Question

I recently read about a Wisconsin case concerning the existence of a conflict of interest for a judge because the judge and a litigant before the judge were friends on Facebook. Is this something I should be discussing with my clients?

Answer

As I have often said, the area of social media and its ethical implications is an ongoing and ever-changing environment. Things change so fast that it is hard to provide guidance on how lawyers and judges should interact on social media, especially when dealing with legal issues. The Wisconsin case, Miller v. Carroll (In re Paternity of B.J.M.), 2019 WI App 10, concerned a judge who accepted the Facebook “friend” request of an individual who had a legal matter pending before the judge. The Wisconsin Court of Appeals ruled that this resulted in the judge having a conflict and that the judge should not have continued to rule on the case.

It is clear that a lawyer must follow the lawyer advertising rules when using Facebook to talk about the lawyer’s experience and legal practice. That means that the lawyer must ensure that any communication about his or her law practice is not false or misleading. It is also clear that a conflict of interest can arise based on statements that are made on Facebook, although questions remain whether being Facebook friends rises to the level of an attorney-client relationship or a relationship that suggests bias. It is simply too early to say there is a definitive answer on the consequences of friending another person on Facebook.

One thing is clear: a lawyer must consider the potential consequences of a client’s behavior on Facebook and must provide advice to clients on what they should or should not do with Facebook activity. For example, lawyers should advise their clients that anything posted on Facebook is fair game for use by an opposing party in litigation. Lawyers also must advise clients that they cannot delete information posted on Facebook if the matter is subject to a litigation hold obligating the client to preserve evidence or information related to a claim. In other words, lawyers must think about the social media implications of clients’ conduct and advise clients what they should and should not do with social media accounts.

This is an ever-changing area of consideration under the ethics rules. Lawyers must understand that what they post to a Facebook page could be considered lawyer advertising depending on the nature of the information posted. Lawyers also should be sensitive to the privacy standards of a social media page in order to protect information or to ensure that information is disclosed only to appropriate parties. The relevant considerations are evolving, and lawyers should remain aware of the potential consequences of their own and clients’ activities on social media.

Lawyers also should be sensitive to the privacy standards of a social media page in order to protect information or to ensure that information is disclosed only to appropriate parties.