March 20, 2016

Game of Twitter – Social Media and Its Impact on the Practice of Litigation

These days, if you were to leaf through the pages of a newspaper – whether online or in paper form – it is more likely than not that you would come across an article chronicling how Internet-based social media is disrupting some facet of contemporary life. The news piece could be about any one of a sizable number of activities and industries that are experiencing the impact of social media technology – whether travel and dating, or international security and political fund-raising, to name only a handful. In recent years, the practice of law, particularly litigation, has also joined this crowded field.

While litigation may not be associated with cutting-edge technology in the popular imagination, social media has steadily come to influence every stage of a litigator’s practice, from prefiling investigations, through discovery and trial, and on to appeal. At its core, social media offers new means of communication and research, which are two critical components of litigation practice. Yet, the proliferation of these instant and often anonymous tools presents a plethora of issues for the litigator.

At present, the rules of professional conduct are stuck playing catch-up. The rapid innovation of social media’s capabilities is outpacing the ethical provisions that govern an attorney’s use of these new tools. State bars throughout the country are grappling with reaching a definition of when, and under what conditions, it is permissible for lawyer to employ social media as a part of legal practice. The results have been varied as states have addressed these issues in different ways.

This article will explore the model rules that inform the use of social media by attorneys as well as certain recent judicial decisions in which courts have applied these rules to a lawyer’s conduct. Still, it behooves a careful practitioner to understand and keep tabs on ethical rules in force in the jurisdictions in which she practices. This area of legal ethics is unsettled. As social media continues to introduce new technologies of broader capabilities and greater sophistication, the rules of professional conduct governing their use will likewise need to evolve. In sum, the rules and cases discussed below are part of an ongoing dialogue as legal ethics rules adapt to the increasingly enhanced toolkits in the hands of litigators.

Social Media and Communicating with a Judge

Social media is often treated as a form of entertainment that is part of an expanding digital playground. Still, despite its reputation as a place for fun, social media is also means of communication. As such, when using social media, lawyers should remain mindful of the professional conduct rules that govern communications, particularly contacts with judges. For example, state ethics rules may vary about whether it is permissible for an attorney to “friend” a judge on Facebook. Either way, it is incumbent on attorneys to ensure that their social media interactions with judges comply with the applicable ethical rules.

The primary model rule on this issue, titled “Impartiality and Decorum of the Tribunal,” is Model Rule 3.5. It provides: “A lawyer shall not: (a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law; (b) communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order; . . . or (d) engage in conduct intended to disrupt a tribunal.” The accompanying comment to this rule explains that in addition to improper influence under criminal law, a lawyer must avoid contributing to violations of the ABA Model Code of Judicial Conduct, with which lawyers should be familiar.

These principles were front and center in the case of In re McCool, in which the Louisiana Supreme Court recently disbarred an attorney for violating Rule 3.5 through her improper use of social media. By way of background, the defendant, Joyce Nanine McCool, was friends with Raven Skye Boyd Maurer, who was involved in a bitter custody dispute in Mississippi before Judge Deborah Gambrell. Maurer was seeking to terminate the parental rights of her ex-husband on the grounds that he had sexually abused both of their young daughters. McCool was not admitted to represent Maurer in the Mississippi action, but she offered to help Maurer as a friend. Ultimately, Judge Gambrell denied Maurer’s motion to terminate her ex-husband’s parental rights.

Separately, McCool was representing Maurer’s new husband in his effort to adopt Maurer’s two daughters in Louisiana. There, Judge Dawn Amacker stayed the adoption proceedings pending the resolution of the Mississippi litigation. Judge Amacker also denied an emergency motion to exercise subject matter jurisdiction over the custody dispute.

Apparently displeased with the judges’ decisions in both matters, McCool decided to take a different tact via the Internet. She mounted an online petition campaign on Change.org directed at both judges. One of the petitions McCool drafted called for the judges to issue particular rulings regarding the custody of Maurer’s two daughters. It included statements such as “Call Judge Amacker and Judge Gambrell to ask why they won’t follow the law and protect these children,” “Insist that Judge Amacker and Judge Gambrell do their jobs,” and “Let them know you’re watching and expect them to do their job and most of all, make sure these precious little girls are safe!” Alongside the petitions, McCool posted the judges’ contact information. These petitions did not go unnoticed. Allegedly, hundreds of people called, faxed, or emailed the judges’ offices about the custody battle. Some even stopped by Judge Gambrell’s offices. Separately, McCool sent out hundreds of tweets roundly criticizing how the judges were handling the matters, many of which offered links to the online petitions.

At the disciplinary proceedings, McCool claimed that her actions were protected by the First Amendment and that she was availing herself of the political process because the judges at issue were elected officials. The Supreme Court of Louisiana did not agree. As it stated, “[t]he appropriate method for challenging a judge’s decisions and evidentiary rulings, as respondent even conceded, is through the writ and appeal process, not by starting a social media blitz to influence the judges’ and this Court’s rulings in pending matters and then claiming immunity from discipline through the First Amendment.” The court found that McCool’s social media conduct had violated Rule 3.5 by improperly attempting to influence the judges. The court reasoned: “Rather than protected speech, the evidence clearly and convincingly shows respondent’s online and social media campaign was nothing more than an orchestrated effort to inflame the public sensibility for the sole purpose of influencing this Court and the judges presiding over the pending litigation.” In deciding to disbar McCool, as opposed to suspending her as it had when addressing other attorneys’ violations of Rule 3.5, the court found her case was distinguishable because she used social media to facilitate her misconduct, including during the pendency of the proceedings against her.

Social Media and Public Relations

On occasion, the merits of a litigation may be battled not just in the courtroom but also in the court of public opinion. Some of the battlegrounds for these public disputes may be social media sites. To the extent a litigator becomes involved in a client’s public relations efforts, including any attempts to counter negative publicity about the client, he should proceed with caution and remain mindful of the ethics rules that govern this type of conduct.

In particular, Model Rule 3.6(a) provides:

A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.

This provision has been supplemented by other sources. For example, the New York State Bar Association’s (NYSBA) Social Media Guidelines expressly permit a lawyer to advise a client in formulating new social media content, but the lawyer must ensure that all information is truthful. Indeed, the NYSBA guidelines recommend that an attorney follow his client’s social media activity after first informing the client.

As to a lawyer addressing negative publicity about a client, Model Rule 3.6(c) sets the following standards:

A lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.

This provision has several notable components. The first is the triggering mechanism. The recent publicity to which the lawyer’s public statements are responding must not have been initiated by the lawyer or her client. The second is the standard of care. The lawyer’s public statement will be judged according to the objective standard of a “reasonable lawyer.” The third notable component is the scope of the lawyer’s public statement. It must be required to remedy “the substantial undue prejudicial effect of recent publicity,” and may only disclose as much information “as is necessary to mitigate” that publicity.

The standards set out in these two model rules raise some unique concerns in the context of social media. Under what circumstances would a lawyer’s statements on a social media site have a substantial likelihood of materially prejudicing the outcome of a trial? Similarly, when would negative comments about a lawyer’s client on social media rise to the level of having a substantial undue prejudicial effect? A state ethics board may be able to appreciate the potential damage done by negative publicity in traditional media, such as a disparaging story broadcast on a television news program or published in a widely read magazine. It may be more challenging for the state ethics board to evaluate the effect of some intermittent posts on Facebook or Twitter.

While a lawyer may be able to aggregate comments from many social media users to show significant prejudice, a further challenge lies in deciding what information is necessary to respond to the publicity. Since not every comment will cause substantial prejudice, the model rule presumably restricts a lawyer to responding to only certain discussions. Finally, many clients may already have a presence on social media. The frenetic dynamics of social media, as communications ping their way about the Internet, may complicate the drawing of lines in the technological sand as to whether the publicity at issue was initiated by the client or another source.

Courts have already begun to address some of these issues. As shown in the recent Fifth Circuit decision in United States v. Bowen, 799 F.3d 366 (5th Cir. 2015), improper statements by a lawyer on social media can endanger not only her bar license, but also her client’s case. There, several criminal defendants, who were officers in the New Orleans Police Department (NOPD), moved for a new trial by arguing that the U.S. Attorney’s Office had orchestrated a secret public relations campaign against them after it was revealed that federal prosecutors had commented about their case on NOLA.com (the electronic version of the Times-Picayune newspaper, published in New Orleans). The defendant police officers had been convicted after several weeks of trial for crimes relating to the shootings on the Danzinger Bridge in the wake of Hurricane Katrina.

The revelation of these social media comments by members of the U.S. Attorney’s office came only at the end of a winding path. The comments had not been made openly. The prosecutors had used pseudonyms when posting on NOLA.com. In many of the posts, one of the prosecutors, writing under the pseudonym Mencken1951, used florid language. For example, a comment of his referred to the NOPD as “a collection of self-centered, self-interested, self-promoting, insular, arrogant, overweening, prevaricating, libidinous fools.” This pseudonymous commenter would also employ archaic words, such as “dubiety” and “redoubt.” These traits caught the eye of a local defense attorney, who was defending a businessman facing a federal investigation unrelated to the Danzinger Bridge prosecutions. Struck by the language in the posts, the defense lawyer compared it to a recent legal brief filed by the U.S. Attorney’s Office in his case and found the statement: “Their representations would be fraught with dubiety.”

To drill down on his hunch that Mencken1951 was in fact a federal prosecutor, the lawyer hired a 20-year FBI veteran specializing in forensic linguistics. Comparing the online comments to the language used in the federal filing, the linguist concluded in a report that the writings were “CONSISTENT to the degree of Highly Distinctive.” Based on this analysis, the defense lawyer filed a defamation action on behalf of his client against “Mencken1951,” who was alleged to be someone in the U.S. Attorney’s Office. In the wake of this suit, a top lieutenant in the U.S. Attorney’s Office admitted that he had written the posts at issue. The ensuing investigation found that two other federal prosecutors had also posted social media comments on NOLA.com regarding active criminal cases, defending the U.S. Attorney’s Office and attacking critics.

Seizing on these developments, the five defendants convicted in the post–Hurricane Katrina Danzinger Bridge shootings moved for a new trial based on the pseudonymous social media posts made by federal prosecutors about the criminal cases throughout their duration. The federal trial judge, Judge Kurt D. Engelhardt, granted the motion. In a 128-page opinion, the court found that the prosecutors’ egregious misconduct made a showing of prejudice unnecessary, but that the record contained sufficient evidence of actual prejudice. Judge Engelhardt found that the prosecutors’ comments contributed to “an overriding tenor of guilt in the community.” Though no evidence was submitted showing the effect of the commentary on any specific juror, seven of the 12 jurors acknowledged in a pretrial questionnaire that they read NOLA.com. The same questionnaire revealed that those NOLA.com readers had less confidence in the honesty of NOPD officers. While the effect of the specific comments on the jurors was likely unknowable, Judge Engelhardt explained that “[e]ven if [the jurors] followed the Court’s instructions precisely, they still would have been exposed to the general zeitgeist of the community, which was being influenced by [the AUSA].” He further described the prosecutors’ ethical lapses as having created an “online 21st century carnival atmosphere.” This decision was affirmed on appeal by the Fifth Circuit, which found that the “reasons for granting a new trial are novel and extraordinary.”

Social Media and Juror Research

Social media also offers a litigator a new source of potentially relevant information when researching prospective jurors. The Internet may appear limitless, but that does not mean juror research using these means is unlimited. While digging through these piles of data in the search of pay dirt to help decide which prospective jurors to select, a litigator should bear in mind how the ethical rules restrict the permissible scope of juror research.

Model Rule 4.4(a) forbids an attorney from representing a client by using “means that have no substantial purpose other than to embarrass, delay, or burden a third person.” The ABA Commission on Ethics and Professional Responsibility has opined that lawyers may passively view the publically accessible portions of jurors’ social media pages. Even so, they may not actively “friend” jurors in order to gain access to private portions of their social media accounts because doing so is considered a communication with the juror, which is prohibited under Model Rule 3.5(b). Attorneys cannot circumvent this rule by using a third party to engage in social media correspondence from which they themselves are barred. Because “[a] lawyer may not do through the acts of another what the lawyer is prohibited from doing directly,” having a paralegal send an access request to a juror would also violate Model Rule 3.5. When a social platform sends an automatic notification that the juror’s profile has been passively viewed, however, this does not amount to an improper communication with the juror, according to the ABA.

On this point, the ABA opinion differs from those of the New York State, New York County, and New York City bar associations. While the New York bar associations have declined to state whether an automatic notification would provoke discipline, it is clear that “a lawyer in New York when reviewing social media to perform juror research needs to perform such research in a way that does not leave any ‘footprint’ or notify the juror that the lawyer or her agent has been viewing the juror’s social media profile.” As noted in the NYSBA’s guidelines, it is unclear whether a lawyer may ethically view private portions of a juror’s social media presence that the lawyer is authorized to view, whether as a “friend” of the juror or as a member of a private social network, such as an alumni page.

The unsettled nature of these issues, as with others at the intersection of social media and legal practice, may encourage a litigator to tread lightly while crossing these shifting sands.

Moving Forward

While the future always remains uncertain, the significant developments in social media over the last decade certainly suggest that the practice of litigation is in for more technologically driven change ahead. Recently promulgated rules insist that it is not only advisable but also obligatory for an attorney to keep informed of these developments. In 2012, the ABA adopted an amendment to ABA Model Rule of Professional Responsibility 1.1, comment 8, providing that “a lawyer should keep abreast of changes in the law and practice, including the benefits and risks associated with relevant technology. . . .” Since then, 15 states and counting have adopted comment 8 to their rules of professional conduct, including Arizona, Arkansas, Connecticut, Delaware, Idaho, Illinois, Kansas, Massachusetts, Minnesota, North Carolina, Ohio, Pennsylvania, West Virginia, and Wyoming.

In the end, social media offers attorneys with a constantly expanding set of tools for litigating an action. In using them, however, litigators should remain mindful of the evolving ways in which the employment of social media technologies intersects with the rules of professional conduct.

Additional Resources

For other materials on this topic, please refer to the following. 

In The Know

Facing the Challenges of Social Media Compliance in Corporations (Access PDF, audio, and video here)
This panel will examine the laws governing use of social media in the workplace and provide practical advice regarding social media policies. The panel will also discuss the offensive and defensive use of social media in litigation, best practices for implementing “bring your own device” policies, and compliance programming. 

The Business Lawyer

Developments in Employment Law and Social Media
By Charles J. Stiegler
Vol. 71 Winter 2015–2016 

Business Law Section Program Library

Game of Twitter: Litigation in the Age of the Internet (PDF) (Audio)
Presented by: Business and Corporate Litigation, Cyberspace Law
Location: 2015 Annual Meeting

The Scary Side of Social Media (PDF) (Audio)
Presented by: Consumer Financial Services
Location: 2014 Committee Meeting

Business Law Today

Discovery and Preservation of Social Media Evidence
By Margaret (Molly) DiBianca
Vol. 23 No. 5 January 2014