Legal Ethics and Social Media

Several interesting lawyer ethics opinions and cases were published recently in New Jersey and other states.

1.       In Opinion 43 issued on June 28, 2011 by the New Jersey Supreme Court Committee on Attorney Advertising, the Committee considered a grievance filed against fifteen (15) New Jersey attorneys who participated in an internet company which owned a website which referred bankruptcy attorneys to website users. Attorneys who participated in the website paid for the exclusive rights to a geographical area, by zip code. When a website user seeking a bankruptcy attorney provided his or her zip code and contact information, the website identified the sole participating attorney for the pertinent geographical area. However, the website did not inform the user that the search for a bankruptcy attorney was completed the moment he or she input a zip code. Rather, the website home page invited a user to “get a free evaluation from a local bankruptcy attorney” by filling out a form, thereby giving the false impression that a selection was made from a number of bankruptcy attorneys based upon the information input by the user. Based upon those facts, the Committee decided that the payments made by participating attorneys to the internet company that owned the website were advertising costs, permissible under the ethics rules, rather that payments for an attorney referral service, ethically impermissible. However, since the information provided on the website concerning the selection of the participating attorney was deceptive and misleading, the attorneys who advertised on the website violated the ethical rules prohibiting attorneys from providing misleading information to consumers.

2.       In the New York County Lawyers Association Committee on Professional Ethics Opinion 743, issued on May 18, 2011, the Committee considered the following question:

After the jury is selected and the trial commences, may a lawyer routinely conduct ongoing research on a juror on Twitter, Facebook and other social networking sites? If so, what are the lawyer’s duties to the court under the Rules of Professional Conduct?

The Committee found that any direct or indirect communication between an attorney and a juror or potential juror during trial is prohibited under the attorney ethics rules. Therefore, an attorney may not send a “friend request” to a juror on Facebook, email a juror, attempt to connect to a juror via, sign up for an RSS feed for a juror’s blog, “follow” a juror’s Twitter account or otherwise communicate in any way with a juror once the jury is selected for trial. However, a lawyer may visit the publicly available Twitter, Facebook or other social networking sites of a juror without communicating with the juror. But, if a juror becomes aware of an attorney’s efforts to see the juror’s profiles on websites, such as when Twitter conveys a message to the account holder when a new person starts to “follow” the account, the contact may consist of an impermissible communication, barred under the rules.

3.       Similarly, this recent Appellate Division case found that New Jersey law allows lawyers in the State to research potential jurors on the Internet. In Carino v. Muenzen, No. A-5491-08T1, N.J. Super. Unpub. LEXIS 2154 (App. Div. Aug. 30, 2010), certif. denied, 205 N.J. 96 (February 3, 2011), a medical malpractice case, plaintiff alleged that the trial judge abused his discretion during jury selection by precluding plaintiff’s counsel from accessing the internet to obtain information on prospective jurors. He argued that the trial judge deprived him of “the opportunity to learn about potential jurors . . . one of the most fundamental rights of litigation.”

The Superior Court of New Jersey, Appellate Division, reversed the trial court, holding that:

Despite the deference we normally show a judge’s discretion in controlling the courtroom, we are constrained in this case to conclude that the judge acted unreasonably in preventing use of the internet by [plaintiff’s] counsel. There was no suggestion that counsel’s use of the computer was in any way disruptive. That he had the foresight to bring his laptop computer to court, and defense counsel did not, simply cannot serve as a basis for judicial intervention in the name of “fairness” or maintaining “a level playing field.” The “playing field” was, in fact, already “level” because internet access was open to both counsel, even if only one of them chose to utilize it.

4.       In the New York State Bar Association Committee on Professional Ethics Opinion No. 843, issued on September 10, 2010, the Committee concluded that a lawyer could ethically access the publicly available social networking pages (such as Facebook or MySpace) of another party in order to obtain information about that party for use in a lawsuit, including impeachment material, as long as the lawyer did not “friend” the party or otherwise communicate with the party and instead relied on those pages posted by the opposing party that are accessible to the general public.

5.       Similarly, In the San Diego County Bar Legal Ethics Committee Ethics Opinion 2011-2, adopted on May 24, 2011, an attorney representing the plaintiff in a wrongful discharge action sent a “friend request” via Facebook to two former high-ranking employees of the company being sued who were dissatisfied with the former employer and therefore likely to make disparaging comments about the employer on their social media pages. The plaintiff’s counsel did not identify the reason for making the “friend request” to the two former employees. The Committee concluded that an attorney’s ethical duty not to deceive prohibited the attorney from making a “friend” request of unrepresented witnesses without disclosing the purpose for the request.

6.       In the Matter of Ty Hyderally. In this ethics case before the Disciplinary Review Board (DRB), attorney Ty Hyderally revamped the website of his 14-lawyer law firm. Hyderally’s cousin did the job for free in 2005 and, in trying to dress up the site, included the seal of the New Jersey Board of Attorney Certification on every page of the site. However, neither Hyderally nor any lawyers in his firm were certified trial attorneys at the time. The emblem remained on the site for two years, until it came to the attention of the Committee on Attorney Advertising. The district ethics committee charged Hyderally with violating Rule of Professional Conduct 8.4(c), concerning conduct involving dishonesty, fraud, deceit or misrepresentation, and Court Rule 1:39-6(b), involving the improper use of the emblem for a certified civil trial attorney. The ethics committee also recommended a reprimand, finding that even if his use of the seal was unintentional, Hyderally’s failure to review and monitor the content of the website violated the RPC and rule. Hyderally testified before the DRB that he had looked at his firm’s website during the two-year period while the seal was displayed but did not notice the seal. After finding a lack of clear and convincing evidence that Hyderally knowingly committed the ethics violations, the DRB dismissed the ethics complaint.