You Can't Stick Your Head In the Sand - Attorneys Need to Understand Social Media

When it comes to social media, and the impact of Facebook, Twitter and other sites on the practice of law, lawyers can no longer merely stick their heads in the sand and feign ignorance. As the New Jersey Supreme Court recently ruled, "Attorneys must acquaint themselves with the nature of social media to guide themselves and their non-lawyer staff and agents in the permissible uses of online research. At this point, attorneys cannot take refuge in the defense of ignorance." This conclusion is consistent with opinions by many ethics committees.

In this episode of The Legal Tech Podcast, attorney Daniel J. Siegel, Chair of the Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility, discusses opinions by the Pennsylvania Supreme Court, and ethical guidance from the Pennsylvania Bar Legal Ethics Committee and the Philadelphia Bar Association Professional Guidance Committee, affirm that lawyers must recognize the importance of social media to their clients and their practices. They can no longer claim ignorance and stick their heads in the sand.

Attorney Dan Siegel is the principal of the Law Offices of Daniel J. Siegel, LLC and president of Integrated Technology Services, LLC, and represents attorneys in disciplinary matters, and provides ethical and techno-ethical guidance to attorneys and law firms. This is the second episode of his firm's Legal Tech Podcast. 

Transcript

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Hello.

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Welcome to the second episode of the Legal Tech Podcast, sponsored by the law offices of Daniel J.

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Siegel, LLC and Integrated Technology Services, LLC.

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I'm Attorney Dan Siegel, and I'm here today to talk to you about the dangers of ignorance and attorney ethics.

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Where we're going to start is the Bible and Leviticus, yes, legal ethics and the Bible.

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But in Leviticus, we are told that when a person without it sins in regard to any of the Lord's Commandments about things not to be done and realizes his guilt, he shall be subject to punishment.

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That's really the case with attorney ethics as well.

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We know that in law, there is a doctrine that ignorance of the law is not an excuse and that you can't escape liability for violating the law simply because you are unaware of it.

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So now let's look at that concept in the context of attorney ethics and Facebook and social media.

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When Facebook began, when social media began, none of us really understood how important it would be in society.

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And, of course, in law, the issues of social media and what is posted on Facebook and other websites is an issue in litigation.

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It's an issue all over the place and in so many ways.

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And in so many cases, it can be used to help prosecute criminals.

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It can be used as a defense or as a weapon in litigation, personal injury, workers compensation, the types of things that we see in our office.

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But social media itself is ubiquitous.

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What began as a concept that most of us never really thought about has become a a factor in every aspect of our lives.

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After all, President Trump used social media, Twitter to announce policy, hirings, firings, etc.

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Social media is here to stay.

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But the problem is that a lot of lawyers continue to assert that ignorance is their defense.

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They don't need to know about social media.

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They don't need to really be concerned about it and its impact on their clients and impact on their behavior as well.

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That's simply not true.

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So let's take a step back and we're going to go back to 2009.

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And we're going to see that in 2009, the Philadelphia Bar Association Committee on Professional Guidance issued an opinion relating to whether it was appropriate for an attorney or someone acting on behalf of an attorney to contact a party or a witness without telling them who they were because it was on social media.

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It was Facebook.

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We've always known that you can't have such pretextual communications with represented parties, but now it was social media.

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So after all, it's the Internet.

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That's okay.

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Right.

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Well, the Philadelphia Bar Association Committee said, no, it's not okay.

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And that the conduct violated rule of professional conduct.

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Eight, four C because the communication was deceptive.

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It makes sense.

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But back then, people thought, Well, after all, it's just the Internet, so we don't even have to be concerned.

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One of those People is an attorney in New Jersey whose name was Robotel.

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And Mr.

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Robotel got involved in a personal injury case where he represented a defendant.

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And in the case, he was concerned with investigating the plaintiff, and he threw his paralegal legal assistant began investigating the plaintiff and also trying to determine what, if anything, was on this person's social media page and in particular, Facebook.

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Well, this was in 2007 and 2008, and fortunately for attorney route, the materials from back then didn't exist in the present.

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And yes, fastforwarding, 13 or 14 years later, in September of 2021, the New Jersey Supreme Court declined to impose attorney discipline on attorney Ro Bertelli.

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The Supreme Court in New Jersey said that it was not imposing the discipline, not because the attorney didn't do anything wrong.

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No, it said that it didn't impose discipline because the evidence fell short of establishing that the attorney had engaged in conduct involving dishonesty fraud, deceit, or had engaged in conduct that was prejudicial to the administration of justice.

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In other words, they couldn't prove their case against him, and the attorney wasn't disciplined.

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He got off, like we say on a technicality, but he got off.

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Well, that case in 2021 is important because the New Jersey Supreme Court had said that as of 2007 or eight, no ethics committee had opined about the issue of Facebook social media.

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Those issues as a result, Robertelli's defense of ignorance.

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I didn't realize just how important social media was in the issues relating to social media.

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The things that were used as his defense at that time hadn't been addressed by ethics committees.

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Philadelphia did in 2009.

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Numerous bar associations all over the country also raised that issue, and every one of them agreed that you can't use pretext in order to contact and a represented party or a party in general.

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You have to say, if you're going to do the contact who you are, who you represent, who you're working on behalf of the Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility issued a detail what we call a formal opinion guidance designed for the bar as a whole in 2014 number 2014 200.

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And the committee, which I currently chair, addressed the issue and said that you you can't use social media in that way.

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We said that lawyers must be aware of how social media websites operate and the issues that they raise so that you can represent clients in matters that may be impacted by content posted on social media websites.

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We also said that lawyers should understand the manner in which postings are public or private.

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And if I'm saying that and you don't know the difference, then if you're an attorney, you need to stop, make a note and then find out that information.

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It's really important.

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So we know that as time has developed and social media has become so pervasive that lawyers can't ignore the impact of social media on cases and have to understand how it works, even if they never intend to have a Facebook account or a Snapchat account or look at Twitter or any of those things.

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Ignorance isn't a defense.

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Ignorance isn't a defense.

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As the Supreme Court of New Jersey made very clear in their decision.

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Yes, they chose not to discipline Attorney Rover Telly, but they certainly did not conclude that what he did was acceptable or that it would be acceptable or that his defensive ignorance would work in the future, the court said.

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Exactly to the contrary, the court said that attorneys should know that they may not communicate with a represented party about the subject of the representation through social media or in any other manner, either directly or indirectly, without the consent of the party's lawyer.

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The court further said that today social media is ubiquitous, a common form of communication among members of the public.

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Attorneys must acquaint themselves with the nature of social media to guide themselves and their nonlawyer staff and agents and the permissible uses of online research.

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At this point, attorneys cannot take refuge in the defense of ignorance.

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So there it is.

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The New Jersey Supreme Court sent a broad shot to all New Jersey attorneys.

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Ignorance is not a defense.

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You can't stick your head in the sand.

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They also referred the issues in the Robertelli case to their advisory Committee on Professional Ethics for consideration of amendments to the rules of Professional conduct.

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The rules that govern attorney ethics in New Jersey and every state has them.

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Pennsylvania has similar rules, and we've seen the import of those rules very recently and in a way that shows that the Pennsylvania Supreme Court also intends to adopt a similar perspective relating to social media and attorneys and the fact that ignorance just doesn't work.

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Where do we know that? We know that in the case of Stacey Parks Miller, who was the district attorney of Center County, and she was disciplined in 2019 and suspended from her license was suspended for a period of one, one year and one day.

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That one day is significant for purposes of attorneys who are involved in the disciplinary process.

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But what's important is that the Supreme Court issued its order and as part of its order.

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What's included in the record is the report and recommendation of the disciplinary board of the Pennsylvania Supreme Court.

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The disciplinary board is the entity that imposes or recommends what discipline should be imposed on an attorney.

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And in the case of Attorney Parks Miller, there was a lot of information.

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There were a lot of things going on in her case, and I'm not going to go through all of them.

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But what's important is that the opinion and recommendation from the disciplinary board cited various other cases in which attorneys were, in fact, discipline throughout the country for improper social media conduct, which was part of the issue or the issues in the disciplinary prosecution of Attorney Parks Miller.

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The board wrote in its opinion, citing 2009 Pennsylvania ethics opinion from the Philadelphia Bar Association Professional Guidance Committee generally condemned covert efforts to gain access to restricted social media website, a point which respondent, Parks Miller conceded, and they quoted the Philadelphia Bar Committee noting that the mere act of concealing a highly material fact as to why the contact on social media was being made would violate multiple rules of professional conduct, including rules eight, four, C, four, three, and possibly five, three, depending on the Attorney's authority over the third party.

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And they noted that that opinion existed at the time that Stacey Parks Miller created a fictitious Facebook page in 2011, although she sought no guidance before creating the page.

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They then note that the issue relating to social media was revisited in a 2014 opinion.

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This from the Pennsylvania Bar Committee, which reinforced the fact that even the Innocuous Act of having a third person send a friend request to a represented party in order to gain access to the private portion of their social media profile violates Rule eight four C.

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Thus, the disciplinary board affirmed that attorneys should be looking at the guidance offered by ethics committees should be aware of it, and also that they should understand what their obligations are, what they can and cannot do when it comes to social media.

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So the days of saying I didn't understand, I was ignorant.

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They're gone.

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And it matters not whether an attorney is new and young and very social media savvy or someone who is older who chooses not to be involved in social media.

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You have to understand that I've always used the example when I lecture on this type of topic about doctors.

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Medicine has changed a lot over the years.

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In fact, when you think about it, when many doctors went to medical school, there were no such thing as an MRI or similar procedures.

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Medicine has improved.

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Can you imagine how you would feel if you went to a doctor who said, Well, I'm not going to order that MRI that you're asking about because those MRIs weren't around when I was in medical school, and I'm only using the medical technology and innovation that was around when I graduated medical school.

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Of course, that wouldn't make you happy, and you would likely find another doctor in the context of attorney ethics.

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The issue is also clear.

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Lawyers must understand how social media works and must take precautions if you're going to investigate another party's use of social media, which I hardly recommend doing, but you have to do it in a manner that complies with the rules of professional conduct.

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I'm Attorney Dan Siegel.

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This has been episode two of the Legal Tech podcast sponsored by the law offices of Daniel J.

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Siegel LLC and Integrated Technology Services LLC.

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We provide in the law firm ethical and techno ethical guidance to attorneys disciplinary representation as well.

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And in our consulting firm, we assist attorneys with workflows, but also in assuring that their offices are technologically set up so that they protect attorney client information and confidential sensitive information.

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You can find us at Daniel J.

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Siegel, Daniel Siegel.

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Com and at Tech Lawyer Tech lawyer.

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Com.

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Thank you for listening.