THE LEGAL ETHICS
OF
SOCIAL MEDIA
Judge Lynn M. Egan
Judge Eileen M. Brewer
Mr. Robert P. Cummins
July 15, 2014
WHAT IS SOCIAL MEDIA?
 Social Networks – Allows people to connect with others of
similar interests. Typically includes a profile & ways to
interact with other users, i.e., Facebook & LinkedIn.
 Microblogging – Allows users to share short updates with
other subscribers, i.e., Twitter.
 Blogs – Online forums that allow conversations by posting
messages.
 Media Sharing – Allows people to upload & share pictures &
video, with features such as profiles & comments, i.e.,
YouTube.
 Social News – Allow peoples to post news stories or links to
articles & then allows users to vote on the items, i.e.,
Reddit.
IT IS COMING TO YOUR
CASE – SOON!
 The average adult spends 11 hours a day on digital
media & 23 hours a week texting.
 Over 6 billion hours of YouTube are watched every
month.
(“Always On: How Media Usage is Taking Over Our Lives,” by Michael Wolff,
USA Weekend, July 11-13, 2014)
POSSIBLE ISSUES:
 Client management – should plaintiffs’ attorney’s
contingent fee agreement address the client’s social
media resources? Require that those resources be
shut down or eliminated?
 Discovery – Relevance is the touchstone concept.
“Privacy” is not. Also, be mindful of need to
authenticate – how will you establish the evidentiary
foundation for online postings, particularly if the alleged
author denies them?
 Trial – How far can you go in researching witnesses, or
jurors? What are your duties to disclose/report?
KNOW YOUR JURISDICTION
 This topic is evolving – quickly!
 Not much case law – none in Illinois.
 Ethical opinions vary state to state so understand your
jurisdiction’s ethical rules about advertising,
solicitation & communication about yourself & your
firm’s services. They all apply to your online
activities.
 Pay close attention to the work of the Illinois Rules
Committee & Discovery Committee. New rules just
adopted about ESI & both continue to work to further
refine them. Must know in order to correctly advise
your clients.
WHERE TO BEGIN?
 Practical Law article: “Social Media: What Every
Litigator Needs to Know.”
 Business Law Today article: “10 Tips for Avoiding
Ethical Lapses When Using Social Media.”
 ABA Formal Opinions 457 (“Lawyer Websites”) & 466
(“Lawyer Reviewing Jurors’ Internet Presence”)
 National Center for State Courts – state-by-state listing
of court electronic device policies & jury instructions
about social media.
DISCOVERABILITY
Judge Eileen M. Brewer
SCENARIOS - #1
A lawyer hires a web designer to update her website,
which includes the following language: “Cook County’s
best medical malpractice attorney” & describes the
attorney as a “personal injury specialist” who would get
clients “the settlement you deserve.”
 Any ethical issue with the language of the website?
 Does use of a web designer insulate the attorney?
 What if the website allows viewers to pose legal
questions?
SCENARIO -- #2 & #3
 In a “priest abuse” case, defense counsel seeks
discovery of all social media (public & private
Facebook, Twitter, etc.) reflecting the current conduct of
plaintiffs, who claim to have been abused. The
argument is that this discovery will reveal that their
claims of ongoing injury are not well founded.
 In a defamation action premised on plaintiff’s
statements that defendant sexually abused her minor
son, defense counsel seeks discovery of plaintiff’s
Facebook account, arguing that the information will
corroborate the belief that plaintiff is gay & this fact
makes it more likely that he sexually abused a young
boy.
QUESTIONS
 Is the concept of relevance any different as applied to social media?
 Are “private” postings afforded more protection than “public”
postings?
 Can attorney advise client to shut down or delete Facebook postings
after receiving motion to compel? What happens if he does?
 Is it malpractice for an attorney not to pursue “social media
discovery”? What if client loses the case, but later discovers that a
third party had e-mail evidence that would have changed the result?
 What if client inadvertently fails to disclose a 2nd, relevant, e-mail
account until after successful trial result? What is the lawyer’s duty?
 A third party contacts attorney after trial & reveals relevant e-mail
that should have been disclosed by the client. When confronted, the
client tells the attorney, “The trial is over. Don’t worry about it.”
What must the attorney do?
SCENARIO -- #4
It is Monday morning of the 3rd week of a high profile
drug trial. Judge Megan O’Brian presides. Before
becoming a judge, O’Brian was head of the DA’s special
prosecution unit. The prosecutor for the current trial
previously served with O’Brian in the DA’s office & they
are “Facebook friends.” Prior to the start of evidence,
O’Brian granted defendants’ motion to suppress a
significant piece of evidence, which is a serious blow to
the prosecution case. The prosecution rested its case
after presenting its final witness, a forensic expert, Dr.
Snow.
SCENARIO -- #4
Prior to start of the defense case, the attorney for one of the
defendants tasks a 2nd year associate from his firm with
delivering exhibit binders to the courthouse. While waiting to
do so, he overhears the following conversation between
people he assumes are jurors on the drug case:
MAN A – “I didn’t like that Snow guy so I Googled him over the
weekend. You know what – this so-called PhD left one of his
university teaching jobs after being accused of plagiarism. I
just knew this guy was a phony.”
MAN B – “Judge O’Brian told us not to do that & that we
shouldn’t talk about the case.”
MAN A – “You’re right. Forget we had this discussion.”
SCENARIO - #4
When the trial attorney arrives at the courthouse, the young
associate tells him about the conversation. The trial attorney
tells the young lawyer not to say a word to anyone or he will
be in “big trouble.” When his co-counsel asks why the
associate was so excited, the attorney responds, “You don’t
want to know.”
Co-counsel then says, “Well, there is something I need to tell
you. The law clerk who was doing a background check on the
jurors for me sent a “friend” request to one of our jurors.
This juror’s uncle is an in-house lawyer for one of our clients
& I have worked with him. He called me to tell me about the
contact & I told him it was a mistake. He assured me the
matter was closed & that the juror would not say a word.”
QUESTIONS
 How far can you go in checking on jurors? (ABA Formal
Opinion No. 466).
 Is a lawyer’s failure to check the Facebook status of sitting
jurors a breach of competence?
 What is a lawyer’s duty to report juror misconduct?
 What is the young associate’s duty after the trial attorney
tells him not to say a word about the jurors’ conversation?
 What duties do the trial attorneys & in-house counsel have
to report the “friend request” to the juror?
 Do the judge or prosecutor have a duty to disclose their
status as “Facebook friends”?