Social networking sites and the legal profession: Balancing benefits with navigating minefields

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Social networking sites and the legal profession: Balancing benefits with navigating minefields Avnita Lakhani City University of Hong Kong School of Law, Hong Kong

abstract Keywords:

The purpose of this article is to review the impact of social networking sites on law, the

Social networking

legal profession and dispute resolution. Within a very short period of time, social net-

Social media

working sites such as Facebook, Twitter, and MySpace, combined with social networking

Dispute resolution

hardware platforms, such as iPad, iPhone, Blackberry, and Android, have infiltrated the

E-discovery

profession of law and dispute resolution. Many legal professionals now have a social

Admissibility of evidence

networking profile, use information on social networking sites as evidence, and interact

Model Rules of Professional Conduct

with other lawyers and judges through such forums. This increased interaction in a pub-

(MRPC)

lically accessible and viewable medium presents a challenge to the legal profession’s traditional ideas of independence, confidentiality, and rules of evidence. Social networking mediums are here to stay. Therefore, this article looks at how this trend affects law and the legal profession, what issues it presents to lawyers and judges, whether new laws are necessary to take into account the impact of social networking sites and the benefits of such technology in fostering access to justice and helping parties achieve justice. ª 2013 Avnita Lakhani. Published by Elsevier Ltd. All rights reserved.

1.

The statistical significance of social media

The Internet has opened new channels of communication and self-expression . Countless individuals use message boards, date matching sites, interactive social networks, blog hosting services, and video sharing websites to make themselves and their ideas visible to the world. While such intermediaries enable the user-driven digital age, they also create new legal problems. wFair Housing Council of San Fernando Valley v. Roommates. com, LLC 489 F.3d 921, 924 (9th Cir. 2007). Statistics show a clear rise in the use of social networking sites (also known as social media) for both professional and personal reasons. What started out as the use of social 1

networking sites for purely personal interactions has now transcended to professional organisations and networking. This article explores the implications of social media on law, dispute resolution and legal education. An online social network may be defined as “relationships that develop out of computer-facilitated discussions about shared ideas and common interests.”1 Online social networks emerge from the use of social networking sites. Boyd and Ellison define social networking sites as “web-based services that allow individuals to (1) construct a public or semi-public profile within a bounded system, (2) articulate a list of other users with whom they share a connection, and (3) view and traverse their list of connections and those made by others within the system.”2 Inherent in this definition are three primary functions of a social networking site. First, users create a unique personal or professional profile. Second, users can interact with other users who share similar interests. Third, users can join

Madeline Kriescher, Professional Benefits of Online Social Networking, 38 Feb Colo. Law. 61,61 (2009). Danah M. Boyd and Nicole B. Ellison, Social Network Sites: Definition, History, and Scholarship, 13(1) J. Computer-Mediated Comm. art. 11 (2007). 0267-3649/$ e see front matter ª 2013 Avnita Lakhani. Published by Elsevier Ltd. All rights reserved. http://dx.doi.org/10.1016/j.clsr.2013.01.008 2

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a community of users who share similar views and interests.3 Examples of the most popular social networking sites include Facebook, LinkedIn, MySpace, and Twitter. Social networking sites, by virtue of users sharing both personal and professional information, hold a wealth of information that can potentially be manipulated and used for a variety of reasons. The first category of information is private information in the form of instant messages, emails, photo albums, and contact information.4 This type of information is generally controlled by the user through privacy controls and filters. The second category can be classified as semi-private (or semi-public) information and includes information that is available to a select group of ‘friends’ or wider networks, such as ‘friends of friends’5 defined by the user.6 The third category of information is public information such as text, media, or other information available to the general public.7 Today, advertisers target social networking sites hoping to market their products and services to users. The next stage of evolution is to fully harness the power of social networking sites and its multi-million users to create a platform for the sale and purchase of goods and services. Over the last five to ten years, there has been a tremendous growth in the use of social networking sites by members of the legal profession.8 This includes the use of social networking sites by law professors and law students. In addition to over one-half of Americans having an online social profile,9 a 2010 Nielson survey conducted in the United States found that individuals devote nearly 22.7% of their online time to interacting on social networking sites, an increase of 43% over 2009 statistics.10 There are similar trends with respect to the use of social networking sites by legal professionals. In 2008, a survey commissioned by LexisNexis and Martindale.com surveyed approximately 650 US attorneys and found that nearly 50% of attorneys are members of an online social network.11 In 2009 LexisNexis conducted a survey of corporate counsel and found a 25% increase in the use of social networking sites by those working across corporate legal departments.12 Similarly, a 2009 study conducted by the American Bar Association found 3

Evan E.North, Facebook Isn’t Your Space Anymore: Discovery of Social Networking Websites, 58 U. Kan. L. Rev. 1278, 1284 (2010). 4 North, supra note 3, at 1288. 5 Note: The terms ‘friends’ and ‘friends of friends’ refer to terms used by Facebook. 6 North, supra note 3, at 1288. 7 Ibid. 8 Note: In this article, the term ‘legal professional’ means attorneys, lawyers, trial lawyers, solicitors, barristers, judges and related terms used to define members of the legal profession and those engaged in delivering legal and/or ADR services. 9 John G. Browning, Digging for the Digital Dirt: Discovery and Use of Evidence from Social Media Sites, 14 SMU Sci. & Tech. L. Rev. 465, 465e466 (2011). 10 What Americans Do Online: Social Media and Games Dominate Activity, Nielsen Wire (August 2, 2010), http://blog.nielsen.com/ nielsenwire/online_mobile/what-americans-do-online-socialmedia-and-games-dominate-activity/. 11 Kriescher, supra note 1, at 61. 12 Browning, supra note 9, at 467 (citing Survey Reveals Substantial Growth in Online Social Networking by Lawyers Over the Past Year, LexisNexis Product Corner, October 15, 2009), http://www.lexisnexis. com/community/lexishub/blogs/legaltechnologyandsocialmedia/ archive/2009/09/18/survey-reveals-substantial-growth-in-onlinesocial-networking-by-lawyers-over-the-past-year.aspx.

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that nearly 43% of lawyers surveyed were members of at least one social networking site, up from 15% in 2008.13 This was further confirmed by a 2009 study by Leader Networks, which confirmed that 71% of corporate counsel and 78% of private practice lawyers are members of an online social network.14 The primary advantages for participating in online social networks were for exchanging information and experiences with peers (48% by corporate counsel and 36% by private practice) or networking and increasing visibility amongst their peers (52% by private practice and 24% by corporate counsel). In February 2010, the American Academy of Matrimonial Lawyers conducted a similar study and found that 81% of attorneys use social networking sites to gather evidence from social networking sites.15 Nearly 66% of these attorneys reported using Facebook to gather such information.16 In February 2012, the International Bar Association (IBA) published a report on the findings of a survey aimed at assessing the impact of social networking sites on the legal profession.17 The methodology of the IBA survey consisted of surveying bar organisations who are also members of the IBA. The survey sought the views of the bar associations on matters including, but not limited to the following: 1) whether judges, lawyers, and jurors interacted on social networking sites; 2) whether online postings or comments were personal in nature or involved specific cases; 3) the effect of online communications on lawyereclient relationships; 4) the potential use of online information as evidence; 5) whether legal employers used the information found on a candidate’s online profile when evaluating the candidate; and 6) the public perception of lawyers and judges with respect to their use of online social networking.18 All IBA-member bar associations were invited to complete the survey, either through an online survey or via email.19 In addition, the survey was available in English, Spanish, and French.20 The IBA received responses from 60

13

Steven C Bennett, Ethics of Lawyer Social Networking, 73 Alb. L. Rev. 113, 113 (citing Reginald F Davis, Getting Personal: Social Networks Appeal, but Not to the Firm, 95 A.B.A. J. 30, 30 (2009)). 14 Leader Networks, 2009 Networks for Counsel Study: A Global Study of the Legal Industry’s Adoption of Online Professional Networking, Preferences, Usage, and Future Predictions (2009) http://www.leadernetworks.com/downloads/Networks_for_ Counsel_2009.pdf. 15 Browning, supra note 9, at 467 (citing Big Surge in Social Networking Evidence Says Survey of Nation’s Top Divorce Lawyers, Facebook is Primary Source for Compromising Information, American Academy of Matrimonial Lawyers, (Feb. 10, 2010), http://www.aaml.org/about-the-academy/press/press-releases/ e-discovery/big-surge-social-networking-evidence-says-survey-). 16 Ibid. 17 See generally, International Bar Association, The Impact of Online Social Networking on the Legal Profession and Practice (February 2012), http://www.ibanet.org/Committees/Divisions/ Legal_Practice/Impact_of_OSN_on_LegalPractice/Impact_of_OSN_ Home.aspx (hereinafter ‘IBA Report’). Note: While the survey was distributed to member associations internationally, the report notes that “the sample of respondents is not statistically representative of all bar organisations around the world, but strictly IBA member ones. ” (Ibid. at 10) (emphasis in the original). 18 IBA Report, supra note 17, at 7e9. 19 IBA Report, supra note 17, at 9. 20 Ibid.

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IBA-member bar association across 47 jurisdictions.21 While the results are “not statistically representative of all bar organisations around the world”,22 the results are important with respect to potential global trends and issues about the impact of social networking sites on the legal profession. The following is a full copy of the summary of the key findings from the IBA survey:
“Over 90 per cent of respondents found that online social networking presents a new set of challenges for the legal profession.
Almost 70 per cent of respondents felt that it is acceptable for lawyers and judges to have each other as contacts on online social networks.
Over 90 per cent of respondents considered it unacceptable for lawyers and judges to post comments or opinions about fellow lawyers, judges, parties, or cases in progress on online social networks.
While a majority of respondents found it unacceptable for lawyers, judges, and jurors to post updates about proceedings (by posting ‘status updates’, ‘tweeting’, blogging, etc) on online social networks while a matter is pending before the courts strictly for informational purposes, the majority deemed the conduct acceptable for journalists.
Over 85 per cent of respondents deemed it acceptable for lawyers to access and use the information found on the online social networking profiles of the parties in a case, which forms part of the public domain, as evidence in proceedings.
Nearly 95 per cent of respondents from jurisdictions containing a jury system thought that, in addition to routine instructions, jurors should receive specific instructions limiting their online communications and use of online social networking sites.
Only 15 per cent of respondents felt that lawyers’ use of online social networks negatively affects the public’s confidence in the integrity and professionalism of the legal profession.
Almost 40 per cent of respondents felt that judges’ use of online social networks negatively affects the public’s confidence in the integrity and impartiality of the judiciary, thereby undermining judicial independence.
85 per cent of respondents thought that law students should be informed by their law schools as to the potential risks and disadvantages associated with the use of online social networking within the legal profession.
Over 75 per cent of respondents considered the advantages of online social networking to outweigh its disadvantages.
95 per cent of respondents thought that lawyers, judges, and law students could benefit from a training course discussing guidelines for the use of online social networking within the legal profession and practice.
80 per cent of respondents stated that there is a need for ethical/professional codes and standards to be adapted to online social interactions affecting the legal profession and practice, as they cannot be adequately applied in their current form. 21 22

Ibid. Ibid.


Over 90 per cent of respondents stated that there is a need for bar associations, societies, and councils, or, alternatively, for the IBA to construe guidelines regarding the use of online social networking sites within the legal profession and practice.”23 The IBA survey confirms that both law students as well as legal professionals use social networking sites for a variety of reasons, not the least of which is the benefits of professional networking. In addition, the IBA survey confirms that the legal profession has special duties both to its members in terms of competent representation and confidentiality and to the public in terms of professionalism, judicial independence, and perception of integrity in the justice system. These are important considerations and must not be compromised at the expense of following a trend in the use of social networking sites. In reality, social networking sites present a special challenge to the profession of law and dispute resolution because of the role of legal professionals as officers of the court acting in the public interest. In addition to active law practitioners, an increasing number of law faculty and law students have an online social networking presence24 yet students also have a different and sometimes negative attitude towards a professor who has a social networking presence.25 Suffolk University Law School conducted a survey of all students and found that “84% of the students responding had a Facebook account, 44% had a LinkedIn account, 17% had a Twitter account, and 10% reported not using social networking.”26 Fink’s study of the use of social networking sites by law students revealed that, among the 121 respondents out of approximately 330 students in total, 81.8% were active Facebook users, 4.9% had an inactive Facebook

23 IBA Report, supra note 17, at 12. Note: This is copied directly from the IBA report. 24 See generally, Eric M. Fink, Law School & The Web of Group Affiliation: Socializing, Socialization, & Social Network Site Use Among Law Students 27 John Marshall J. of Computer & Information Law 325e348 (2010). Available at: http://works.bepress.com/eric_fink/3 (a study focusing on the use of social networking sites among law students). 25 See Anne Hewitt and Andrea Forte, “Crossing Boundaries: Identity Management and Student/Faculty Relationships on the Facebook.” (A paper presented at Computer Supported Cooperative Work 2006, November 4e8, 2006, Banff, Alberta, Canada). Available at http://www.andreaforte.net/HewittForteCSCWPoster 2006.pdf (noting that this study was not conducted in law schools but in two large courses at a mid-size US public research university. In addition, the study also found that a student’s Facebook interaction with professors had an overall positive effect); Patricia Nemetz, Kirk Damon Aiken, Vance Cooney and Vincent Pascal, Should Faculty Use Social Networking to Engage with Students?, 20(1) Journal for Advancement of Marketing Education 19e28 (2012) Available at: http://www.mmaglobal.org/JAMEArchive/JAME_Vol20_2/Should%20Faculty%20Use%20Social%20 Networks%20to%20Engage%20with%20Students.pdf (survey administered o 458 students at a medium-sized US university; results confirm that students ‘are also more negative towards a professors’ social presence’). 26 Kathleen Elliott Vinson, The Blurred Boundaries of Social Networking in the Legal Field: Just “Face” It, 41 U. Mem. L. Rev. 355, 375e376, n. 74.

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account, and 13.2% reported never having a Facebook account.27 The proliferation of social networking among young adults means that future legal professionals may have “a muchreduced sense of personal privacy” and increased comfort with social media without being aware of unintended consequences.28 This can be problematic because, as Vinson and Gillers explain, law students do not fully realise that they are entering “a profession governed by centuries of legal tradition”29 and this conservative profession has a culture that is bound by professional conduct rules that require “privacy, confidentiality, and conservatism”,30 values which are in direct conflict with the unabashed, full disclosure culture of most social networking sites. Determinations about a law student’s legal competence and fit for practice are made well before entering the legal profession. As such even law faculty and law students who engage in online social networks need to beware of potential issues. The purpose of this article is to examine some of the issues highlighted by the IBA survey, including the use of social networking sites for e-discovery, evidence gathering, the ethical implications, and implications for dispute resolution. Section 2 of this article discusses some of the key benefits to the legal profession in using social networking sites. Section 3 analyses the implications of social networking sites on ediscovery and admissibility into evidence. Section 4 presents recommendations on balancing the need to reap the benefits of social networking sites with the potential minefield of legal and ethical issues affecting law, dispute resolution and legal education. Finally, Section 5 provides concluding remarks about the need for the legal profession to balance trends in the use of social media with the responsibilities of ensuring competent, fair and impartial administration of justice.

2. Benefits of social media for the law and dispute resolution Before tackling the issues and implications associated with the use of social networking sites, one must understand the attraction that leads practitioners, professors and students to reveal personal details and engage in open and frank disclosure of their lives and opinions. The IBA survey of legal professionals found that, in the context of legal profession and practice, 78% of respondents stated that the benefits of online social networking far outweigh the disadvantages.31 In slight contrast but consistent with prior studies on students’ use of social networking sites, Fink’s study on the use of Facebook by law students found that law students primarily used Facebook “to keep in touch with existing friends (99% of respondents) and to reconnect with old friends (82% of respondents)”32 rather than to make new friends or as a means to develop business contacts. 27

Fink, supra note 24, at 334. John Schwartz, The Legal Battle: Online Attitude Vs. Rules of the Bar, N.Y. Times, Sept. 12, 2009, www.nytimes.com/2009/09/13/us/ 13lawyers.html. 29 Ibid. (quoting Professor Stephen Gillers, an expert on legal ethics at New York University). 30 Vinson, supra note 26, at 376. 31 IBA Report, supra note 17, at 29e30. 32 Fink, supra note 24, at 341e344. 28

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Furthermore, Fink’s study revealed that while 60% of respondents were members of a law-student oriented Facebook pages, the “most popular and active groups are those devoted to humorous banter about law school studies, social life, and personalities”33 while those dedicated to actual academic pursuits and practical groups such as law book clubs, case reviews, and law school activities and events were less populated or became dormant over time.34 To this end, Fink concludes that law students in the study have not embraced the potential to use social networking sites, Facebook in particular, as “virtual spaces for substantive communications and collaboration among students in relation to their studies.”35 The results of the IBA Survey in particular are consistent with legal scholars and organisations who understand that, while social networking sites present challenges with respect to rule of law, public confidence in the administration of justice, independence, and integrity of the system, such challenges can be dealt with through proper training and guidelines36 and do not undermine the benefits of using online social networking sites. First, social networking sites foster greater professional networking and legal discussion. The survey commissioned by LexisNexis and Martindale.com also revealed that nearly 40% of the 650 attorneys surveyed would join a social networking site that is specifically designed for legal professionals.37 Among the benefits discussed by the IBAmember bar associations include harnessing social networking sites to make new contacts, to keep abreast of changes in the law, to provide a forum for legal discussion,38 and to create additional avenues for marketing, advertising and brand awareness.39 A second benefit of social networking sites is competitive advantage as well as competitive intelligence. Lawyers, judges, and law students can gain a competitive advantage by interacting with law firms on social networking sites, engaging in legal discussion forums, and using professional networking to enhance visibility of expertise and rainmaking (business development). In addition, competitive advantage can be fostered through the use of an internal social network. Kriescher states that an internal social network is a particularly useful way to “multiply intellectual capital.thus 33

Fink, supra note 24, at 341e344. Fink, supra note 24, at 343e344. 35 Ibid. 36 IBA Report, supra note 17, at 30 (80% of respondents said lawyers, judges, and law students would benefit from a training course on guidelines for using online social networking sites). 37 Kriescher, supra note 1, at 61e62. 38 See, e.g, Judge Gena Slaughter and John G Browing, Social Networking Dos and Don’ts for Lawyers and Judges, 73 Tex. Bar J. 192 (advocating for the use of social networking sites for exchanging information and ideas with colleagues as well as participating in discussion forums). 39 IBA Report, supra note 17, at 29e30 (Compare with the views of 22% of respondents who stated that there are more disadvantages unless and until there are explicit rules guiding online behaviour and lawyers and clients are told of the ramifications of online postings). This speaks to people’s perceptions that their online world is separate from their ‘real’ life and thus expects a level of privacy that the law does not recognise. 34

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increasing social cohesion, amplifying innovation, and creating a collective memory and a place to store and share knowledge and ideas.”40 Rushing argues that social networking sites also provide a rich source of competitive intelligence. Competitive intelligence is defined as “the action of gathering, analyzing, and applying information about products, domain constituents, customers, and competitors for the short term and long term planning needs of an organisation”. Competitive intelligence (CI) is both “a process and a product.”41 The process part of CI involves mining and analysing the breadth and depth of information available through such sites as Facebook, Twitter, Ning and microblogs.42 The product aspect of CI may include a trend analysis of important legal issues being discussed by leaders in the field, a new business opportunity, as well as “intelligence reports with actionable findings relating to firm leadership’s key business strategies and development goals.”43 Competitive intelligence is also relevant in recruiting. Law firms with a Facebook profile can post information about their firm as well as send invites to events. At the same time, law firms may also view the profiles of potential candidates and use this for recruiting or evaluating potential candidates.44 A third major benefit of social networking sites is the opportunity to grow and improve business development activities.45 Firm partners and other leaders can use social networking sites to “to generate prospective client leads, strengthen existing client relationships, monitor clients’ activities and those of their competitors”46 as well as conduct due diligence on clients. A complementary benefit to business development or perhaps a precursor to it is the use of social networking sites to both reach one’s community and keep in touch with what is happening within the community.47 By being in touch with the community, there is a greater chance that an online contact can lead to a real business opportunity as well as create more positive perceptions about lawyers and the legal system.48 Finally, social networking sites offers benefits to legal education such as providing a means to increase and reinforce brand awareness, educate students about the university or faculty, communicate with students, market programmes, courses and events, increase fundraising opportunities and professional networks, disseminate information, and serve as

40

Kriescher, supra note 1, at 62. Emily C. Rushing, Social Media Tools for Law Firm Competitive Advantage, 72 Tex. Bar J. 552, 553 (2009). 42 Rushing, supra note 41, at 553. 43 Ibid. 44 Stephen G Charkoudian and Kenda J Stewart, Law Firm Added You as a Friend, 53 Feb Boston Bar J. 14, 14e15 (2009). 45 Slaughter and Browning, supra note 38, at 192 (discussing the benefits of social networking to market oneself, one’s practice, for professional development and political advantage). 46 Charkoudian and Stewart, supra note 44, at 15. See also Katheryn A Andresen, Marketing through Social Networks: Business Considerations e From Brand to Privacy, 38 Wm. Mitchell L. Rev. 290, 302e305 (discussing ways to use social networking sites for marketing and business expansion). 47 James Cool and Thomas Young, Doing Well by Doing Good, 45 AUG Trial 32 (2009) (discussing how social networking sites can help dispel the myth of lawyers as disconnected or ambulance chasers and create a greater connection to the community). 48 Cool and Young, supra note 47, at 32. 41

a tool for helping law students through the socialisation process of entering the legal profession.49 For law students, there is an untapped potential for using social networking sites to increase learning and professional development by creating and engaging in online study groups, networking with other legal professionals, being mentored by a faculty member, and reducing isolation by connecting with classmates and shared interest groups. For professors, social networking sites may have both social and pedagogical benefits, so long as faculty understand and do not blur the boundaries and responsibilities inherent in the studentefaculty relationship. As Vinson describes it, faculty “still need a modicum of distance and professionalism in both the real and online worlds.”50 As long as faculty have guidance with potential issues related to professionalism, impartiality, fairness, and ethics, the use of social media can offer many opportunities to create ‘teaching moments’, foster collaborative learning, increase student engagement, and provide teaching and learning opportunities outside the time and space restrictions of a physical classroom. For the legal profession and legal education, even while the above benefits may outweigh the costs, the disadvantages associated with the use of social networking sites must be considered seriously and addressed effectively in order to ensure that public confidence in the legal system is not compromised at the expense of being ‘social’ or ‘friendly’.

3.

Implications for e-discovery and evidence

In many ways, the proliferation and success of social networking sites has ushered in the digital age as well as the age of electronic evidence (also referred to as ‘digital evidence’), both of which have created a virtual gold mine51 for prosecutors, defence attorneys, administrators, jurors, and the courts. The term ‘e-discovery’ is the use of electronic evidence in civil litigation52 but may also apply to the use of electronic 49

Vinson, supra note 26, at 375. Vinson, supra note 26, at 382e383. See also Hewitt and Forte, supra note 25 (finding a disparity between the attitudes of female and male students with respect to faculty on social networks. In effect, one-third of all students did not think faculty should be on Facebook and two-thirds of female students did not approve of faculty having a presence on Facebook, stating that the “student/ faculty relationship should remain professional and should not be familiar or sociable.” Ibid. at 2); Nemetz et al., supra note 25, at 24e25 (discussing results related to professors on social networking sites and finding that “students are not overwhelmingly negative about faculty presence on their social networks, but are not particularly enthusiastic about their presence for educational purposes either. When professors stray past social boundaries and invade students’ social space, however, more connected (less independent) students are more upset than independent students.”). 51 See, for example Ronald J. Levine andSusan L. Swatski-Lebson, Whose Space? Discovery of Social Networking Web Sites Prod. Liab. L. & Strategy (L.J. Newsl., New York, N.Y. Nov 2008) at 7, 11 (calling social networking sites and the information posted on them “a virtual information bonanza about a litigant’s private life and state of mind.”). 52 John S. Wilson, My Space, Your Space, or Our Space? New Frontiers in Electronic Evidence, 86 Or. L. Rev. 1201, 1203 (2007). 50

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evidence in criminal litigation as well as other forms of dispute resolution such as conciliation, mediation, and arbitration, though in these latter forms, the use and extent of e-discovery may be limited and not subject to rules of the court. Scheindlin and Rabkin defined electronic evidence as “any electronically-stored information subject to pretrial discovery.”53 This includes any data which is stored digitally, optically or in analogue form, such as back-up tapes, data files on computers, laptops, smart phones, tablets, palm pilots, portable media such as zip drives and USBs, and similar devices.54 Unless otherwise noted, the analysis in this section is from the perspective of the common law jurisdiction of the United States due to its extensive research, rules, and case law on the subject matter. As such, it provides a useful comparative perspective to other common law and civil law jurisdictions. Civil as well as criminal litigation is now transformed through the use of e-discovery and admissibility of social media communications as evidence. Attorneys in family law (child support and custody issues), personal injury, employment law, professional responsibility cases, criminal law, and non-economic damage cases use information posted on social networking sites as supporting evidence.55 In part, the very nature and purpose of social networking sites, both as a means of full self-disclosure and as a free, readily available means for sharing personal details, events, preferences, and relationships with others, contributes to discoverability and evidence. The most important contributing factor is likely the false sense of total privacy that users believe they have on social networking sites, something which leads them to think and act differently in the real world than they do in the virtual world.56 While social networking sites may offer various privacy settings, most users either do not consciously alter the privacy settings or tend to adopt the default ‘public’ setting, meaning that all information posted on the social networking profile is in the public domain. Furthermore, even where a ‘private’ setting is used, private information may inadvertently be disclosed or subject to public disclosure if required by law. In addition, particularly for Facebook, even where a user deactivates the account, the

53 Hon. Shira A. Scheindlin and Jeffrey Rabkin, Electronic Discovery in Federal Civil Litigation: Is Rule 34 up to the Task?, 41 B.C. L. Rev. 327, 333 (2000). 54 J Wilson, supra note 52, at 1204 n 6 (citing Joan E. Feldman and Rodger I. Kohn, The Essentials of Computer Discovery, 564 PLI/Pat 51, 57 (1999)). 55 North, supra note 3, at 1287; Andrew C. Payne, Twitigation: Old Rules in a New World, 49 Washburn L. J. 841, 841 (2010); Scott R. Grubman and Robert H. Snyder, Web 2.0 Crashes Through the Courthouse Door: Legal and Ethical Issues Related to the Discoverability and Admissibility of Social Networking Evidence, 37 Rutgers Computer & Tech. L.J. 156, 166e188 (2011). 56 Deborah Jones Merritt, Social Media, the Sixth Amendment and Restyling: Recent Developments in the Federal Laws of Evidence, 28(1)(Art 4) Tuoro L. Rev. 27, 45e46 (2012) (discussing five factors which have made social media communications a significant part of evidence in the courtroom, including the highly indiscreet way in which users post information online). See also Fink, supra note 24, at 347 (discussing how law students have a reduced sense of privacy and “often act in an exhibitionist manner on Facebook”).

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information may still be backed up and subject to discovery.57 Second, social media communications are easy to find, primarily because such messages “reach wide audiences and they persist”58 perpetually in the public domain in some shape or form. Finally, as evidenced by case law from the United States as well as United Kingdom, online social media communications are not generally regarded as ‘private’,59 not regarded as fundamentally different from off-line communications,60 and not considered privileged. Furthermore, such information is easily admitted into evidence and carries great weight in the courtroom as contemporaneous demonstrations of a litigant’s state of mind and actions with respect to guilt or liability.61 Judges, in applying the jurisdiction’s rules of evidence, are the gatekeepers for determining the extent to which e-discovery will lead to admissible evidence. Information from social networking sites must pass the test of ‘discoverable information’ as well as the tests of relevance, authentication, and not being hearsay for admissibility as evidence. First, information that lawyers seek to admit into evidence must be discoverable information under the laws of the applicable jurisdiction. For example, subject to the limitations of Rule 26(b)(2)(C) of the Federal Rules of Civil Procedure (FRCP), Rule 26(b)(1) of the FRCP states that the scope of discovery (i.e., discoverable information) includes “.any nonprivileged matter that is relevant to any party’s claim or defense.”.62 As long as there is good cause, rule 26(b)(1) of the FRCP gives courts the discretion to “order discovery of any matter relevant to the subject matter involved in the action.” This definition is also broadly construed. With respect to social media information, as long as the information is

57 North, supra note 3, at 1288 (discussing three categories of info found on social networking sites as well as Facebook’s default setting that most information is still public regardless of privacy settings); Payne, supra note 55, at 847. 58 Merritt, supra note 56, at 46. 59 Payne, supra note 55, at 851 n 91 (citing Anti-Monopoly, Inc. v. Hasbro, Inc., No. 94 Civ. 2120, 1995 WL 649934, at *2 (S.D.N.Y. Nov. 3, 1995) (stating that as a matter of “black letter law”, the rule is that “computerised data is discoverable if relevant”); Bills v. Kennecott Corp, 108 F.R.D. 459, 463e64 (D. Utah 1985) (stating “information stored in computers should be as freely discoverable as information not stored in computers”)). 60 Kathrine Minotti, The Advent of Digital Diaries: Implications of Social Networking Websites for the Legal Profession, 60 S.C. L. Rev. 1057 (arguing that information on social networking sites should not be treated differently in terms of evidence and that the Federal Rules of Civil Procedure (FRCP) through its guidelines on electronically sourced information (ESI), the Federal Rules of Evidence (FRE) and case law on traditional forms of evidence provide sufficient guidance to handle issues related to information from social networking sites). Cf Payne, supra note 55, at 842, 862e870 (2010) (arguing that there is a ‘meaningful difference’ between traditional ESI under the 2006 FRCP and social networking information and provides four key distinctions as well as recommendation on why courts should depart from FRCP). 61 Merritt, supra note 56, at 46e47. 62 Sandra Hornberger, Social Networking Websites: Impact on Litigation and the Legal Profession in Ethics, Discovery, and Evidence, 27 Touro L. Rev. 279, 293e294 (2011).

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relevant to the subject matter of pending litigation or issues relevant to the litigation, it is considered to be discoverable.63 Sankovitz, Grenig, and Gleisner identify two main discovery issues with respect to social networking sites: “1) whether the person who posted the information has any right to shield posts from discovery; and 2) whether the operator of a social networking site has any duty to respond to discovery request.”64 With respect to the first issue, courts in the US generally do not consider social networking posts or information on a person’s social networking profile to be privileged so under the language of FRCP, they are ‘nonpriveleged matter’ and discoverable. For example, the court in Mackelprang v. Fidelity Nat’l Title Agency of Nevada, Inc.65 held that the defendant can compel plaintiff to produce “relevant and discoverable email communications” from plaintiff’s MySpace account. In Bass ex rel. Bass v. Miss Porter’s School,66 the defendant was entitled to discovery “of the entire Facebook record, [including] ‘750 pages of wall postings, messages, and pictures’” because the court found these were relevant to issues in litigation. In Ledbetter v. Walmart Stores Inc.,67 the district court denied plaintiff’s request for a protective order under FRCP Rule 26(c) of all information posted on Facebook, MySpace, and Meetup.com and held that the information was discoverable by the defendant and relevant to the litigation. Finally, the court in EEOC v. Simply Storage Mgmt.68 allowed for a limited scope of discovery of information posted on the plaintiff’s MySpace and Facebook account. With respect to arguments about a user’s expectation of privacy, Justice Harlan’s concurring decision in Katz v United States69 established the modern test of privacy. First, the user must have had a subjective expectation of privacy and second, that expectation must be one which society is “prepared to recognise as reasonable.”70 With respect to social media postings, courts balance a user’s reasonable expectation of privacy with probative value and generally favour discovery and production where the information is “reasonably calculated to lead to the discovery of admissible evidence as is relevant to the issues in the case.”71 On balance, while there are some differing opinions across jurisdictions, the general rule appears to be that a person

63

Ibid. Hon. Richard J. Sankovitz, Jay E. Grenig, and William C. Gleisner III, Panning for Gold: Social Networking’s Impact on E-Discovery, 84-FEB Wis. Law. 12, 15. 65 Mackelprang v. Fidelity Nat’l Title Agency of Nevada, Inc., No. 2:06-cv-00788-JCM-GWF, 2007 WL 119149 at 8 (D. Nev. Jan. 9, 2007). 66 Bass ex rel. Bass v. Miss Porter’s Sch., No. 3:08cv1807(JBA), 2009 WL 3724968, at *1 (D. Conn. Oct. 27, 2009). 67 Ledbetter v. Walmart Stores Inc., 2009 WL 1067018 (D. Colo. Apr. 21, 2009). 68 EEOC v. Simply Storage Mgmt., 2010 U.S. Dist. Lexis 52766 (S.D. Ind. May 11, 2010). 69 Katz v. United States, 389 U.S. 347 (1967). 70 J Wilson, supra note 52, at 1234 (citing Katz v. United States, 389 U.S. 347, 360e61 (1967) (Harlan, J., concurring)); North, supra note 3, at 1297 (citing Guest v. Leis, 255 F.3d 325, 333 (6th Cir. 2001)) (courts generally an objective test of “whether a reasonable person would expect the information to remain private.”). 71 Ledbetter v. Wal-Mart Stores, Inc., No. 06-cv-01958, 2009 WL 1067018 at *2 (D. Colo. Apr. 21, 2009).

cannot have or assume a reasonable expectation of privacy with respect to information posted on a social networking site since that very act of posting information on the Internet, a public medium, puts the information in the public domain, one way or another.72 If that information is relevant and has greater probative value than a prejudicial effect, the information will be considered admissible as long as it is properly authenticated. Critics such as Payne argue that old rules established in Web 1.0 should not apply to new technology and standards in the Web 2.0 world, especially with respect to a social networking site user’s expectation of privacy. Payne argues that courts should understand that a user on a social networking site can use the site’s internal privacy controls to change the character of the information from public to private. As a result, the court should “apply a more nuanced analysis”73 that takes into consideration the user’s privacy setting and conscious intent to keep certain information out of the public domain. Using the privacy control settings as a foundation, Payne concludes that the court should then apply “an objective test to determine whether a social-networking user should have expected the information to remain private”74 instead of a blanket prohibition of privacy for information on social networking sites. Whether courts will adopt these recommendations across the board remains to be seen. In the meantime, users of social networking sites should not assume or expect a level of privacy and should only reveal information with the understanding that the information is likely to be considered discoverable evidence. In addition to discoverability and relevance, information from social networking sites has to be authenticated and not be inadmissible hearsay75 in order to such information to be admitted into evidence. With respect to authentication, rule 901(a) of the Federal Rules of Evidence (2012) (FRE) states that to fulfil the authentication requirement or identifying an item of evidence, the litigant “must produce evidence sufficient to support a finding that the item is what the proponent claims it is.”76 While the FRE does not directly address social media information, authentication of such information can be done by meeting the standards set out in FRE rule 91(b)(4), namely by looking at the distinctive characteristics of social media postings such as appearance, contents, substance,

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72 See, for example Moreno v. Hanford Sentinel, Inc., 91 Cal. Rptr. 3d 858, 862e63 (Cal. Ct. App. 2009); People v. Liceaga, No. 280726, 2009 Mich. App. Lexis 160, at *1, (Mich. Ct. App. Jan. 27, 2009) (probative value of admitting MySpace evidence was not substantially outweighed by the unfair prejudice. Ibid. at *10); In re K. W., 666 S.E.2d 490, 492e95 (N.C. Ct. App. 2008); Dexter v. Dexter, No. 2006-P-0051, 2007 WL 1532084, at *6e7 & n. 4 (Ohio Ct. App. May 25, 2007). Note, however, that criminal cases may be different and trigger Fourth Amendment issues. As such, government officials need to comply with requirements such as obtaining a warrant. 73 Payne, supra note 55, at 64. 74 Payne, supra note 55, at 869e870. 75 Federal Rules of Evidence (2012) Rule 801(c) (“Hearsay” means a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.). 76 Federal Rules of Evidence (2012) Rule 901(a) (Authenticating or Identifying Evidence).

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internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.”77 Social media evidence has two elements, both of which must be authenticated. The first part is the ‘content’, which is the original communication in the Internet or cloud-based storage environment.78 The second is the ‘tangible download’, which is the printed copy of original communication that one downloads off the Internet.79 The party wanting to introduce social media postings into evidence must “introduce evidence sufficient to support a finding (1) that the original communication is what the proponent claims and (2) that the tangible download accurately reflects the original message.”80 Merritt suggests that the social media content can be authenticated by presenting testimony by a “Witness with Knowledge”81 or by referring to the content’s “Distinctive Characteristics”.82 Courts do recognise that emails and social media content can have distinctive characteristics such as the real name, user name, photos, user’s geographic location, education, qualifications, birth date, and other relevant information sufficient to identify the person.83 Because users tend to freely share personal information, there is a virtual plethora of information that can be used to authenticate the information. In terms of authenticating the tangible download, Merritt advises that a written affidavit from the person who produced the download is sufficient.84 In addition, the person who created the download can testify as a witness with knowledge. The Massachusetts court in Commonwealth v Purdy85 provided additional guidance. First, where the posting is on a shared computer or shared MySpace page, the author should testify as to its authenticity.86 Second, the litigating parties can “search the computer of the person who allegedly created the profile”87 perhaps using forensic services to assist in the authentication process.88 Third, the

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Federal Rules of Evidence (2012) Rule 901(b)(4) (Distinctive Characteristics and the Like). 78 Merritt, supra note 56, at 52e53. 79 Ibid. 80 Ibid. 81 Federal Rules of Evidence (2012) Rule 901(b)(1) (Testimony that an item is what it is claimed to be). 82 Federal Rules of Evidence (2012) Rule 901(b)(4) (Distinctive Characteristics and the Like). 83 Merritt, supra note 56, at 53 n 136 (‘Cf United States v. Safavian, 435 F. Supp. 2d 36, 40 (D.D.C. 2006) (emails may be authenticated by d distinctive characteristics “such as d the name of the person connected to the address, . the name of the sender or recipient in the bodies of the e-mail, in the signature blocks at the end of the e-mail, . and by signature of the sender”’)). See also David I. Schoen, The Authentication of Social Media Postings, PROOF (May 2011). 84 Merritt, supra note 56, at 53 n 138 (‘Cf In re Homestore.com, Inc. Sec. Litig., 347 F. Supp. 2d 769, 782.83 (C.D. Cal. 2004) (finding that mere “[p]rintouts from a web site. are not enough for authentication purposes; rather, a “statement or affidavit from someone with knowledge is required”’)). 85 Commonwealth v. Purdy, 459 Mass. 442, 945 N.E.2d 372, 379 (Mass. 2011). 86 Nadine R. Weiskopf, Social Media Continues to be a Challenge for E-Discovery, 14 No. 10 Lawyers J. 4, p 3 (2012). 87 Weiskopf, supra note 86, at 3 (quoting Commonwealth v. Purdy, 459 Mass. 442, 945 N.E.2d 372, 379 (Mass. 2011)). 88 Weiskopf, supra note 86, at 3.

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information can be obtained from the social media provider, though this is less likely given the privacy policies of most social networking services providers as well as protection of such providers under the Stored Communications Act (SCA).89 As the above analysis indicates, information from social networking sites is generally discoverable information and readily authenticated. Courts usually find the information relevant as well as more probative than unduly prejudicial. As discussed in prior sections, lawyers, judges, jurors, law professors, and law students use social networking sites as much as lay persons. In so doing, these current and future members of the legal profession are bound by the same rules. Therefore, current case law and events provide many lessons learned with respect to how the legal profession can avoid the potential minefield of improperly using social networking sites.

4. Recommendations for navigating the minefields of social media Practitioners and other members of the legal profession are not immune from the potential minefields associated with using social networking sites. Practitioners are subject to professional codes of conduct, are considered officers of the court, have a duty of competent representation to clients90, must abide by a duty of confidentiality with clients under an attorneyeclient privilege, and are tasked with the proper administration of justice in the interests of the public. In this capacity, there is a greater responsibility in using social networking sites as well as potentially serious consequences. Attorneys should exercise good judgment in avoiding potential ethics violations under the jurisdiction’s professional code of conduct. For example, in the US, the Model Rules of Professional Conduct (MRPC)91 provide the minimum standard of professional conduct for a variety of ethical issues and will be used here as a point of comparison to highlight ethical issues. Under the MRPC, there are at least seven major areas where an attorney needs to exercise care with respect to social media.

89 Stored Communications Act 18 U.S.C. xx 2701e2712 (2012). See also Sankovitz et al., supra note 64, at 4e5 (citing Crispin v Christian Audigier Inc 717 F. Supp. 2d 965 (M.D. Cal. 2010) where several defendants tried to obtain discovery of email communications directly from the social networking site (SNS) provider. The court held that the electronic communications stored with the SNS provider were protected under SCA if the email communications were ‘configured as private’ Ibid. at 989. However, according to the court, webmail and private messaging are inherently private. Ibid. at 991.). 90 See for example, Model Rules of Professional Conduct (2012) Rule 1.1. 91 American Bar Association, ABA Model Rules of Professional Conduct: State Adoption of Model Rules, http://www.americanbar.org/ groups/professional_responsibility/publications/model_rules_of_ professional_conduct.html (Note: As of 2012, California is the only state that has not adopted the format of the ABA MRPC).

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First, MRPC Rule 1.1 states that a lawyer has a duty of “competent representation to a client.”92 Competent representation includes legal knowledge, skills, thoroughness and preparation.93 In addition, under MRCP Rule 1.3, a lawyer should “act with reasonable diligence and promptness in representing a client.”94 In the digital age, this includes being familiar with social media and advising clients on the impact of using social networking sites95 on potential claims and defences. In addition, lawyers and law firms would benefit from having explicit policies and guidelines on using (or not using) social networking sites and guidelines to avoid potential ethics violations.96 Second, MRPC Rule 1.6(a) relates to the duty of confidentiality and attorneyeclient privilege. Comment 16 to MRPC Rule 1.6 states that lawyers “must act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure.”97 In this respect, lawyers should take steps to ensure that junior staff adhere to strict confidentiality with respect to a client’s confidential information even where the client has made social media postings.98 In addition, lawyers and law firms can adopt stronger security measures or increase the audit trail features of case management systems to ensure greater confidentiality. Westermeier believes that, in the future, lawyers “may be required to keep abreast of technological advances in security, as well as the technological advances being developed by hackers who are seeking to steal secrets from third parties.”99 Perhaps the best and easiest solution is for lawyers to counsel clients directly in terms of confidential information and to decide on means of communication that will be secure, confidential, and less prone to being shared or compromised. Third, lawyers should avoid inadvertently creating unintentional attorneyeclient relationships. According to section 14 of the Restatement (Third) of Law Governing Lawyers, an attorneyeclient relationship arises where “a person manifests to a lawyer the person’s intent that the lawyer provide legal services for the person,”100 yet the lawyer either consents to provide such services or “fails to manifest lack of consent to

do so”101 with reasonable knowledge that the person is relying on that lawyer to provide legal services.102 In the social networking environment, lawyers should “exercise caution and vigilance”103 and avoid giving specific advice to individuals, giving casual advice in social media settings, or soliciting confidential information from acquaintances they may meet through social media or other websites. Lawyers should take care of the extent to which there is significant interactions and exchange of confidential information.104 A more explicit way of managing this issue is a clear and unambiguous statement, such as a disclaimer, that communications are not intended as legal advice. Hricik also suggests using a click-wrap acknowledgement105 which asks users who may come to a law firm’s website to explicitly agree to an understanding that the information submitted to a law firm does not necessarily constitute an attorneyeclient relationship before they can access certain information. In this regard, managing the public’s perception as well as educating them may be the best defense to an unintentional attorneyeclient relationship. Fourth, lawyers have a duty to maintain honesty in communications. Under MRPC Rule 1.7, a lawyer is prohibited from making “a false or misleading communication about the lawyer or the lawyer’s services.”106 This includes material misrepresentations of fact or law as well as omissions of fact which, if stated, would correct any misrepresentations.107 As discussed earlier, social networking sites provide numerous temptations for misleading information or appearances of an online persona that is separate from real life actions. A lawyer’s blog, website, social networking profile, and tweets are considered an extension of the lawyer, law firm and legal services.108 As such, lawyers should take great care to ensure that professional qualifications and bar admissions listed on social networking sites are accurate, diligently monitor their social networking profile for comments that might be construed as prohibited testimonials or endorsements,109 refrain

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Model Rules of Prof’l Conduct Rule 1.1 (2009). 93 Ibid. 94 Model Rules of Prof’l Conduct Rule 1.3 (2009). 95 See for example Molly McDonough, First Thing Lawyer Tells New Clients: Shut Down Facebook Account, A.B.A. J., Feb. 9, 2010, http://www.abajournal.com/news/article/first_thing_lawyer_tells_ new_clients_shut_down_facebook_account. 96 Bennett, supra note 13, at 117 (citing See also Doug Cornelius, Online Social Networking: Is It a Productivity Bust or Boon for Law Firms?, Law Prac., Mar. 2009, at 28, 29e30, available at http://www. americanbar.org/publications/law_practice_home/law_practice_ archive/lpm_magazine_articles_v35_is2_pg28.html (stating that misuses of social networking technology “is not a technology problem e it is a people problem”)). 97 Model Rules of Professional Conduct Rule 1.6 (2009) cmt. 16; See also ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 99-413 (1999) (advising lawyers to work with clients and choose means of communication which will ensure confidentiality). 98 Bennett, supra note 13, at 117e118. 99 J.T. Westermeier, Ethics and the Internet, 17 Geo. J. Legal Ethics 267, 301 (2004). 100 Restatement (Third) of Law Governing Lawyers x 14 (2000).

Ibid. Bennett, supra note 13, at 120. 103 Association of the Bar of the City of New York, Committee on Professional and Judicial Ethics, Formal Op. 1998-2 (1998), available at www.abcny.org/Ethics/eth1998-2.htm; see generally Anthony E. Davis & David J. Elkanich, A Lawyer’s Guide to Managing E-Lawyering Risks 5 (2006), available at http://www.chubb.com/ businesses/csi/chubb5904.pdf (“[Web site interactions] pose great risks in that attorneyeclient relationships may be created before any evaluation for appropriateness, such as checking for conflicts of interest, has been completed.”). 104 Bennett, supra note 13, at 122. 105 David Hricik, To Whom it May Concern: Using Disclaimers to Avoid Disqualification by Receipt of Unsolicited E-mail from Prospective Clients, Prof’l Law. Fall 2005, at 1, 3e5. 106 Model Rules of Professional Conduct (2012) Rule 7.1; Model Rules of Professional Conduct (2009) Rule 8.4 (lawyers should refrain from engaging in conduct involving “dishonesty, fraud, deceit or misrepresentation.”). 107 Model Rules of Professional Conduct (2012) Rule 7.1. 108 Bennett, supra note 13, at 135. 109 Andy Taylor, Friending and Following: Applying the Rules of Professional Conduct to Social Media, 34 U. Ark. Little Rock L. Rev. 551, 574e575 (2012). 102

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from blogging about current or pending litigation110 that might reveal confidential information,111 or in any way interfere with the proper administration of justice.112 Fifth, an attorney should take care to avoid potentially engaging in unauthorised practice of law. Under MRPC Rule 5.5, a lawyer who is not admitted to practice in a jurisdiction must not “establish an office or other systematic and continuous presence” in the jurisdiction for the practice of law; or “hold out to the public or otherwise represent that the lawyer is admitted to practice law in [that] jurisdiction.”113 While the ABA has expanded the possibility of multi-jurisdictional practice,114 lawyers can still steps to avoid potential issues by ensuring that they fully disclose the jurisdiction in which they can practice law, using explicit disclaimers, and, taking additional care if s/he maintains an online presence via a blog or a professional social networking page that crosses geographical boundaries.115 Finally, an attorney should take care to understand retention policies where websites, social media profiles and posts are considered advertising. Under MRPC Rule 7.2, lawyers are permitted to advertise their services through written, recorded, or electronic communications.116 According to authors Hill and Westermeier, many jurisdictions interpret electronic communications to include websites, social networking profiles, blogs, email, and other forms of social media which are considered advertising,117 110

See, for example Martha Neil, Calif. Lawyer Suspended over Trial Blogging While Serving as Juror, ABA Journal.com (August 4, 2009) http://www.abajournal.com/news/article/calif._lawyer_suspended_over_trial_blog_while_serving_as_juror/. 111 Bennett, supra note 13, at 135e136 (citing Philadelphia Bar Ass’n, Prof’l Guidance Comm., Op. 2009-02 (2009), available at http://www.philadelphiabar.org/WebObjects/PBAReadOnly.woa/ Contents/WebServerResources/CMSResources/Opinion_2009-2. pdf (which discussed a case in which the Philadelphia bar ethics committee applied Rule 8.4 and found that a lawyer “could not use a third party to “friend” an adverse witness, in an attempt to find evidence to impeach the witness, on a social networking site” because such conduct was deceitful in that it left out the material connection between the third-party and the lawyer whose intent was to gain information concerning a litigation)). 112 Bennett, supra note 13, at 136. 113 Model Rules of Professional Conduct (2012) Rule 5.5. 114 Model Rules of Professional Conduct, Rule 5.5(c)e(d). 115 Bennett, supra note 13, at 127e128 (citing Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Court, 949 P.2d 1, 6 (Cal. 1998) (holding that an out-of-state lawyer’s user of fax, email, or other technology could constitute unauthorized practice of law)); See also Florida Bar v. Kaiser, 397 So.2d 1132, 1133 (Fla. 1981) (holding that a lawyer licensed to practice in New York who advertised in Miami engaged in unauthorized practice because the lawyer gave the impression that s/he was licensed to practice in Florida). 116 Bennett, supra note 13, at 129 (citing Bates v State Bar of Arizona 433 U.S. 350 (1977) which held that states cannot ban lawyer advertising but can regulate false, misleading and deceptive advertising); See also Model Rules of Professional Conduct (2009) Rule 7.2(a) & cmt. 3. (“[E]lectronic media, such as the Internet, can be an important source of information about legal services, and lawful communication by electronic mail is permitted by this Rule.”). 117 Susan Corts Hill, Living in a Virtual World: Ethical Considerations for Attorneys Recruiting New Clients in Online Virtual Communities, 21 Geo. J. Legal Ethics 753, 757 (2008); J.T. Westermeier, Ethical Issues for Lawyers on the Internet and World Wide Web, 6 Rich. J.L. & Tech. 5 (1999): Taylor, supra note 109, at 577e580 (discussing the complex disclosure requirements for advertising by lawyers).

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subject to the state’s advertising rules. While MRPC supports lawyer advertising, jurisdictions may have separate advertising rules which require lawyers and law firms to retain copies of websites and content pages for audit purposes.118 In addition to lawyers, judges should also ensure that interactions on social networking sites do not run afoul of the judicial code of conduct and the public perception of and confidence in the fair and proper administration of justice. In jurisdictions where judges are allowed to have social networking profiles, use of social media is qualified by several conditions and requirements, the primary one being that judges are still held to the high standards of the Code of Judicial Conduct.119 For example, in 2009, the Florida Judicial Ethics Advisory Committee, concerned about issues of undue influence, ruled that “judges may not friend lawyers who might appear before them, or permit such lawyers to friend them.”120 In the same year, a South Carolina ethics opinion, in an effort to ensure that judges remain connected to their communities, stated that judges are allowed to ‘friend’ court employees and law enforcement personnel as long as they do not discuss the judge’s cases.121 In 2009, a judge in North Carolina was publically reprimanded for ex parte communications with a lawyer because the judge ‘friended’ the defence attorney on Facebook and openly discussed a pending child custody case.122 The North Carolina Judicial Standards Commission held that the judge violated the North Carolina Code of Judicial Conduct and found that the judge’s conduct was “prejudicial to the administration of justice [and] that brings the judicial office into disrepute.”123 The lessons from these examples are echoed in a November 2010 advisory opinion (Opinion 66) by the California Judges Association (CJA) stating its views on judges using social networking sites.124 By and large, the CJA concluded that, with qualifications, a judge may be a member of an online social networking community as long as they do not violate the California Code of Judicial Ethics.125 The CJA also stated that

118 Bennett, supra note 13, at 130e131 n 107; Taylor, supra note 109, at 575e576. 119 See for example, American Bar Association, Model Code of Judicial Conduct: Preamble, (2010), available at http://www. americanbar.org/groups/professional_ responsibility/publications/ model_code_of_judicial_conduct (“judges are bound to represent and uphold the honor and integrity of the legal system in all activities, whether judicial or extra-judicial”). 120 Slaughter and Browning, supra note 38, at 194. 121 Slaughter and Browning, supra note 38, at 194; Ryan Jones, Judge Reprimanded for Discussing Case on Facebook, The Dispatch.com (June 1, 2009) http://www.the-dispatch.com/article/ 20090601/ARTICLES/905319995. 122 Jones, supra note 121. 123 Jones, supra note 121. 124 See generally Brian Hull, Why Can’t We Be “Friends”? A Call for a Less Stringent Policy for Judges Using Online Social Networking, 63 Hastings L.J. 595, 606e615 (2012) (discussing the three main issues addressed and analysed by the California Judges Association across nine major state jurisdictions); Cal. Judges Ass’n, Judicial Ethics Comm., Advisory Op. 66, at 1 (2010). 125 Hull, supra note 124, at 596e597, 606.

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a judge may include lawyers in their online social network who might appear before them as long as this does not create bias or an appearance of bias leading to undue influence.126 The CJA created a four-factor test as a way to assess the impact of ‘friending’ on bias and undue influence. Finally, the CJA stated that a judge should not include in their online social network a lawyer who has a case pending before that particular judge.127 While judges have received general approval for using social networking sites, they must still conduct themselves in a manner that is impartial, free from outside influence or impropriety, and uphold the fair and impartial administration of justice. Judges can use social media and achieve these objectives by not commenting on pending matters, refraining from posting pictures or online comments that might impact the public’s perception of integrity and impartiality, by avoiding excessive use of social media to monitor and sanction fellow attorneys/colleagues or obtaining personal or confidential information about a party, witness, or other parties to pending litigation or dispute resolution processes.128 As the highest office in the legal system, judges can play a positive, mentoring role and set an example with respect to appropriate use of social networking sites. Finally, law professors and legal education institutions must also be wary of the implications of using social networking sites while at the same time serving as instructive mentors to students on how best to leverage social media in order to accomplish their educational and professional goals. First, law professors and law schools should be mindful that there are potential issues related to the use of social networking sites. This centres on student privacy, reputation of the institution and professors, and potential bias if too much information is revealed and open to the public domain. A second important consideration, discussed by Vinson as well as Fink, is the tacit professional teacherestudent boundary that students recognise and which should not be blurred in terms of using social media.129 Where faculty have a social media presence and are ‘friending’ students, they should be sensitive to how they use social media, the level of personal information that is open to the public domain, manage expectations with students, and manage the perceptions students may have about the faculty member’s online presence. Faculty, students, and administrators should also be aware that improper conduct via social media is not, on balance, protected or privileged. Parties can be subject to claims of defamation, false light, libel and slander, invasion of privacy, misappropriation of identity, bullying, harassment, and

126

Hull, supra note 124, at 596e597, 609. Hull, supra note 124, at 596e597, 613. 128 See for example, Aurora J. Wilson, Let’s Be Cautious Friends: The Ethical Implications of Social Networking for Members of the Judiciary, 7 Wash. J. L. Tech. & Arts 225, 233e236 (2012); Slaughter and Browning, supra note 38, at 193e195. 129 See discussion and analysis in Section 2 above. 127

copyright infringement.130 Finally, faculty should be mindful and reflective about the extent to which their interactions on social networking sites impact professionalism, impartiality, fairness, and ethics with respect to assessment of student’s academic work. Students may social media interactions, either intentionally or unintentionally, try to influence a teacher in order to get better grades or more favourable treatment. Nevertheless, it is important that faculty remain vigilant about issues of bias or appearances of bias and unfair practices. Social networking sites can provide a rich environment for creating teaching moments as long as faculty and students observe and respect each other’s roles in an academic setting. In addition, administrators of law schools can help foster the ethical, beneficial, and positive use of social networking sites by proactively setting forth policies, principles, and guidelines that balance the benefits of using social media with the potential minefields discussed above.

5.

Conclusion

As numerous scholars and practitioners have already recognised, social media and the proliferation of social networking sites have fundamentally crashed the courthouse and the law school as well as changed the legal profession. Instead of blindly following existing trends in the use of social media, the legal profession, as administrators of justice, officers of the court and educators of future lawyers, needs to understand both the benefits and implications associated with using social networking sites. More importantly, the legal profession may need to be reminded of its foundational principles and ethical obligations so that the ushering of the digital age does not mean an end to the fair and impartial administration of justice, both actual and perceived. All parties within the legal profession, from lawyers and judges to law schools, legal educators, and law students, play an important role in balancing the benefits of social media with navigating the potential minefields. Editor’s note: This paper was runner up to the CLSR Best Academic Paper award at the 7th International Conference on Legal, Security and Privacy Issues in IT Law (LSPI) October 2e4 2012, Athens, Greece. Avnita Lakhani ([email protected]) City University of Hong Kong School of Law, Hong Kong. 130

Vinson, supra note 26, at 378e379 n 82e83 (outlining several cases where students, in particular, were accused and punished for improper conduct on social networking sites); Cf Wolfe v. Fayetteville, Ark. Sch. Dist., 600 F. Supp. 2d 1011, 1017e18 (W.D. Ark. 2009) (lawsuit by student’s family against the principal and school district for First Amendment retaliation, false light claims, and defamation. The court held claims were valid enough to go to trial because Facebook was used as a tool against the student); Sydney Lupkin, Teacher Resigns Over Facebook Posting: Called Cohasset Residents Snobby, BOS. GLOBE, Aug. 19, 2010, http:// www.boston.com/news/education/k_12/articles/2010/08/19/ teacher_resigns_over_facebook_posting/; Spanierman v. Hughes, 576 F. Supp. 2d 292, 312e13 (D. Conn. 2008) (Holding in favour of the school for firing a teacher due to unprofessional conduct with students on MySpace. The court held that the conduct could “very well disrupt the learning atmosphere of a school.” Ibid. at 313).