The Ethics of Social Media, Pt. 5 [Slideshow]

Part 1: The Importance of Social Media to the Modern Law Practice
Part 2: Marketing Your Practice on Social Media
Part 3: Personal Use of Social Media
Part 4: Social Media in Discovery
Part 5: Social Media as a Research Tool
Part 6: Advise Your Clients Wisely! (June 12, 2014)

Social media is, at its most basic level, a tool for communication. Sure, it’s a great way for your firm to market your services locally. It’s also a great way for some 23 year-old to completely screw up their own personal injury case by posting inappropriate pictures shortly before trial. But at it’s core, it’s about communication.

However, it’s a communication tool that archives, stores, indexes, and is searchable. That’s right, it’s your communication history. I can find out quite a lot about you by checking out your social media accounts. Quite a lot of information that may be useful, say, if you were to be on my list of potential jurors for a major case. The ethical rules have been particularly slow to keep up with this facet of social media. However, in Part 5 of my presentation on the Ethics of Social Media, I discuss some ways to keep yourself within ethical bounds while performing your due diligence.

Using social media to conduct research on witnesses, parties, jurors, and judges is about as close to walking through a minefield as one gets in litigation. On one hand, given todays society, most people share critically important information about their personal beliefs, prejudices, and predispositions on social media. So much so that one court has even determined that attorneys actually have a duty to take reasonable steps to research the jurors on the case.

However, you always have to make sure not to cross the line. You’re not allowed to do anything that you couldn’t do in real life, so don’t “Friend,” “Follow,” or “Connect” with a juror or represented party. Although there is little agreement among the ethical authorities, they’re pretty much universally opposed to allowing lawyers to do that. Also, don’t get someone else to do it for you!!! That’s right, just like in real life, you’re not allowed to cyberstalk potential jurors by proxy.

Less universal is whether you’re allowed to conduct research when the juror could potentially be informed that you’re looking at their profile. The obvious example here is LinkedIn, which allows you to see who has looked at your profile unless they designate their account as anonymous. A recent decision by the ABA holds that such conduct is not a violation of the rules, but several jurisdictions and commentators, including myself, believe that the ABA’s decision is incorrect.

As with all interaction, remember that the existing rules still apply, and are likely to significantly inform any new rules that come along. Obey those rules on social media, and you’ll likely be fine.