On Legal Ethics


August 2, 2011


The new 'face' of legal practice

During breaks in court, lawyers routinely check their office voice mail, text messages, and e-mail. In todayís world, many of them also check their Facebook home page as well, because of the frequency with which people use this medium to communicate. When a lawyer’s Facebook “friends” are also her clients or prospective clients, she may face some significant issues regarding confidentiality and the attorney-client privilege. If they are judges, the lawyer and her black-robed “friends” may face issues with the appearance of impropriety. And the list of potential risks goes on. Welcome to the practice of law in the new millennium.

Modern modes of communication bring corresponding modern ethical issues. 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 increasingly public realm of electronic communication. This article will discuss the ethical issues relating to electronic communication generally, and the mechanics of popular social networking sites such as Facebook, Twitter and LinkedIn, and how the use of such services both professionally and personally can raise issues relating to client confidentiality, the attorney-client privilege, and more.

For the next several months we will explore a variety of different ethical issues arising from the use of online social media in connection with the practice of law. We begin by introducing some general areas involved in practicing law in the new millennium using electronic communication.

Donít end up with egg on your 'face'

Many lawyers choose to avoid social networking websites 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 the Wall of their “friends.” This is especially true regarding photographs you are “tagged” in and may not immediately notice have appeared on your home page, visible to anyone with whom you are Facebook friends, depending on your privacy settings. And if you accidentally accept a “friend” request from someone you donít know or from some special interest group, 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.

Some lawyers who decide to participate on Facebook may find themselves in the position of having to “unfriend” others, delete tags on photographs, or delete undesirable posts on their home page. Monitoring such information can become a time-consuming burden that causes some attorneys to question the propriety of participating in an online social network to begin in. Another concern involves privacy, or more to the point – the lack thereof. Have you ever heard that the “e” in “e-mail” stands for “evidence?” That means you should never put anything in an e-mail you wouldnít want to see marked with an evidence tag and offered into evidence by your opposing party in court.

How can you increase your privacy on social networking sites? First of all, recognize the irony in this question at the outset. By design, social networking sites are not private. Their allure lies in their utility as a vehicle to reach and connect with enormous amounts of people around the world with ease. Nonetheless, when you want to limit the people who can see your information, learn all you can about the siteís privacy settings and use them wisely to make your information as secure as possible. Be wary of installing available applications or you might unwittingly be sharing more of your personal information than you planned. Above all, keep up with the evolving privacy options featured on the social networking sites, and the constant stream of new developments in this area relating to privacy issues.

This article is the first in a series dealing with the ethics of social networking. Join us next month as we embark upon a series designed to assist the law practitioner of the new millennium by examining the specific ethical issues associated with practicing law in a virtual world.

Patrick is a deputy district attorney in the Sex Crimes and Stalking Division of the San Diego District Attorney's office and has been a chair of the San Diego County Bar Association Ethics Committee. Ms. Patrick is one of 16 members of the California State Bar Committee on Professional Responsibility and Conduct (COPRAC) She can be contacted at wendy.patrick@sddt.com. The information in this column is intended to be informational only and does not constitute legal advice. Please shepardize all case law before using.


August 2, 2011