“Legal Ethics: Social Media Edition”

I’ve written before about social media and the practice of law — How to Destroy a Legal Career with Facebook The Case of the Juror with the Twitchy Thumbs — the Oregon juror sanctioned for sending Tweets from the jury box, and Investigating with Social Media. And of course, I’ve written about other dumb things lawyers do. Today, I’m sharing a blog that combines the topics, from NW Lawyer, the Washington State Bar News blog.  Of course, your lawyer protagonist would never do such things, but the lawyer on the other side of a big case? The cute guy lawyer your protag used to see in the courthouse and now she wonders where he went — or why he’s now pulling espressos at Starbucks instead of working in the defender’s office?

“Legal Ethics: Social Media Edition


social mediaSocial media has potential pitfalls for everyone, but particularly lawyers. Take a look at these stories about lawyers using — and sometimes abusing — social media, and breathe a sigh of relief that you haven’t made any of these mistakes (you haven’t, right?)

About the Author

The Washington State Bar Association’s Office of Disciplinary Counsel (ODC) is responsible for reviewing, investigating and prosecuting grievances about the ethical conduct of Washington lawyers. Learn more about the ODC.”

Googling potential jurors

I’ve done it for years. When my law firm takes on a new case, I Google opposing parties and scour their websites. I Google our client. I look at what they post — publicly — on Facebook. I check for news accounts of the incident involved. I’ve discovered surprising things that weren’t in the files. No smoking guns, but useful information that helps me understand who and what we’re dealing with. I read the comments on news accounts to get a sense of the public perception, true or false. And if a case goes to trial, we do the same for potential jurors, to get a sense of who they are — and keep an eye out for any violations of the judge’s admonitions against talking about the case publicly during trial. Trials are expensive, emotional, and time-consuming — and a juror’s misconduct can torch years of effort.

Never, ever, though, would I go beyond the public wall to “friend” or “follow” a witness or potential juror. Like many other lawyers, I think it’s part of my obligation to my client to look at the information a person shares publicly, but to pry into private communications or to “friend” a witness on FB — even if they know, or should know, who we are — would clearly be an ethical violation.

The American Bar Association has now given a green light to the practice of looking at public information, such as corporate or individual websites, or public Facebook profiles. Whether lawyers can hire firms to do the research, essentially profiling a juror from their social media posts, is still an open question. Individual states and courts may, of course, approve or sanction the practice, but the ABA opinion is good guidance.

How will your characters use this tool — or break the rules?

How to Destroy a Legal Career with Facebook

I’ve written before about social media and the practice of law (The Case of the Juror with the Twitchy Thumbs — the Oregon juror sanctioned for sending Tweets from the jury box, and Investigating with Social Media). But two recent cases illustrate the dangers to lawyers of misusing Facebook and other social media.

A Montana lawyer, whom I do not know, filed a lawsuit on his own behalf against a construction company. According to this news account, he then threatened to harm the District Court judge assigned to his case and her house, on his Facebook page, apparently to get the judge to recuse herself from the case. Instead, he was charged with a felony count of obstruction of justice. He pleaded no contest to a misdemeanor count of violating the privacy of communications. According to the AP account, he received a deferred sentence and was ordered to turn in his license to practice law in Montana.  (Deferred sentences and lawyer discipline are both discussed in Books, Crooks & Counselors.)

Update, November 2016: The lawyer involved has contacted me twice, saying he made no threats and asking if I would like his side of the story. Since my purpose here is only to alert writers of potential story lines for plots, I am not engaging in any conversation with him, but have removed his name from the original post. Writers, remember that there are as many “sides” to a story as there are people involved. Remember, too, to explore your characters’ psychology and emotions, which drive their actions and as as important to a novel is as plot.   

And last year, in a case involving abuse of social media, a lawyer in Virginia named Matthew Murray was ordered to pay a fine of $542,000 and his client Isaiah Lester a fine of $180,000, with a $10 million dollar jury verdict in Lester’s favor, resulting from the death of his wife in a collision with a cement truck whose driver lost control, reduced nearly in half.

Why? “Spoliation of evidence,” meaning intentional destruction of evidence. After getting a discovery request for Lester’s Facebook pages and profiles, Murray directed him to “clean up” the account to remove any evidence that could damage the case — including pictures of Lester out at a bar with friends after his wife’s death wearing a T-shirt  “I [heart] hot moms” while holding a beer — and withholding the evidence from the opposition and the court. Judges get cranky about things like that.

An aspect of spoliation that might help you stir up trouble on the page: if evidence is destroyed and can’t be recovered, the law assumes that it would not have been favorable to the party who destroyed it — and so instructs the jury. (This is why any party who wants to do destructive testing, as in a products liability case, should get a court order or written consent from the other side, and often includes the other side’s expert in the testing.)

Murray also resigned as managing partner of his law firm and is under investigation by the Virginia State Bar.  More about the case, Allied Concrete Co. v. Lester, from bloggers here and here. Read the Virginia Supreme Court’s opinion here.

If you want to cause trouble for your fictional lawyer, try this at home.


Investigating with social media

Did you hear about the woman who stole a car and robbed a bank in Nebraska, then posted a YouTube video bragging about it? And calling herself “Chick Bank Robber”? Here’s the Omaha World Herald account, with the video.

Your fictional law enforcement officers and amateur sleuths simply must use social media. Why? Because we all do — including the crooks. Law enforcement agencies have units dedicated to social media investigation — and they’re searching for evidence in all kinds of cases, not just cybercrime. Many use online investigation services and databases, such as Leads Online, which calls itself “the nation’s largest online investigation system used by law enforcement to recover stolen property, help stop meth makers, reduce metal theft, and solve crimes.” This article in the Daily InterLake describes one police department’s use of the service to recover $20,000 worth of property in the first two months, justifying the $2,500 annual fee.

Law firms routinely search public profiles on Facebook, Twitter, Google+, YouTube, Pinterest, and other sources for public information on opposing parties, on their own clients — you gotta know what they’re really up to — key witnesses, and more. To my knowledge, all state bars and ethics committees that have addressed the issue have concluded that a lawyer and staff may not “friend” an opposing party or adverse witness to obtain information.

Pedophiles and probationers with sentences that restrict their use of computers sometimes post on Facebook. People claiming injuries — from workplace incidents, car accidents, and other causes — that limit their activities often post photos of a day skiing or riding snowmobiles. Dumb — but common.  Your fictional investigators should look.

According to the Next Gen eDiscovery Law & Tech blog, published cases involving social media jumped more than 85% in the first half of 2012 over the first half of 2011.  Next Gen also says 83% of LEO are using social media to investigate crimes. The blog is a good source of info on social media investigation, in both criminal and civil cases, and related legal issues.

And NPR reported recently on a Pennsylvania’s police department’s use of Pinterest to share mugshots of people wanted and to identify suspects from surveillance photos — with a dramatic increase in arrests and tips.

For writers, the possibilities are limitless. In S.J. Rozan’s On the Line (2010), PI Bill Smith enlists Lydia Chin’s hacker cousin Linus to help find and free Lydia–and Linus uses Facebook to share info and call on friends to help. It’s a great example–and a believable one.

But in a series, the challenge is to avoid repetitive plots. If your amateur sleuth uses Facebook to track down a witness or find a photograph that puts the suspect at the scene of the crime in Book One, she can’t do the same thing in Book Two. But you can’t ignore it, either.

How are your characters using social media?