Law Tips: Social Media & Legal Ethics – Part 1

Social Media & Legal Ethics – Part 1
“The use of social networking by lawyers has exploded in recent years. A survey conducted in 2008 found that only 15% of attorneys used legal and social networking sites. In 2010, 56% of attorneys used these sites. See 2010 ABA Legal Technology Survey. The number today is sure to be even higher. There are powerful motives for using social media, including: (i) keeping in touch with family and friends; (ii) networking with colleagues; (iii) providing general information to clients and potential clients; (iv) obtaining information on adversaries, judges, parties and witnesses; and (v) marketing to potential clients and in-house counsel. With all of the benefits that social networking brings; however, it also creates a number of ethical issues that lawyers must consider.”

The above is an alert from ICLEF’s faculty participant, John David Hoover, Hoover, Hull LLP, Indianapolis, concerning “Social Media & Legal Ethics.”  The social media legal arena, of course, is a broad topic that has many important facets relevant in today’s online atmosphere.  Selecting one important segment of John’s advice, Ex Parte Communications is the subject kicking off this Law Tips series.

Ex Parte Communications
Under Indiana’s Code of Judicial Conduct, Canon 2, Rule 2.9, any ex parte communications of any kind between a judge and counsel must be avoided at all costs. This applies to social media, or otherwise. See also, Ind. R. Prof. Cond. 3.5.  The South Dakota Supreme Court recently issued an opinion addressing the issue of allegedly ex parte communications with a judge on Facebook.  In Onnen v. Sioux Falls Independent School District #49-5, 801 N.W.2d 752 (S.D. 2011), the plaintiff appealed a denial of his motion for a new trial based on the alleged bias of the presiding trial court judge. During the trial, one of the major witnesses posted a “happy birthday” message on the judge’s Facebook “wall.”  The South Dakota Supreme Court affirmed the denial of a new trial, finding that the message was not, by definition, an ex parte communication, because it was not related to any court action. Rather, it was only incidental contact between the judge and a witness, and there was no indication that the message improperly influenced the judge in any way.

The North Carolina Judicial Standards Commission publicly reprimanded a judge for engaging in ex parte communications with a lawyer appearing before him in a child custody dispute. See North Carolina Judicial Standards Commission, Inquiry No. 08-234, Public Reprimand of B. Carlton Terry, Jr. The judge and attorney were Facebook “friends” with one another. During an in-chambers meeting, the judge and lawyers were reviewing testimony that suggested one of the parties was having an affair. One of the lawyers stated, “I will have to see if I can prove a negative.”  That night, the judge checked the lawyers Facebook account and saw where he had posted “how do I prove a negative?”  The judge then posted to his account that he had “two good parents to choose from” but felt that “he will be back in court” referring to the case not being settled. The lawyer then posted, “I have a wise judge.”  The Commission concluded that these messages constituted ex parte communications with counsel for a party in a matter being tried before him, thereby violating several canons of the Code of Judicial Conduct.

Obviously, under Rule 3.5 of the Indiana Rules of Professional Conduct, the conclusion would be the same for this type of conduct as to the lawyer. The informal nature of social networking may lead a lawyer to engage in communications that he or she would never dream of doing face to face. The simple rule to follow with regards to ex parte communications is that, if you cannot do it in the real world, don’t do it in the virtual world.

Overall, Mr. Hoover’s advice for lawyers using social media is “As social media becomes more ingrained in lawyers’ day-to-day business and lives, it is important to consider the various ethical rules that may apply to its use. Put simply, ethical pitfalls abound for the unwary.”

Among additional areas that John points to that deserve awareness are unauthorized practice of law, scope of discovery and discovery abuses. Join us in coming Law Tips for an expanded discussion on the legal ethics of social media from John David Hoover. You can also take advantage of the opportunity for John’s full presentation in the “Business Litigation” seminar.

To view the upcoming Video Replays, the Online/On Demand Video or purchase the e-Publication of “Business Litigation“ – Click Here

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About our Law Tips faculty member:
John David Hoover is a founding partner with Hoover Hull LLP. He practices in the areas of commercial litigation, professional liability (including medical and legal malpractice defense), professional peer review, officer and director defense, campaign and election law, art litigation, and counseling buyers and sellers on the purchase and sale of fine art items.

About our Law Tips blogger:
Nancy Hurley, Law Tips blogger, has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We plan to utilize her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook page, Twittering and other places her legal experience lends itself.

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ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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