Mcle Article: Ethics and Social Media: a Critical Juncture
| Publication year | 2018 |
| Author | By Megan Zavieh |
By Megan Zavieh
Megan Zavieh is a State Bar defense attorney serving lawyers throughout California. She is also the creator of The Playbook: The California Bar Discipline System Practice Guide, an online platform for self-represented respondents in California's attorney discipline system.
(Check the end of this Article for information about how to access 1.0 self-study general credits.)
Social media has changed how we practice law— not just how we market our services, but truly how we practice. It now impacts critical everyday aspects of practice, including how we advise clients, what we advise in litigation, and how we seek information from opposing parties.
With social media playing such a critical role in our work, it is imperative that we grasp the ethics surrounding its use to avoid having to defend ourselves before the State Bar for an errant post for poor advice regarding a client's use.
When we talk about the ethics of social media in law, we are not talking about one specific ethics rule. The California Supreme Court did not enact a new rule when Facebook became prevalent. Rather, the ethics rules with which we are all familiar have certain applications to the use of social media.
For example, if you fail to look into your opposing party's Facebook posts when trying to establish a critical fact, you are likely running afoul of Rule 3-110, Failing to Act Competently. If you hide your client to delete incriminating social media posts, you are likely violating Rule 3-110 again (and subjecting your client to sanction for spoliation of evidence), Rule 3-210 (Advising the Violation of Law), Rule 5-220 (Suppression of Evidence), multiple subsections of Business & Professions Code § 6068 (various duties of lawyers), Business & Professions Code § 6106 (acts of moral turpitude), and quite possibly more.
Business & Professions Code § 6068 contains several catch all duties of lawyers which could be used to prosecute almost any violation related to the use of social media. For example, subsection (b) requires lawyers "to maintain the respect due to the courts of justice and judicial officers." Subsection (d) requires lawyers "to employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law." It is easy to see how either of these sections could be viewed as violated if the lawyer misuses social media.
None of the rules, nor any others, use the term "social media." They don't need to. Our ethical duties extend to all modes of doing, including the use of...
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