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Pennsylvania bar on lawyers, social media, ethics

Stacked3This week's Daily Record column is entitled "Pennsylvania bar on lawyers, social media, ethics."  My past Daily Record articles can be accessed here.

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Pennsylvania bar on lawyers, social media, ethics

As social media permeates our culture, its relevance to the practice of law increases. This is because social media platforms can be used by lawyers to market their law practices and can also be mined for evidence to support their clients’ cases. Of course, any type of online interaction brings with it a host of ethical considerations and that’s why ethics committees across the country have handed down an increasing number of opinions addressing the ethical issued presented when lawyers participate on social media.

The Pennsylvania Bar Association recently joined this trend when it handed down Formal Opinion 2014-300.

In this lengthy 18-page opinion, the committee addressed a host of issues related to both using social media for marketing purposes and obtaining evidence on social media. The most interesting topics considered in this opinion revolved around using social media to obtain information about witnesses or jurors.

Specifically, the committee considered the ethics of connecting with represented and unrepresented individuals for case-related purposes and also whether lawyers may use social media to research jurors.

First, the committee addressed the ethical issues presented when lawyers use social media to mine for evidence. The committee noted that its analysis turned on whether the individual the attorney was researching was represented by counsel.

The committee joined the majority of other jurisdictions on this issue, concluding that lawyers may ethically obtain information about a represented person that is publicly available online but may not attempt to connect with or “friend” that person in order to obtain information behind a privacy wall on a social network.

Next the committee turned to the topic of how a lawyer may ethically conduct online research regarding unrepresented individuals and reached a decision that comported with those issued by the majority of other jurisdictions.

The committee concluded that information publicly available was fair game, but in order to access information behind a privacy wall, lawyers or their agents must disclose the reason for their request.

The committee emphasized the importance of avoiding deception when doing so, explaining that: “(A) lawyer may not use deception to gain access to an unrepresented person’s social networking site. A lawyer may ethically request access to the site, however, by using the lawyer’s real name and by stating the lawyer’s purpose for the request. Omitting the purpose would imply that the lawyer is disinterested, contrary to Rule 4.3(a).”

The committee also considered the issue of how lawyers may ethically use online sites to research jurors. The committee concluded that it was ethically permissible to do so as long as the information was publicly available since doing so did not constitute an ex parte communication.

Interestingly, when it came to the issue of whether an ex parte communication occurred when passive notifications are sent by some social media sites, such as LinkedIn, to notify users that an individual has viewed their profile, the committee departed from the decisions issued by the New York City Bar Committee on Professional Ethics Formal Opinion 2012-2 and the New York County Lawyers Association Formal Opinion No. 743, instead agreeing with the recent conclusion of the American Bar Association as set forth in Formal Opinion 466.

The committee explained that “(t)here is no ex parte communication if the social networking website independently notifies users when the page has been viewed. Additionally, a lawyer may be required to notify the court of any evidence of juror misconduct discovered on a social networking website.”

All in all this was an instructive, comprehensive opinion that covered a wide range of issues, many of which were not addressed in this article due to space limitations. For that reason I highly recommend that you take the time to read the opinion in its entirety. An online version can be found here: www.danieljsiegel.com/Formal_2014-300.pdf .

Nicole Black is a Rochester, New York attorney and Director of Business Development and Community Relations at MyCase, intuitive web-based law practice management software for the modern law firm. She is also a GigaOM Pro Analyst and is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can bereached at niki@mycase.com.