Dr. Seuss, Cheese and Social Media, Part II: Ethical Pitfalls, Pretexting and Duties of Candor

 Imagine the following eloquent cross-examination:

ATTORNEY SAM: Good morning, Witness. I am Sam. Do you like green eggs and ham?
WITNESS: I do not like them, Sam-I-am.
ATTORNEY SAM: Would you eat them in a house?
WITNESS: I would not eat them in a house.
ATTORNEY SAM: Would you eat them with a mouse?
WITNESS: I would not eat them with a mouse.
ATTORNEY SAM: Would you eat them here or there?
WITNESS: I would not eat them here or there. I would not eat them anywh --

Why the sudden break in testimony? Because last month Attorney Sam managed to get Witness to "friend" him on Facebook, and he is now holding up the fruits of that endeavor as Exhibit A -- a photograph posted on Witness's page in which he is . . . eating green eggs and ham.

Part One of this article discussed how an attorney's use of social media can lead to breaches of confidentiality, conflicts of interest, unintended relationships, and improper advertising. But as comprehensive as this list seems, additional ethical issues can rise out of an attorney's immersion in social media.  These problematic issues include misrepresentations made to third parties on social media and violations of one's duty of candor to the court.  

1.  False and Misleading Behavior (Pretexting):  The ABA Model Rules of Professional Conduct ("ABA MPC") for lawyers are full of prohibitions against attorneys engaging in various types of false and misleading statements.  For example:

  • ABA MPC Rule 4.1: Attorneys cannot make false, material statements to a third party.
  • ABA MPC Rule 4.2 -- Attorneys cannot communicate with a represented person.
  • ABA MPC Rule 4.3: Attorneys cannot misrepresent their role or disinterestedness to an unrepresented party, and must correct any misunderstanding as to these issues.
  • ABA MPC Rule 5.3: Attorneys are responsible for the conduct of a non-lawyer assistant and must make reasonable efforts to ensure the person's conduct is compatible with the lawyer's professional obligations.
  • ABA MPC Rule 8.4(c): Attorneys cannot engage in conduct involving dishonesty, fraud, deceit, misrepresentation, or encouragement of such.

In today's cyberworld, every single one of these rules can be evoked when an attorney engages in pretexting, which raises ethical concerns relating to contacting opposing parties and gathering information without full disclosure or consent.

What is pretexting? The long, boring answer: obtaining personal information under false pretenses, usually by concealing one's identity or intent. The short, more interesting answer: the Hewlett-Packard (HP) scandal of 2006. HP spied on its own directors' personal phone records to determine who was leaking company information, by having private investigators call up phone companies, pretending to be the directors who were seeking their "own" records. Criminal charges were brought against the HP Chairman of the Board, Patricia Dunn, the alleged brains behind the investigation. The charges were eventually dropped "in the interests of justice," but not before Dunn was pressured to step down as Chairman.

While the HP scandal did not concern social media, it brought the growing practice of pretexting to the forefront -- a problem that has been magnified in the online context. People, after all, are easier to deceive in a virtual world.  It would be simple for Attorney Sam to create a false Facebook page in order to get our Witness to accept his friend invitation. The end result: the incriminating impeachment photo.

Did Attorney Sam act improperly? Most likely. Bar associations and courts are bearing down heavily on pretexting lawyers. While it is fine if the social media page is public, like a blog or an open Facebook page, see, e.g., NY State Bar Ass'n Comm. on Prof. Ethics, Op. 943 (Sep. 10, 2010), if the attorney must interact with the person to gain access (i.e., "friending"), the pretexting would likely violate one or more ABA rules.

"But wait," Attorney Sam might say. "I may not have told him who I was, but Witness accepts friend invitations from everyone, even people he doesn't know!" Too bad.  The pretexting still involved "dishonesty, fraud, deceit or misrepresentation." See, e.g., Philadelphia Bar Ass'n Prof. Guidance Comm. Op. 2009-02.  Whether Witness might still have accepted Attorney Sam's invitation if he knew of his identity, is irrelevant. Id.  Similarly, at least in Philadelphia, even where the attorney is honest about who he is when making a friend request, an attorney must make full disclosure of his motive, otherwise the request is deceitful since the attorney is concealing a highly material fact -- that he is trying to obtain impeaching testimony. Id. Luckily for Attorney Sam, New York has come out a different way. There, if an attorney uses his real name and profile without disclosing the reason, no ethical violation may be found if the person being friended is an unrepresented party. See NYC Comm. On Prof. and Jud. Ethics 2010-2 (Sep. 2010).

"Wait!" Attorney Sam says again, eager to remove all doubt. "Maybe it wasn't me who made the friend request. It was my private investigator, who also doubles as my paralegal!" But if the paralegal or investigator engages in this conduct at the attorney's request, and possibly even without his express knowledge, the attorney is still on the hook -- for example, under Rules 5.3 and 8.4(c).  There are, however, limited exceptions. Remember, as set forth in Part I, that this case by Cheese, Inc. is a patent infringement case, and might have overtones of trade secret issues. Some bar association ethics committees allow for pretexting when investigating violations of civil or intellectual property rights.  New York is one example.  See, e.g., NY Cty Lawyers Ass'n Comm. on Prof. Ethics No. 737. Similarly, in Alabama, "[d]uring pre-litigation investigation of suspected infringers of intellectual property rights, a lawyer may employ private investigators to pose as customers under the pretext of seeking services of the suspected infringers on the same basis or in the same manner as a member of the general public." Alabama State Bar Office of the Gen. Counsel Op. 2007-05.  This ruling has been found applicable to social media.

In short, friending witnesses or anyone else involved in the case is risky. The law is still not quite settled. Until it is, better safe than sorry.

2.  Duty of Candor.  In addition to a duty not to make false statements to third parties, a lawyer also has a duty of candor to the court:

  • ABA MPC Rule 3.3(a): A lawyer shall not knowingly . . . make a false statement of fact or law to a tribunal . . .

While social media does not necessarily cause an attorney to violate this duty, it does make it easier to be caught with one hand in the cheese cabinet. A prime example is an attorney who asked Judge Susan Criss of Galveston, Texas state court, for a continuance because of the death of her father. Judge Criss peeked at the lawyer's public Facebook page during the week of the alleged funeral, and found that she had posted a string of status updates detailing her week of drinking and partying.

Attorneys might rail against the unfairness of judicial intrusions upon their Facebook pages. But at least one court has held that attorneys likely have no "reasonable expectation of privacy" on social media despite whatever privacy settings they employ, since Facebook and MySpace do not guarantee "complete privacy." Romano v. Steelcase, 907 N.Y.S.2d 650, 655 (2010). This was proven again just this past week on July 20, 2011, when police found an escaped drug offender lunching with his Oklahoma lawyer a day after he escaped from jail -- in part because they discovered that the lawyer had posted a Facebook photo of the two of them together.

In short, lawyers who use social media -- whether personally or for investigative purposes -- should therefore be careful:  sometimes it is not possible to both have your green eggs and ham, and eat them too. 

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Coming soon, the final installment of our "Dr. Seuss, Cheese, and Social Media" trilogy, on what happens when attorneys discuss or contact judges on social media. 

Dr. Seuss, Cheese and Social Media: Ethical Pitfalls Impacting Attorneys and Their Clients

Should lawyers be able to move about as freely within social media as the rest of the population, despite the risk to themselves and their clients? Perhaps Dr. Seuss said it best in Horton Hears a Who, although the full verse ought to have gone something like this:

"A person’s a person, no matter how small."
And your lawyer’s a person as well, after all.
So Twitter and LinkedIn and Facebook's friend wall --
They aren’t just yours, but are his ports of call.

When engaging in social media, the last thing an attorney and his client have in mind is the almighty “E” word: ETHICS. But an attorney’s use of social media poses a multitude of ethical risks that impact that attorney, his law firm, and his client.  Of course, it is hardly feasible (and, the author of this blog humbly adds, hardly fair) to exclude attorneys from what has become the communicative oxygen of the twenty-first century. Nonetheless, attorneys must take more care than most individuals as to what they post online. Otherwise, they risk opening a Pandora’s box of ethical violations that impact themselves, their firms and their clients -- such as breaches of confidentiality, conflicts of interest, the creation of unintended relationships, and improper advertising. And those are only the obvious possibilities.

What are some of the ethical rules under the ABA Model Rule of Professional Conduct ("ABA MPC") that one’s attorney can commit on social media, that endanger a client’s case or information, among other things?

1.  Breaches of Confidentiality. ABA MPC 1.6(a) has two prongs:

  • Lawyers cannot reveal information "relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted" under several narrow exceptions.
  • Lawyers must competently safeguard their client's information against unauthorized or inadvertent disclosure by the lawyer.

Let’s pretend you are the CEO of Cheese, Inc. and your company was just yesterday granted a patent on a method of creating cheese wheels that are fat-free and even tastier than "the real thing." You have hired a young, up-and-coming patent litigation partner at Dewey, Cheatham & Howe LLC to help you amass a case against a number of pizza companies, cheese manufacturers, and restaurants who make or use cheese wheels that infringe your patent. You’ve friended your DC&H attorney on Facebook and LinkedIn because . . . well, because the more connections, the better, right? To your horror, you see your attorney’s status update gleefully stating that he is "About to take on the cheese industry -- stay tuned!"

If that’s not enough, one of your attorney’s 700 “friends” on Facebook happens to be married to in-house counsel for a major cheese manufacturer. That savvy attorney takes a look at your friendly DC&H partner's page to see where he's "checked in" over the last week or so, and sees that he went to dinner a few blocks away from Cheese, Inc. He also sees that you, the CEO of Cheese, Inc., are on this attorney's "friend" list. He puts two and two together. The next day, his company files a declaratory judgment lawsuit against Cheese, Inc., way out in the inconvenient Western District of Kalamazoo where he is based, asking for a declaration of noninfringement. You have now lost the home court advantage, among other things.

There are many other ways an attorney can breach confidentiality on social media, even if it doesn’t result in a situation as extreme as this:

  • Even innocuous status updates like, "I'm working on a motion to dismiss in ABC case, arguing XYZ" are risky, since someone might be able to tell from context what case it is.
  • If an attorney posts a status update or tweet from a smartphone, i.e., “just met a brand new client with a lucrative lawsuit”, geo-tagging can show where he was and allows one to guess the client's identity from the location.
  • An attorney may inadvertently reveal confidential information, such as a confidential relationship, by allowing a site like LinkedIn to import Outlook contacts, or allowing others to view his "friend" list, which could include clients.
  • Linking to other websites on Facebook (such as a client’s) could disclose a confidential relationship.
  • Some sites require granting the site developer access to all information placed on it, which could destroy claims of privilege/confidentiality regarding social networking communications.

As one real life example, in Illinois Supreme Court M.R. 23974 (Ill. May 18, 2010), an Illinois attorney received a 60-day suspension and was fired from his public defender job of 19 years, for making veiled references on a Facebook page to his client's identification and confidential case details. His posts included: "This stupid kid is taking the rap for his drug-dealing dirtbag of an older brother because he's no snitch." While vague, the post was still enough to reveal client confidences. However, the attorney admittedly referred to the judge in the case as "Judge Clueless" and "a . . . hole,” which certainly did not help his situation.

2.   Conflicts of Interest and Unintended Relationships. Nor is breach of confidentiality the only potential difficulty. ABA MPC 1.7 precludes a lawyer from representing a client where such representation is "materially limited" by a "personal interest of the lawyer." And ABA MPC 1.8 states that even where no attorney-client relationship is created, “a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation" or "represent a client with interests materially adverse to those of a prospective client in the same or substantially related matter" if it could be harmful to that prospective client.

What does this mean for social media? As a client, your attorney could violate either rule as to your interests simply through routine internet communiqués. Let’s say you, our CEO of Cheese, Inc., have that DC&H attorney with a Facebook page that you are privy to. His News Feed contains a post from a friend who is a taste tester for Food & Wine magazine, expressing fear that she may be embroiled in a lawsuit involving a company she consults with. You see that your attorney has provided a few tips on staying out of trouble.  You also recognize the friend as a well-known cheese expert who works closely with one of the competitors you are about to sue!  You Google your attorney’s name and find that soon after this communication, your attorney wrote a blog post about how the food industry is becoming increasingly litigious and what can be done by "the little guy" to protect oneself against such lawsuits by the Big Cheese.

Unlike other methods of communication, social networking often consists of casual interactions that cannot be distinguished from more formal relationships. Simply by helping out a friend or expressing a public opinion on a public issue, your attorney may very well have created at least one conflict of interest implicating ABA MPC 1.7 and 1.8. And how?

  • Providing casual advice can create an attorney-client relationship or even "prospective" relationship that does not rise to that level, which conflicts with an existing client. Attorneys are constantly faced with friends who post about their legal troubles, so there is a temptation to give quick advice without thinking about it first -- and certainly without running conflict checks.
  • Soliciting confidential information on social media can easily create such a relationship as well. Acquiring confidential information from the prospective client -- even via a casual "tell me more and I'll give you a little advice off-the-record" -- could then lead to a conflict of interest with a current client.
  • Expressing definitive legal opinions on social media may conflict an attorney out of a big case with a current client. In fact, the entire firm could be conflicted out due to one attorney's comments.

However, note that a legal blog does not pose these ethical dilemmas if there is no communication of individual advice. As stated in State Bar of Ariz., Formal Ethics Op. 97-04 (1997):

Lawyers should not answer specific legal questions from lay people through the Internet unless the question presented is of a general nature and the advice given is not fact specific.

Thus, if your attorney possesses a “Dear Abby, J.D.” type of website or blog that offers specific advice on problems within your industry, it might be a good idea to think twice before signing the engagement letter.

3.  LinkedIn and Client Contacts. ABA MPC 7.4 states that an attorney cannot claim a specialty unless it is in admiralty or patent law, or unless the lawyer has obtained a certification. Similarly, ABA MPC 7.2(b) states that an attorney cannot give something in value in exchange for a recommendation from a client. But social media, particularly LinkedIn, makes it easy for attorneys, both in-house and outside counsel, to fall into this trap.

For example, your DC&H attorneys have successfully resolved Cheese, Inc.'s patent infringement lawsuit, obtaining an infringement finding and leading to damages in the hundreds of millions. You, as CEO of Cheese, Inc., are thrilled! You've been playing with LinkedIn, and tell your contacts at DC&H that you'll recommend them if they recommend you. You both write and post blurbs about each other. This complements all of your LinkedIn profiles, which now lists all of the attorneys involved as specialists in patent litigation. How does this and other usage of LinkedIn violate the rules?

  • The "Recommendations" feature allows your client to recommend you, and vice versa. Clients and attorneys should not quid-pro-quo recommend each other on LinkedIn, so as not to violate ABC MPC 7.2(b).
  • The "Recommendations" feature allows clients to say whatever they want. Ethical standards prevent some types of statements, such as comparisons to other attorney services absent objective data -- i.e., "Best lawyer in town." Pre-screen the recommendations before they are posted.
  • LinkedIn allows listing "specialties" on the user profile, as well as areas of practice. The smart thing to do is leave these vague or blank so as not to violate ABA MPC 7.4.
  • The "Answers" feature allows attorneys to respond to questions that are posted generally. If voters constantly give the attorney's response a "best response" vote, LinkedIn designates the attorney as an "Expert," which may violate this rule.

The overall lesson? As a potential client, when shopping for an attorney or law firm, conduct a Google search and see what kind of social media footprint your prospective counsel has left. And on the flip side, monitor your own  footprint closely. You and your attorneys don't need to stay away from social media, merely be careful not to bare your "soles" too heavily. 

Wear shoes.

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Coming Soon, Part Two on the Ethical Pitfalls of Social Media: Even more ethical rules implicated by social media, and examples of attorneys -- and judges -- who have stepped into the muddy situations they create.

Googling and Tweeting and Facebooking, Oh My! Jurors Conducting Outside Research During Trial

The Internet and sites such as Twitter offer many opportunities to create more transparency in the justice system, beyond reporting by the mainstream media.  The University of Montana's blog / tweet project on the W.R. Grace trial is just one intriguing current example.  More on that fascinating endeavor here

But the increasing mobility of Internet access has other unintended consequences that cross into the E-Discovery arena.  The New York Times online posted a fascinating article  (note:  New York Times login required)highlighting the sharp increase in the number of jurors who violate the court's routine admonition not to conduct any outside research on the case.  A growing number of jurors are conducting Internet searches on their BlackBerrys or iPhones or sending "tweets" or blogging about the trial via the Internet - sometimes even while they are hearing evidence at trial.

This juror misconduct ranges from a juror "Googling" information regarding factual issues in the case, to a juror who posted periodic updates on the conduct of the trial to Twitter and Facebook.  And it's not just an isolated phenomenon.  In one case the New York Times article discusses, a juror in a federal criminal prosecution admitted that he had conducted outside research on the Internet.  Thinking this an aberration, and an issue that could be resolved simply by removing the offending juror from the jury, the trial judge questioned the other jurors on the panel.  Turns out eight other jurors had been doing the same thing!  The court had no other option but to declare a mistrial.

Trial judges have routinely instructed jurors for years not to conduct outside research.  And, in the past several years, judges have modified those instructions to include admonitions not to conduct any research via the Internet.  Nonetheless, the number of jurors violating those instructions - and causing mistrials or ripe issues for appeal - has grown as the ease and means of accessing information have grown.

Why is it a problem?  Let jurors do outside research and you might as well throw the Constitution and the Rules of Evidence out the window.  The exclusionary rule would have no meaning if jurors could just Google newspaper accounts of the investigation and perhaps even key documents, or read the notoriously easily manipulated articles on Wikipedia.

What is a trial lawyer to do?   We certainly don't want all juries sequestered, with their iPhones, BlackBerrys and laptops locked away in the custody of the court, for the duration of trial.  Some less-drastic alternatives:

  • Ask the trial judge to expand her boilerplate admonition to incorporate an explicit explanation of the policies behind the rule and the consequences of violating the rule.  Be prepared with your own draft admonition and submit it with your jury instructions. 
  • To the extent that the judge or your jurisdiction permits you to do so, use voir dire to (1) educate the panel regarding why they shouldn't do outside research, including Internet research, and (2) enlist the jurors in helping the court enforce that restriction. 
  • In Arizona, where I currently practice, jurors can submit questions to be asked of a given witness.  Sometimes those questions may clue you in that jurors are doing improper outside research.  Be alert to the possibility, and be prepared to ask the court to inquire.
  • Bone up on your e-discovery law, and be prepared to subpoena text message records, laptop hard drives and other ESI if you suspect juror misconduct created an appealable issue.

Finally, don't ignore the upsides and opportunities our wired age provides the diligent litigator.  As the NYT article notes, many trial attorneys now conduct their own Internet research on prospective jurors.  Look at those Facebook and MySpace pages.  Read those blogs, tweets, and websites.