Despite this dramatic increase in social networking usage by practicing attorneys, the ABA and State Bar Association responses to the use of this technology have been extremely sparse and, when given at all, confusing and/or conflicting. For instance, a New York City attorney (or agent) who seeks to gain access to the social media posts of someone unrepresented by counsel (such as an opposing party’s witness) may do so via a Facebook “friend request” without disclosing any connection to the litigation; however a Philadelphia attorney may not. Although these acts are identical, the New York City bar allows for withholding such information when making a friend request, but the Philadelphia Bar Association has ruled that this is a deceitful omission in violation of Model Rule 4.1(a) and 8.4(c). Many lawyers, therefore, simply become lost in the ambiguity regarding how the rules of lawyers’ ethics apply to these emerging technologies.
Unfortunately, this ambiguity has resulted in sanctions against attorneys, and even judges, for ethical violations involving their use of social media. In one instance, North Carolina Judge B. Carlton Terry Jr. was publicly reprimanded by the North Carolina Judicial Standards Commission for “friending”(on Facebook) a lawyer in a pending case. Despite the fact that no case-specific information is exchanged during such a Facebook friend request, the commission still characterized this action as ex parte communication with counsel presently before the Court and held that the judge’s actions were in conflict with principles of the North Carolina Code of Judicial Conduct.
Here, the confusion arose not from the long understood prohibition on ex parte communication or the conflict of interest rules in MR 1.7-1.8 themselves, but rather from North Carolina’s application of these established/familiar principles to an online act that bar associations in many neighboring states have deemed harmless. In South Carolina, Kentucky and New York, for example, unlike in North Carolina, a judge may become online “friends” with attorneys practicing before them without fear of ethical conflict. Such uneven and conflicting applications of the rules to social networking activities are of great concern for legal professionals regarding their own online behavior, and precisely why the ABA and the respective State bar committees need to codify clearer guidelines on social networking usage.