When it comes to social media, and the impact of Facebook, Twitter and other sites on the practice of law, lawyers can no longer merely stick their heads in the sand and feign ignorance. As the New Jersey Supreme Court recently ruled, "Attorneys must acquaint themselves with the nature of social media to guide themselves and their non-lawyer staff and agents in the permissible uses of online research. At this point, attorneys cannot take refuge in the defense of ignorance." This conclusion is consistent with opinions by many ethics committees.
In this episode of The Legal Tech Podcast, attorney Daniel J. Siegel, Chair of the Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility, discusses opinions by the Pennsylvania Supreme Court, and ethical guidance from the Pennsylvania Bar Legal Ethics Committee and the Philadelphia Bar Association Professional Guidance Committee, affirm that lawyers must recognize the importance of social media to their clients and their practices. They can no longer claim ignorance and stick their heads in the sand.
Attorney Dan Siegel is the principal of the Law Offices of Daniel J. Siegel, LLC and president of Integrated Technology Services, LLC, and represents attorneys in disciplinary matters, and provides ethical and techno-ethical guidance to attorneys and law firms. This is the second episode of his firm's Legal Tech Podcast.
00:00:00,000 --> 00:00:01,050
00:00:01,060 --> 00:00:07,830
Welcome to the second episode of the Legal Tech Podcast, sponsored by the law offices of Daniel J.
00:00:07,890 --> 00:00:12,150
Siegel, LLC and Integrated Technology Services, LLC.
00:00:12,660 --> 00:00:19,230
I'm Attorney Dan Siegel, and I'm here today to talk to you about the dangers of ignorance and attorney ethics.
00:00:19,530 --> 00:00:25,770
Where we're going to start is the Bible and Leviticus, yes, legal ethics and the Bible.
00:00:26,160 --> 00:00:39,660
But in Leviticus, we are told that when a person without it sins in regard to any of the Lord's Commandments about things not to be done and realizes his guilt, he shall be subject to punishment.
00:00:40,050 --> 00:00:43,560
That's really the case with attorney ethics as well.
00:00:44,220 --> 00:00:57,840
We know that in law, there is a doctrine that ignorance of the law is not an excuse and that you can't escape liability for violating the law simply because you are unaware of it.
00:00:58,470 --> 00:01:07,290
So now let's look at that concept in the context of attorney ethics and Facebook and social media.
00:01:08,210 --> 00:01:18,880
When Facebook began, when social media began, none of us really understood how important it would be in society.
00:01:18,880 --> 00:01:29,470
And, of course, in law, the issues of social media and what is posted on Facebook and other websites is an issue in litigation.
00:01:29,650 --> 00:01:34,430
It's an issue all over the place and in so many ways.
00:01:34,440 --> 00:01:39,260
And in so many cases, it can be used to help prosecute criminals.
00:01:39,270 --> 00:01:51,860
It can be used as a defense or as a weapon in litigation, personal injury, workers compensation, the types of things that we see in our office.
00:01:52,250 --> 00:01:56,030
But social media itself is ubiquitous.
00:01:56,040 --> 00:02:05,580
What began as a concept that most of us never really thought about has become a a factor in every aspect of our lives.
00:02:05,590 --> 00:02:14,040
After all, President Trump used social media, Twitter to announce policy, hirings, firings, etc.
00:02:14,700 --> 00:02:16,410
Social media is here to stay.
00:02:17,190 --> 00:02:24,240
But the problem is that a lot of lawyers continue to assert that ignorance is their defense.
00:02:24,240 --> 00:02:27,000
They don't need to know about social media.
00:02:27,270 --> 00:02:36,600
They don't need to really be concerned about it and its impact on their clients and impact on their behavior as well.
00:02:36,610 --> 00:02:38,730
That's simply not true.
00:02:38,730 --> 00:02:43,035
So let's take a step back and we're going to go back to 2009.
00:02:43,045 --> 00:03:07,890
And we're going to see that in 2009, the Philadelphia Bar Association Committee on Professional Guidance issued an opinion relating to whether it was appropriate for an attorney or someone acting on behalf of an attorney to contact a party or a witness without telling them who they were because it was on social media.
00:03:07,900 --> 00:03:09,120
It was Facebook.
00:03:09,130 --> 00:03:19,730
We've always known that you can't have such pretextual communications with represented parties, but now it was social media.
00:03:19,740 --> 00:03:22,070
So after all, it's the Internet.
00:03:22,080 --> 00:03:22,850
00:03:22,850 --> 00:03:23,360
00:03:23,370 --> 00:03:28,640
Well, the Philadelphia Bar Association Committee said, no, it's not okay.
00:03:29,300 --> 00:03:33,170
And that the conduct violated rule of professional conduct.
00:03:33,180 --> 00:03:38,220
Eight, four C because the communication was deceptive.
00:03:38,230 --> 00:03:39,390
It makes sense.
00:03:39,400 --> 00:03:46,020
But back then, people thought, Well, after all, it's just the Internet, so we don't even have to be concerned.
00:03:46,030 --> 00:03:52,550
One of those People is an attorney in New Jersey whose name was Robotel.
00:03:53,870 --> 00:03:54,770
00:03:54,770 --> 00:04:02,600
Robotel got involved in a personal injury case where he represented a defendant.
00:04:02,960 --> 00:04:26,610
And in the case, he was concerned with investigating the plaintiff, and he threw his paralegal legal assistant began investigating the plaintiff and also trying to determine what, if anything, was on this person's social media page and in particular, Facebook.
00:04:27,090 --> 00:04:40,970
Well, this was in 2007 and 2008, and fortunately for attorney route, the materials from back then didn't exist in the present.
00:04:41,360 --> 00:04:57,520
And yes, fastforwarding, 13 or 14 years later, in September of 2021, the New Jersey Supreme Court declined to impose attorney discipline on attorney Ro Bertelli.
00:04:58,270 --> 00:05:06,610
The Supreme Court in New Jersey said that it was not imposing the discipline, not because the attorney didn't do anything wrong.
00:05:06,920 --> 00:05:25,190
No, it said that it didn't impose discipline because the evidence fell short of establishing that the attorney had engaged in conduct involving dishonesty fraud, deceit, or had engaged in conduct that was prejudicial to the administration of justice.
00:05:25,200 --> 00:05:32,350
In other words, they couldn't prove their case against him, and the attorney wasn't disciplined.
00:05:32,350 --> 00:05:37,420
He got off, like we say on a technicality, but he got off.
00:05:37,760 --> 00:05:55,390
Well, that case in 2021 is important because the New Jersey Supreme Court had said that as of 2007 or eight, no ethics committee had opined about the issue of Facebook social media.
00:05:55,760 --> 00:06:02,730
Those issues as a result, Robertelli's defense of ignorance.
00:06:02,740 --> 00:06:09,240
I didn't realize just how important social media was in the issues relating to social media.
00:06:09,250 --> 00:06:16,590
The things that were used as his defense at that time hadn't been addressed by ethics committees.
00:06:16,600 --> 00:06:19,290
Philadelphia did in 2009.
00:06:19,290 --> 00:06:36,330
Numerous bar associations all over the country also raised that issue, and every one of them agreed that you can't use pretext in order to contact and a represented party or a party in general.
00:06:36,450 --> 00:07:00,428
You have to say, if you're going to do the contact who you are, who you represent, who you're working on behalf of the Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility issued a detail what we call a formal opinion guidance designed for the bar as a whole in 2014 number 2014 200.
00:07:00,454 --> 00:07:11,850
And the committee, which I currently chair, addressed the issue and said that you you can't use social media in that way.
00:07:11,860 --> 00:07:26,700
We said that lawyers must be aware of how social media websites operate and the issues that they raise so that you can represent clients in matters that may be impacted by content posted on social media websites.
00:07:26,940 --> 00:07:32,730
We also said that lawyers should understand the manner in which postings are public or private.
00:07:32,740 --> 00:07:42,840
And if I'm saying that and you don't know the difference, then if you're an attorney, you need to stop, make a note and then find out that information.
00:07:42,850 --> 00:07:44,790
It's really important.
00:07:44,790 --> 00:08:09,000
So we know that as time has developed and social media has become so pervasive that lawyers can't ignore the impact of social media on cases and have to understand how it works, even if they never intend to have a Facebook account or a Snapchat account or look at Twitter or any of those things.
00:08:09,010 --> 00:08:11,670
Ignorance isn't a defense.
00:08:12,450 --> 00:08:14,070
Ignorance isn't a defense.
00:08:14,520 --> 00:08:21,140
As the Supreme Court of New Jersey made very clear in their decision.
00:08:21,150 --> 00:08:40,670
Yes, they chose not to discipline Attorney Rover Telly, but they certainly did not conclude that what he did was acceptable or that it would be acceptable or that his defensive ignorance would work in the future, the court said.
00:08:40,790 --> 00:09:01,550
Exactly to the contrary, the court said that attorneys should know that they may not communicate with a represented party about the subject of the representation through social media or in any other manner, either directly or indirectly, without the consent of the party's lawyer.
00:09:01,840 --> 00:09:10,360
The court further said that today social media is ubiquitous, a common form of communication among members of the public.
00:09:10,620 --> 00:09:20,560
Attorneys must acquaint themselves with the nature of social media to guide themselves and their nonlawyer staff and agents and the permissible uses of online research.
00:09:21,040 --> 00:09:25,990
At this point, attorneys cannot take refuge in the defense of ignorance.
00:09:26,440 --> 00:09:27,310
So there it is.
00:09:27,320 --> 00:09:32,260
The New Jersey Supreme Court sent a broad shot to all New Jersey attorneys.
00:09:32,500 --> 00:09:34,600
Ignorance is not a defense.
00:09:34,610 --> 00:09:36,820
You can't stick your head in the sand.
00:09:36,830 --> 00:09:49,090
They also referred the issues in the Robertelli case to their advisory Committee on Professional Ethics for consideration of amendments to the rules of Professional conduct.
00:09:49,100 --> 00:09:54,770
The rules that govern attorney ethics in New Jersey and every state has them.
00:09:54,780 --> 00:10:20,130
Pennsylvania has similar rules, and we've seen the import of those rules very recently and in a way that shows that the Pennsylvania Supreme Court also intends to adopt a similar perspective relating to social media and attorneys and the fact that ignorance just doesn't work.
00:10:20,140 --> 00:10:40,170
Where do we know that? We know that in the case of Stacey Parks Miller, who was the district attorney of Center County, and she was disciplined in 2019 and suspended from her license was suspended for a period of one, one year and one day.
00:10:40,470 --> 00:10:46,350
That one day is significant for purposes of attorneys who are involved in the disciplinary process.
00:10:46,950 --> 00:10:52,980
But what's important is that the Supreme Court issued its order and as part of its order.
00:10:53,280 --> 00:11:01,080
What's included in the record is the report and recommendation of the disciplinary board of the Pennsylvania Supreme Court.
00:11:01,090 --> 00:11:09,930
The disciplinary board is the entity that imposes or recommends what discipline should be imposed on an attorney.
00:11:09,930 --> 00:11:15,510
And in the case of Attorney Parks Miller, there was a lot of information.
00:11:15,520 --> 00:11:20,160
There were a lot of things going on in her case, and I'm not going to go through all of them.
00:11:20,160 --> 00:11:48,870
But what's important is that the opinion and recommendation from the disciplinary board cited various other cases in which attorneys were, in fact, discipline throughout the country for improper social media conduct, which was part of the issue or the issues in the disciplinary prosecution of Attorney Parks Miller.
00:11:49,560 --> 00:12:40,260
The board wrote in its opinion, citing 2009 Pennsylvania ethics opinion from the Philadelphia Bar Association Professional Guidance Committee generally condemned covert efforts to gain access to restricted social media website, a point which respondent, Parks Miller conceded, and they quoted the Philadelphia Bar Committee noting that the mere act of concealing a highly material fact as to why the contact on social media was being made would violate multiple rules of professional conduct, including rules eight, four, C, four, three, and possibly five, three, depending on the Attorney's authority over the third party.
00:12:40,290 --> 00:12:53,580
And they noted that that opinion existed at the time that Stacey Parks Miller created a fictitious Facebook page in 2011, although she sought no guidance before creating the page.
00:12:54,120 --> 00:13:01,770
They then note that the issue relating to social media was revisited in a 2014 opinion.
00:13:01,780 --> 00:13:21,450
This from the Pennsylvania Bar Committee, which reinforced the fact that even the Innocuous Act of having a third person send a friend request to a represented party in order to gain access to the private portion of their social media profile violates Rule eight four C.
00:13:22,110 --> 00:13:43,220
Thus, the disciplinary board affirmed that attorneys should be looking at the guidance offered by ethics committees should be aware of it, and also that they should understand what their obligations are, what they can and cannot do when it comes to social media.
00:13:43,480 --> 00:13:50,320
So the days of saying I didn't understand, I was ignorant.
00:13:50,740 --> 00:13:51,970
00:13:52,260 --> 00:14:08,470
And it matters not whether an attorney is new and young and very social media savvy or someone who is older who chooses not to be involved in social media.
00:14:08,480 --> 00:14:16,340
You have to understand that I've always used the example when I lecture on this type of topic about doctors.
00:14:16,840 --> 00:14:19,720
Medicine has changed a lot over the years.
00:14:19,720 --> 00:14:32,230
In fact, when you think about it, when many doctors went to medical school, there were no such thing as an MRI or similar procedures.
00:14:32,860 --> 00:14:34,360
Medicine has improved.
00:14:34,360 --> 00:14:58,830
Can you imagine how you would feel if you went to a doctor who said, Well, I'm not going to order that MRI that you're asking about because those MRIs weren't around when I was in medical school, and I'm only using the medical technology and innovation that was around when I graduated medical school.
00:14:58,960 --> 00:15:07,210
Of course, that wouldn't make you happy, and you would likely find another doctor in the context of attorney ethics.
00:15:07,220 --> 00:15:09,670
The issue is also clear.
00:15:09,960 --> 00:15:30,730
Lawyers must understand how social media works and must take precautions if you're going to investigate another party's use of social media, which I hardly recommend doing, but you have to do it in a manner that complies with the rules of professional conduct.
00:15:30,960 --> 00:15:33,550
I'm Attorney Dan Siegel.
00:15:33,560 --> 00:15:42,010
This has been episode two of the Legal Tech podcast sponsored by the law offices of Daniel J.
00:15:42,190 --> 00:15:46,780
Siegel LLC and Integrated Technology Services LLC.
00:15:47,530 --> 00:15:56,740
We provide in the law firm ethical and techno ethical guidance to attorneys disciplinary representation as well.
00:15:57,190 --> 00:16:14,440
And in our consulting firm, we assist attorneys with workflows, but also in assuring that their offices are technologically set up so that they protect attorney client information and confidential sensitive information.
00:16:14,800 --> 00:16:16,840
You can find us at Daniel J.
00:16:17,170 --> 00:16:21,220
Siegel, Daniel Siegel.
00:16:21,460 --> 00:16:28,270
Com and at Tech Lawyer Tech lawyer.
00:16:29,550 --> 00:16:30,550
00:16:30,560 --> 00:16:31,630
Thank you for listening.