Choose Your 'Friends' Carefully

By Wendy Patrick
Daily Journal, March, 2010
________________________________

When a modern lawyer sits down at her desk in the morning and turns on her computer, her home page may come up as anything from Yahoo finance, to the New York Times, to her Facebook "wall." Social networking Web sites are used heavily by modern lawyers, and offer many benefits to those who know how to use them safely and with the appropriate levels of caution. Lawyers are well advised, however, to choose their "friends" carefully on social networking Web sites. When a lawyer is connected as a friend to clients, judges, witnesses or other lawyers, he or she might be implicating issues of confidentiality, conflicts of interest, or the appearance of impropriety.

In an age of electronic communication and social networking, lawyers must be aware of their ethical and professional responsibilities and how they apply within the public realm of electronic communication. The use of popular social networking sites such as Facebook, Twitter, and LinkedIn both professionally and personally can raise issues relating to client confidentiality, the attorney-client privilege, advertising, the unauthorized practice of law, and more.

Almost 50 percent of lawyers who responded to a recent 2008 Network's counsel survey commissioned by LexisNexis and Martindale Hubbell said they participated in online social networks. While many law firms and lawyers use business-focused sites such as LinkedIn and Avvo, Facebook offers the opportunity for both business and social contacts, and thus appeals to a wide variety of professionals. One of the issues raised by these sites, however, is the careful selection of "friends."

In most jurisdictions, the answer will likely include not a judge that you practice in front of. In November 2009, the Florida Supreme Court's Judicial Ethics Advisory Committee opinion number 2009-20 stated that while a judge may post comments and other material on the judge social networking site page as long as they did not violate the Code of Judicial Conduct, a judge may not add lawyers who may appear before him or her as "friends" on such sites, nor can they permit lawyers to add the judge as a "friend." The Committee explained that when a judge lists lawyers that may appear before the judge as social networking "friends," that display may convey the impression that these lawyers "are in a special position to influence the judge." The rationale is about the appearance of impropriety in a public forum than concerns over actual influence. The Committee pointed out that judges are permitted to list other people as "friends," including lawyers that do not practice in front of the judge.

A North Carolina judge was reprimanded for "friending" a lawyer in a pending case, accessing the opposing party's Web site, and reading messages relating to the litigation. Regarding judges' use of social networking sites in general, the New York Advisory Committee on Judicial Ethics op. 08-176 (2009) concluded that as long as a judge complies with the applicable Rules Governing Judicial Conduct, he or she can participate on an internet-based social network, assuming an acceptable level of competence with the network features.

It may be improper, however, for a judge to view the Web site of a party appearing before him or her (North Carolina Judicial Standards Commission Inquiry No. 08-234 (2009) [judge also engaged in ex parte communications with counsel])

Are there other activities that a judge should refrain from on social networking sites? A Georgia superior court judge who just stepped down could answer that question for you. The Georgia judge apparently developed a personal relationships on Facebook with a woman who was a defendant in a case that was pending in his courtroom. The relationship began when the judge contacted the woman asking about a haircut because he saw that she worked for a hair salon, and progressed over time to the judge advising the woman on strategy and negotiation in her own case, even stating "I can help you more behind the scenes so long as very few people know it." The relationship then progressed to in-person contact. While the judge was not prosecuted criminally, his conduct appeared to violate the Georgia Code of Judicial Conduct, which states among other things that judges shall maintain high standards of conduct, and avoid both impropriety and the appearance of impropriety "in all their activities."

Regarding the appearance of impropriety, would "following" someone else on Twitter cause a problem? What if you, as an attorney, are "following" an adverse party? Is it different if they are "following" you? Does it matter if you are only reading each other's "tweets" and not communicating with each other directly? Some lawyers balk at the idea of having to run a conflicts check on every person or entity with whom they interact in some fashion on social networking sites, but is there an argument that such diligence is required? We are all interested to see how court decisions and ethics opinions will continue to define rules and standards in this fast-evolving arena.

Many lawyers choose to avoid social networking Web sites like the plague. They see too many opportunities for mischief, misunderstanding, and miscommunication. Not to mention the potential damage to their reputation that could result from any evidence of impropriety that might be displayed on their Facebook "wall" or their friends' "wall." And if you accidentally accept a "friend" request from someone whom you don't know, perhaps by inadvertently hitting "accept" instead of "ignore," you might find out the hard way that you have unwittingly become associated with a person or a cause that may cause damage to your practice and to your reputation. The same goes if you accidentally sign up for someone's "fan page." Instead of worrying about becoming "guilty by association," some lawyers prefer not to jump into the social networking fray in the first place.

Facebook and other social networking sites are a great way to keep in touch, but be wary of who you call your "friends." A working knowledge of the law and evolving ethical opinions in this area will keep you connected, and also protected. Good luck!

This article does not constitute legal advice. Please shepardize all case law before using.

Wendy L. Patrick is a San Diego County Deputy District Attorney in the Sex Crimes and Stalking Division. She has been a Chair of the San Diego County Bar Association Legal Ethics Committee for over five years and is a member of the California State Bar Committee on Professional Responsibility and Conduct. She has an ethics column in the San Diego Daily Transcript and also lectures on ethics.