individual on Facebook or LinkedIn should be fairly low because, in most cases, there has been no legal advice provided or sought in connection with such a request. However, if the attorney answers an individual’s specific legal question while participating on a networking site, a message board or a blog, the likelihood that an attorney-client relationship will be implied increases.” If needed, attorneys can say on the website that no attorney-client relationship has been formed.
In addition, confidentiality is another key issue with social media. In Illinois, the Attorney Registration and Disciplinary Commission filed a complaint against an assistant public defender who said something about her clients which made it possible to identify the clients.
Given the growing presence of social media, there will be more guidelines on the topic. In the meantime, lawyers are advised to be cautious.