Mindful Ethics:
Professional Responsibility for
Lawyers in the Digital Age

Class Eight
October 17, 2017
Social Media Savvy: The New Normal?


Pedro continues to expand his civil practice into new areas relying on his listserv colleagues, outsourcing, CLE seminars and his blog to network and learn new areas. He has assisted friends in resolving some minor auto accident cases and one day receives a referral that involves a car accident with a fatality. Tragically, a cement truck that ran a red light collided with the client’s car. The client’s wife did not survive the crash and the client wants to file a wrongful death claim.

Pedro decides to take the case; however, during discovery he begins to regret his decision when he receives interrogatories and a request for production of documents that asks for a copy of the client’s Facebook account. The discovery request contains a screen shot of his client's Facebook account with a photo of him out partying shortly after the accident. Pedro immediately calls his client and yells at him about the ramifications of a jury seeing that type of picture and instructs the client to clean up his Facebook page while Pedro contemplates his next move. The client, shaken up by Pedro’s anger, deletes his account.

Pedro posts the dilemma on the listserv for suggestions; he receives several suggestions as listserv members enter into a lively debate about the use of social media evidence. Some of the members assert that social media evidence is inherently unreliable and ridiculous. Some of those members proclaim their adherence to traditional evidence and methods of practicing law. Another contingent of Listserv debaters adamantly insist that if an attorney does not understand and incorporate social media into the practice of law, he is not only behind the times, but also risks being deemed incompetent.

Suggestions on the listserv range from those specific to Pedro’s dilemma to everyday practice tips such as conducting a preliminary social media investigation of the case, advising a client about posting and removing social media, and social media discovery strategies.

Pedro begins to realize not only that he must immediately contact his client about the contents of his Facebook account, but also that Pedro should think about social media from whenever a client walks in the door through the trial or settlement of the case.

Questions

Please answer concisely, but completely and include references to the applicable Rules of Professional Conduct, Ethics Opinions and the assigned reading.

1. How does the use of social media in the practice of law implicate the legal ethics issues and which rules of professional conduct are particularly impacted?

2. Do you think that the legal profession needs new rules to address social media?

3. Should Pedro be held responsible for his client’s social media conduct? Why or why not?