Facebook 'friending' has ethical implications for lawyers

By Tom Gantert

Legal News

Sending out a simple Facebook "friend" request can get an attorney in hot water.

In August, two New Jersey defense lawyers faced ethics charges for using Facebook in "an unfriendly fashion," the New Jersey Law Journal reported.

The two allegedly had a paralegal send out a "friend" request on Facebook to a plaintiff in a personal injury case. It was believed to be an attempt to gain access to information not made public.

The New Jersey Office of Attorney Ethics said that violated Rules of Professional Conduct, according to New Jersey Law Blog.

Julie Fershtman, president of the State Bar of Michigan, called the Facebook "friend" request debate an "interesting topic."

"I personally believe that all lawyers, regardless of the size of the firm in which they practice, need to be mindful regarding how their social media activity, particularly with clients and adversaries, implicates the ethics rules," Fershtman said in an email. "I'm sure you would agree with me that if a lawyer engaged in dishonest conduct by, for example, having staff represent themselves as ''friend'' material to opposing parties or witnesses in an effort to secure access to information not otherwise available, these actions would have ethical implications."

Fershtman said the State Bar's Professional Ethics Committee has not written anything on social networking and has nothing in the works on it. Jackson Attorney Peter Langley said it's important for firms to address how their employees use Facebook.

"I think any firm that values their image and integrity should address the issue with a policy," Langley said. "Firms have a vested interes in their partners, associates or interns posting inappropriate pictures or comments and should consider a policy to address their use of Facebook or other social media."

Langley said Facebook and social media are tools for resourceful attorneys looking for information.

"The message is the same for everyone from the recent college graduate looking for a job to the suspect in a criminal case to the plaintiff in a personal injury case - you need to be careful about how you represent yourself on Facebook because it can be used against you,"

Langley said. "Facebook is a great way to communicate with friends and family but once that picture or comment is posted, it's out there for the world to see. One of the best pieces of advice I ever received from my old boss still holds true, 'if you don't want to see it printed in the newspaper, don't put it in writing.' "

State Bar of Michigan Executive Director Janet Welch recently wrote a blog titled, "OMG, Rules of Professional Conduct NOT Suspended On Social Media?!!"

Welch addressed the growing number of ethics complaints filed against lawyers nationwide for how they go about "friending" people on Facebook.

Welch wrote, "It shouldn't bear repeating, but apparently it needs to be: the rules of etiquette, good behavior, professional ethics, and the law, are not suspended while you are online."

She also included the 10 tips offered by the American Bar Association to keep social networking in line with ABA ethics. Welch summarized them as: Remember that the same rules apply. Do not betray client confidences. Avoid inadvertently forming attorney-client relationships. Do not solicit.

Steer clear of unauthorized practice. Understand the rules on recommendations. Remember the rule on trial publicity. Make no false or misleading statements. Become competent in technology and social media. Use common sense."

The San Diego County Bar Association issued a legal opinion in 2011 on a case involving a lawyer and Facebook "friend" request. The case involved an attorney representing a client in a wrongful discharge action. The attorney obtained from the client a list of former co-workers and the attorney sent a Facebook "friend" request to two high-ranking company employees whom the client said were not happy with the former employer and could make disparaging remarks about the employer on their Facebook page.

The "friend" request only included the attorney's name. The request was made because the attorney believed the employees may not be as forthcoming in depositions as they may be on their Facebook wall.

The San Diego County bar said the attorney violated his ethical duty not to deceive.

Published: Thu, Sep 13, 2012

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