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Ethics Byte

Web offers pearls of wisdom, but also legal tangles

By Diane Karpman

Social media and other online technology continue to present provocative issues throughout the legal system, from the courtroom to the lawyer’s office.

Diane KarpmanLos Angeles Superior Court has posted signs telling potential jurors not to use social media or Google. I find myself wondering how we practiced law before Google? My office routinely Googles everyone and everything. Google Scholar (with free online cases from all over the world) is invaluable and always open on my computer.

In a recent unpublished case from New Jersey, during voir dire a judge objected to plaintiffs’ counsel "Googling" potential jurors. The courthouse had just received Wi-Fi. I guess the judge didn't understand that meant people would actually be using it. The Appellate Division said that it was unreasonable for the court to order the plaintiffs’ lawyer to stop. The lawyer had the foresight to bring his laptop to court. Being prepared and competent cannot serve as a basis for judicial intervention in the "name of fairness or maintaining ‘a level playing field.’" Carino v. Muenzen, No. A-5491-0871, Superior Court of New Jersey, Aug. 30, 2010.

When a practice or technique becomes ubiquitous in the profession, it demonstrates a potential change in standards of conduct. Failing to routinely employ a free product — in this case Google — that is a wealth of information (almost universally embraced) could provide fodder in a subsequent legal malpractice claim.

Plaintiffs and defense lawyers routinely troll Facebook, which is permissible when it comes to public user content. However, several ethics opinions condemn pretextual “friending” to get access to private content. (Philadelphia, 2009‑02; New York State Bar Assoc. Opinion #843 (09/10/2010)). More discovery requests demand access to private portions of Facebook. It is quite possible that some clients have duplicitous private lives.

New York just issued a strange opinion involving a lawyer advising clients about social media. The opinion said the lawyer could advise a client to "take down" certain information from their Facebook account, provided that "such removal does not violate the substantive law regarding destruction or spoliation of evidence." (NYCLA #745, July 2, 2013) The opinion does note that applicable "state or federal law makes it an offense to destroy material for the purpose of defeating its availability in a pending or reasonably foreseeable proceeding." In other states, the ambiguous term "take down" might be construed as suppression of evidence.

You don't have to be an Internet genius to know that the "Wayback Machine" is an online Web page archiving service, with directions for finding deleted Facebook pages among the 240 billion pages posted since 1996. In other words, once it's on the Internet, it is out there and probably will be found. There are some ethics mavens who believe that advising a client to "take down" something suggests you too may become a part of the litigation as a witness.

You can advise clients what to post and how to use social media, but don’t advise anyone to “take down” information. You may already have policies regarding social media and employees. The cleanest way to handle these messy issues is at the inception of the relationship in the retainer. Ira Spiro of Spiro Moore LLP has an effective clause in his fee agreement:

“Clients must not mention anything about the lawsuit on Facebook or any other social media or website. The same goes for the events that led to the lawsuit, such as clients' employment (accident, etc.). Clients must not place anything on Facebook or any other social media or website that would be embarrassing or would be frowned on by a judge or a jury.”

Last night (while desperate to find a closing for this article beyond deadline) Aaron Sorkin’s television hit “Newsroom” came on. The reporters need to find certain tweets from 2009, in the Waziristan region. One young, bright reporter says, “Oh sure, use Topsy” (an online tool that searches content published on Twitter and the Web, sorted by relevance or date). The reporter cautions that they will have to get someone to interpret Pashto, the local language. Sorkin merely borrowed from real-life journalistic practices: CNN has several reporters dedicated to spotting Twitter trends, which they monitor 24/7.

Just another reason to remember that information on the Web often lives forever. When tweets in Pashto from Waziristan, Pakistan from 2009 can be located there is simply nowhere to hide.

Legal ethics expert Diane Karpman can be reached at 310-887-3900 or at