When I was recruited to write an article on social networking and the law, my first thought was, “what’s on my Facebook page, and is there anything I wouldn’t want any other attorney in Clark County to read?” Yes, I admit it, I – along with about 400 million other people in the world – actively use the Facebook.com website each month. More than half of us log onto Facebook on any given day. We post more than three billion photos each month and share more than five billion pieces of content (e.g., web links, news stories, blog posts, photos, and status updates). Facebook is, well, the face of an exploding genre of internet websites that facilitate social networking. Other behemoths in the genre include Myspace.com (still one of the top ten websites in the U.S.), Twitter.com (a website with over 75 million users that facilitates the posting of 140 character micro-blogs), and LinkedIn.com (a website with over 60 million users aimed at facilitating social networking between professionals).
The attraction of social networking websites is their ability to allow people to not only connect with their current “real life” friends, but also form extended, global networks of digital friendships. It is estimated that social networking accounts for more than ten percent of all time spent online. In December 2009, one of every four website page views was at one of the top social networking websites. While estimates vary widely, surveys indicate that around two-thirds of Facebook users alone access the site while at work.
What is social networking?
The term “social network” simply refers to a group of people who share common interests and participate in common activities, (e.g., family, friends, co-workers, neighbors, etc.) Social networking websites offer people a way to recreate and enhance their existing social networks by facilitating the ability to contact other people around the world that share common interests, characteristics, professions and friends. All social networking websites work in essentially the same way, with a user creating a profile with information about him or her, then creating a network by connecting that profile to other profiles through “friend requests.” The overarching feature of a digital social network is the ability to instantaneously transmit information to one’s entire social network. For example, while writing this article, I posted a status update on Facebook that said “writing an article discussing social networking and the law for the Communique.” All of my Facebook friends instantaneously received that message on their Facebook page, and some of my friends, within minutes, even responded to my post with web links and suggestions for content to include in the article. I also have the ability to post photographs, videos, and links to other web content that I find interesting and want to share with my Facebook friends. It also allows me to connect with my close friends and family, as well as high school and college friends who I probably wouldn’t have been able to easily keep up with otherwise.
It is a safe assumption that social networking websites are here to stay, and attorneys are no less likely to be engaging in online social networking than any other particular profession. Even if you never set up a profile or otherwise participate in online social networking, I can say with virtual certainty that someone closely associated with your law practice either has or will. Even if your firm bans the use of social networking websites from firm computers, there is no question that someone associated with your law practice will use such websites while not at work or from their mobile phone. And an ethical violation that occurs through a social networking website from a home computer is no less damaging than one that occurs via a firm-owned computer. Because of this, it is imperative that you, and those associated with your legal practice, remain cognizant of the fact that the Nevada Rules of Professional Conduct apply with as much force to a Facebook or Twitter post as they do to a conversation in a public elevator.
It’s Not a Feeling…Somebody’s Watching You
The characteristics of social networking websites that pose the biggest threat to an attorney’s ethical duties is their public nature and the fact that all information posted on a social networking website is public and open to anyone with an internet connection. Attorneys must take great care when posting information to avoid violating the duty of confidentiality or waving attorney-client privilege.
The duty of confidentiality is set forth in Nevada Rule of Professional Conduct 1.6(a) and provides that that a lawyer shall not reveal information relating to representation of a client unless the client gives informed consent. The Rule is extremely broad and applies to all information received from the client, even if the information could be obtained from a public source. (See Lawyer Disciplinary Bd. v. McGraw, 461 S.E.2d 850 (W. Va. 1995). The attorney client privilege, on the other hand, arises from statutory provisions, and protects communications, intended to remain confidential, made between a client and attorney for the purpose of facilitating legal services to the client. (NRS 49.055 and NRS 49.095.) Although the attorney-client privilege is more an evidentiary rule than an ethical rule, disclosure of privileged information, by definition, constitutes a breach of the duty of confidentiality.
It should be obvious to all attorneys that posting a client’s litigation strategy as a Facebook status update, or tweeting word-for-word communications with a client, are going to be problematic. If you think these are ludicrous examples, see the August 25, 2009 Complaint filed by the Hearing Board of the Illinois Attorney Registration and Disciplinary Commission against Kristine Ann Peshek (No. 6201779).
Yes, I am well aware that social networking websites offer certain privacy settings aimed at allowing users to control access to their postings, and that these settings may tempt attorneys to post confidential information while believing they can control access to it. I would advise against relying on such privacy settings to protect the information posted from being disclosed to the public. The privacy controls may not work as advertised due to a programming bug or other technical error, or a website may change its privacy policies with little or no notice, thereby exposing to the public what you thought was private. You do not want to be the attorney trying to explain to the Discovery Commissioner or Magistrate Judge why client confidences or privileged information was inadvertently exposed to the public on your Facebook or Twitter page. The best practice is to not post the information in the first place.
Another temptation posed by social networking sites is to seek advice relating to a particular issue you might face while representing a client on which you would like some outside advice or guidance. The annotations to the Model Rules of Professional Conduct (on which Nevada’s ethical rules are based) indicate that a lawyer is permitted to use a hypothetical to discuss issues relating to a case as long as there is no reasonable likelihood the listener will able to ascertain the identity of the client or the situation involved. (Model Rule of Professional Conduct 1.6, cmt. 4 (6th . Ed. 2007)). Although posting such a hypothetical on a website or other online medium is technically permissible, you must ask yourself whether it is advisable. Even if you post an extremely generic hypothetical, you never know who could be reading, and it might be read by future opposing counsel, much to your client’s chagrin. If you are going to post such a hypothetical, it is imperative that you obtain the client’s consent first, and even after doing so, exercise the utmost caution to avoid revealing the identity of the client or the client’s issue.
Remember that anyone could be viewing your Facebook or Twitter page – even a judge. Not only is it ethically prohibited, recklessly bashing or making derogatory comments about a judge (or candidate for judge), can lead to quite an embarrassing situation. Nevada Rule of Professional Conduct 8.2 states “A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.” In a somewhat recent case, the Florida Bar sanctioned Florida attorney Sean Conway for referring in an internet posting to Florida state court judge Cheryl Aleman as an “Evil, Unfair Witch” and criticizing her conduct with respect to setting criminal trials. The $1,200 fine was upheld by the Florida Supreme Court which determined that the statement failed as protected free speech because the post was not uttered in an effort to expose a valid problem with the legal system. The Florida Bar v. Conway, 2008 WL 4748577 (Fla. Oct. 29, 2008).
In a Texas state court, an attorney requested a continuance of a trial from Judge Susan Criss claiming that the attorneys’ father had passed away. But Judge Criss saw the attorney’s Facebook page on which the attorney made a series of posts detailing her week of drinking and partying. Let’s not forget Jonathan MacArthur, who was removed from his position as a North Las Vegas judge pro tem in 2007 after posting certain statements on his MySpace page that Clark County District Attorney David Roger contended “displayed a bias against prosecutors” and, therefore, caused Mr. Roger to believe that the State of Nevada would not “get a fair shake” by Mr. MacArthur. (See http://www.lvrj.com/news/9121536.html.) Regardless of your opinion of circumstances surrounding Mr. MacArthur’s removal as judge, attorneys and judges alike need to be aware that even if an internet posting is technically ethical, it can still lead to professional embarrassment.
If you wouldn’t want opposing counsel to see it, don’t post it.
Social networking websites are here to stay, and certainly can have a place in your personal and professional life. If you choose to make use of social networking websites, you must remember that they are public forums, and information posted on there has the potential to result in serious ethical mistakes and problems. A good rule of thumb to follow is to assume that anything you post will be seen by opposing counsel, so if you wouldn’t want opposing counsel to see it, don’t post it.