All social media ethics opinions should be written this way. Sure, I admit it, the Pennsylvania Bar is a little late to the party when it comes to their most recent social media ethics opinion, but at least they did something with that time. Instead of releasing opinions piecemeal, like most states, they aggregated. There’s nothing wrong with shorter ethics opinions, but I’ve also seen too many attempts (mostly by the ABA) to put multiple issues into one opinion, only to provide an opinion that actually increases confusion.
That did NOT happen in this case.
Recently, the Pennsylvania Bar Association released Formal Opinion 2014-300, “ETHICAL OBLIGATIONS FOR ATTORNEYS USING SOCIAL MEDIA.” The opinion itself is 18 pages long, and upon first glance, it would seem to be a perfect candidate for TLDR (“too long, didn’t read” to the uninitiated). However, the opinion addresses 10 specific issues regarding an attorney’s ethical use of social media, citing to numerous different social media ethics opinions from around the country, as well as providing numerous examples of both permissible and prohibited conduct. This opinion provides an incredibly clear and detailed roadmap for attorneys to use social media in a professional and ethically permissible manner.
“This Committee concludes that:
1. Attorneys may advise clients about the content of their social networking websites, including the removal or addition of information.
2. Attorneys may connect with clients and former clients.
3. Attorneys may not contact a represented person through social networking websites.
4. Although attorneys may contact an unrepresented person through social networking websites, they may not use a pretextual basis for viewing otherwise private information on social networking websites.
5. Attorneys may use information on social networking websites in a dispute.
6. Attorneys may accept client reviews but must monitor those reviews for accuracy.
7. Attorneys may generally comment or respond to reviews or endorsements, and may solicit such endorsements.
8. Attorneys may generally endorse other attorneys on social networking websites.
9. Attorneys may review a juror’s Internet presence.
10. Attorneys may connect with judges on social networking websites provided the purpose is not to influence the judge in carrying out his or her official duties.“
Pretty thorough, wouldn’t you agree? On initial examination, there were some points I was unclear on, and I wanted to make sure that I understood how the Pennsylvania Bar Association was defining certain terms, but my issues were only minor. Upon complete reading of the opinion, my questions are answered. There is little to no ambiguity at all regarding what is or is not permissible. Moreover, in areas where some disagreement exists with other ethics opinions, the Pennsylvania Bar has, in my humble opinion, gotten it right.
In my mind, a few key issues stand out:
1) A Lawyer’s Ethical Responsibility to Understand Social Media
Pennsylvania has bought in to the ABA’s 2012 update to Rule 1.1 of the Model Rules of Professional Conduct, specifically the update to Comment 8:
“To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology…“
Consistent with their adoption of the updated language requiring attorneys to be aware of relevant technology, the opinion states:
“Thus, in order to provide competent representation in accordance with Rule 1.1, a lawyer should (1) have a basic knowledge of how social media websites work, and (2) advise clients about the issues that may arise as a result of their use of these websites.“
Although the opinion provides less guidance than I would like to see regarding how an attorney can meet this requirement, I applaud the recognition that attorneys have a duty to advise their clients about their conduct on social media.
2) Advising Clients on Use and Maintenance of Social Media Content
One of the biggest issues for attorneys concerning social media is the relatively indiscriminate use by their clients. Unlike television or billboards, not many clients look at social media as a world-wide publishing forum. However, that’s exactly what it is. You MUST expect what you post to be seen by everyone. Especially, as the opinion points out, by opposing counsel. On the other hand, advising clients about the content of their social media is itself fraught with peril.
“While an attorney is not responsible for the information posted by a client on the client’s social media profile, an attorney may and often should advise a client about the content on the client’s profile.“
Second, the opinion called for advising the client on removal of information, saying that it was permissible for an attorney to advise a client to remove certain information or refrain from posting. At the same time, it clearly stated that an attorney MAY NOT advise removal of anything that would trigger spoliation penalties, unless copies of all relevant information are kept (preferably by the attorney).
3) Contact with Unrepresented Witnesses
The opinion clearly allows attorneys, or anyone acting on their behalf, to contact unrepresented third-parties on social media, preventing a lot of the ambiguity that has accompanied other opinions addressing this issue. However, the opinion also clearly forbids contacting a witness without clearly explaining the attorney’s purpose and identity. Any suggestion that the attorney is a disinterested, or other similar act of deception, is unethical per se.
For factual guidance, the opinion itself cites to the case of an Ohio prosecutor and four other ethics opinions. The factual situations addressed by each are laid out, and provide excellent guidance. Moreover, the opinion addresses an issue specifically that has been ambiguous in prior opinions:
“The Philadelphia and New Hampshire Committees would further require the lawyer to state the purpose for the request, a conclusion with which this Committee agrees. These Committees found that omitting the purpose of the contact implies that the lawyer is disinterested, in violation of Rule 4.3(a).“
If only all opinions were that clear.
4) Disclosure of Confidential Client Information
There has been considerable dispute about what an attorney may disclose in response to an angry review by a client. I have previously suggested that the ethical rule allowing for disclosure of such information in self-defense does not apply to social media posts, but was rather intended for use in an official proceeding regarding the attorney’s conduct. The Pennsylvania Bar Association agrees:
“While there are certain circumstances that would allow a lawyer to reveal confidential client information, a negative online client review is not a circumstance that invokes the self-defense exception… [However, w]hile a response may not contain confidential client information, an attorney is permitted to respond to reviews or endorsements on social media. These responses must be accurate and truthful representations of the lawyer’s services.“
5) Contact with Jurors and Potential Jurors
Again, the Pennsylvania Bar Association clearly and effectively addresses an issue that has not been dealt with very effectively by other jurisdictions.
“During jury selection and trial, an attorney may access the public portion of a juror’s social networking website but may not attempt or request to access the private portions of the website. Requesting access to the private portions of a juror’s social networking website would constitute an ex parte communication, which is expressly prohibited by Rule 3.5(b).“
But what about sites like LinkedIn that would provide a notification that the attorney had viewed the juror’s profile?
“There is no ex parte communication if the social networking website independently notifies users when the page has been viewed.“
While I would have liked to see a little more clarity regarding social media connections with a judge (the opinion only prohibits connections that are made with the intention of influencing the judge), the remainder of the opinion is remarkable in its analysis and clarity. Pennsylvania attorneys now have an excellent idea of what conduct is permissible and what conduct is not. If only every ethics opinion was this clear.