Posted by Chris MacNaughton on Mon, Jan 11, 2010
An Associated Press article, Florida judges, lawyers must ‘unfriend' on Facebook, published on Saturday, December 12th, brought up an interesting topic: How ethical is friending for the legal profession? While the article discussed friending between lawyers and judges, another ethical consideration involves covert friending of witnesses and litigants. Whether you're using social networking to connect with your colleagues and peers or to gather information, you're in relatively uncharted territory.
Friending other Law Professionals
The AP article covered a November 17th ruling by Florida's Judicial Ethics Advisory Committee suggesting that online friendships, such as Facebook "friends" and "fans" between lawyers and judges could create an impression that lawyer friends may influence judge friends. An argument against the ruling brought up the point that the relationships are more like contacts and acquaintances.
The ruling specifically mentioned Facebook, extrapolating that it applies to other social networking sites. For example, the opinion said, ". . . the holding of the opinion would apply to any social networking site which requires the member of the site to approve the listing of a 'friend' or contact on the member's site."
The Judicial Ethics Advisor Committee concluded that it's okay for judges to interact with other judges and that lawyers can become "fans" of judicial election campaigns during elections. The overall tone of the ruling is that of caution. The article brought up these points:
• Judges and lawyers friending each other online can cause others to wonder if the lawyer will receive special treatment in the courtroom because of the online friendship.
• While judges and lawyers can certainly be friends, a public display may create an impression of impropriety amongst the public.
Friending Witnesses and Litigants
In addition to the controversy of friending judges, is that of friending witnesses and litigants. While it's unlikely that a lawyer would "friend" a witness, what about doing so covertly to discover evidence? What if a witness had a private Facebook profile that you wanted to explore? Is it ethical to friend the witness? What about having someone unknown to the witness become a "friend"?
The Philadelphia Bar Association Professional Guidance Committee published an opinion in March 2009 covering these behaviors. Several Pennsylvania Rules of Conduct were implicated in an inquiry about having a third party friend a witness covertly including:
• Rule 5.3 - Responsibilities Regarding Non-Lawyer Assistants
• Rule 8.4 - Misconduct
• Rule 4.1 - Truthfulness in Statements to Others
Rule 5.3 states the following:
With respect to a non-lawyer employed or retained by or associated with a lawyer: ...
(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:
(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; ...
Rule 8.4 states that:
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; ...
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; ...
Rule 4.1 states that:
In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person; ...
The opinion goes on to cover even more rule violations and discuss rulings covering the reach of rule 8.4. However, the above three rules provide sufficient guidance to make an informed, ethical decision.
What are your thoughts? Do you have online friends in high places? Is social networking addressed in your law firm?