While the title may cause the cynical to wonder aloud if lawyers do have ethics, the answer is yes we do. However, there are those among us who often fail to understand the ethical boundaries. Whether it is inexperience or misguided trial tactics, some lawyers push the ethical envelope in pursuit of trial advantages. The latest arena for this is the growing phenomenon of social networking.
In my last post I addressed the question of whether a lawyer may “friend” on Facebook a potential juror to gain the advantage of knowing the juror’s likes and dislikes. The answer was made clear by the Connecticut Grievance committee in an opinion that was aimed at a practice followed by some attorneys who do insurance defense work for a certain insurance company. That answer was that this constitutes improper contact with a potential juror.
The converse holds true as well. Jurors cannot “friend” a party in litigation. In every trial, criminal or civil, trial judges admonish jurors that they cannot do their own research. They should not visit the scene of an incident or read news accounts about it. With the advent of the internet that admonition grew to include specific directions not to Google information about the parties or any topic raised by the evidence. The reason is made very clear: jurors should only consider the evidence admitted in court. Accessing outside sources puts everyone at a disadvantage. In addition, while the internet is a wealth of information, not all of what you can access is accurate. If we allowed 6 people on a jury to web surf about a trial issue no two people would necessarily access the same information. None of the litigants would even know that and would have their issue determined by forces outside the courtroom arena, to everyone’s disadvantage.
In February the American Bar Association reported on a case of a Florida juror who “friended” a defendant in a personal injury case. The juror, Jacob Jock, was removed from the jury and later posted on his own Facebook “wall” that he had “scored” because he got dismissed from the panel. His defense to a citation for contempt was that he had 1300 “friends” on Facebook and was merely trying to determine whether the defendant was among them or a friend of a friend. That click of his mouse earned Jock three days in the hoosegow.
The San Diego County Bar Association issued a formal opinion in 2011 on the issue of lawyers “friending” adverse parties. Lawyers opposing the issue argued that secretly “friending” employees of a defendant company was akin to accessing information on a website. Not so the Bar responded: “The very reason an attorney must make a friend request here is because obtaining the information on the Facebook page, to which a user may restrict access, is unavailable without first obtaining permission from the person posting the information on his social media page.” Nothing in the rules prohibits an attorney from accessing the public Facebook page of an adverse party. Accessing information that a witness or party wants to restrict to a limited audience goes afoul of the rules: “But to obtain access to restricted information on a Facebook page, the attorney must make a request to a represented party outside of the actual or virtual presence of defense counsel. And for purposes of Rule 2-100, that motivated communication with the represented party makes all the difference.”
Creative lawyering often distinguishes the best from the also-rans. In the instance of surreptitious Facebook “friending” creativity is not a license for unethical conduct. Again, the caveat to the public, however, is don’t post it if you don’t want to have to testify and explain it some day.