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The rise of social networking sites (such as Facebook, MySpace, Twitter and the like) over the last decade has proven little short of a phenomenon. I am constantly amazed at the sheer level and detail of information, both written and pictorial, that users upload onto these sites. That the vast bulk of this information is banal to say the least does not prevent other users from seeking to quench an ostensibly insatiable appetite for knowledge pertaining to the minutiae of the life and times of their ‘friends’. The trend to multiply ‘friends’, coupled with various networking sites that can be viewed by all and sundry, seems to relegate notions of individual privacy as passé.

Curiously, though, the surge in online social networking has occurred at a time when there have emerged heightened concerns over individual privacy. There is a push in Australia to give individual privacy a legal foundation in substantive law, whether by way of a dedicated privacy tort (as exists in the US and, more recently, New Zealand)¹ or by statute (as recommended by the Australian Law Reform Commission).²

Lawyers are often at the forefront of calls for privacy protection but, in this instance at least, utilise social networking sites (for both private and professional ends) no less, it appears, than others in the population.  

 

Whatever may be the tensions between publicity and privacy in this environment, social networking (and associated blogging) has more than its fair share of perils for lawyers. What appears on private social networking sites (and this may include comments from others) may have the capacity to potentially compromise lawyers’ professional obligations or at least present a professionally unflattering persona.

The perils are magnified for at least two reasons. First, there is the very informality that underscores these websites, especially where they are used in a personal capacity. Just as there is a tendency to be less vigilant with framing the content of an email than the content of a formal signed letter, even more the nature of written comments and pictorial representations on social networking sites often hardly reveal a considered expression. 

Second, unlike traditional oral or written communications, which are ordinarily addressed to a limited class of persons, the (often unguarded) communications that appear on the internet have a far broader potential audience. The outcome is exacerbated where the communications appear on a public site, where many social networkers seem to view the number of their ‘friends’ as a barometer of their own popularity, making ‘friendship’ in this context a loose term indeed.

The foregoing has prompted the Victorian Bar to issue an “Ethics Committee Bulletin” reminding its members that the rules of professional conduct “apply equally to their activities on social networking sites ... as they ordinarily do in other aspects of their day-to-day professional and personal lives”.³ It warns members to eschew publishing anything on a social networking site that:⁴

The Bulletin, by way of example, warns against posting a flippant or sarcastic comment about a fellow member of the Bar, the judiciary, a client or a matter in which counsel is briefed.⁵ The US has already witnessed lawyers who have been disciplined for inappropriate use of their own sites, including for criticising a judicial officer or inadvertently disclosing confidential information.⁶

Social networking sites have also seen use in the professional arena. Beyond the apparent marketing objectives that they may serve (many law firms in Australia have Facebook sites, for instance), these sites may be used as evidence-gathering tools. When the sites in question are public, there is no ethical impediment to browsing their content to discover evidence unfavourable to an opposing client or witness.⁷ Ill-considered postings of words or photographs can provide fertile ground for discrediting the claims of an opponent. 

The ethical position is likely to diverge when the site in question is open only to the relevant person’s ‘friends’. To encourage a third party to “friend” an opposing client or witness, with the express intention of unearthing material contrary to that person’s interests, borders on the dishonest.⁸ When the opposing client’s site is involved, a breach of the “no contact” rule⁹ may also be triggered. 

Social networking sites, for all their benefits, therefore present ethical challenges to members of the legal profession. Being too social can have a price, so it behoves lawyers to exercise some restraint in personal expression on social networking sites, as well as encouraging clients to exercise corresponding restraint.  

¹ See, for example, Hosking v Runting [2005] 1 NZLR 1.

² See Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice (Report 108, August 2008) (recommending that “[i]ndividuals should be protected from unwanted intrusions into their private lives or affairs in a broad range of contexts, and … that a statutory cause of action is the best way to ensure such protection”: para 74.117).

³ Victorian Bar Inc, “Ethics Committee Bulletin No 2”, 2010, clause 1.

⁴ Ibid clause 2.

⁵ Ibid clause 3.

⁶ See S. Seidenberg, “Seduced: For Lawyers, the Appeal of Social Media is Obvious. It’s Also Dangerous” (available at www.abajournal.com/magazine, accessed 1 March 2011).

⁷ The New York State Bar Association has issued an ethics opinion to this effect: see Op 843 (10 September 2010).

⁸ The Philadelphia Bar Association’s Professional Guidance Committee has issued an ethics opinion to this effect: see Op 2009–02 (March 2009).

⁹ See Professional Conduct and Practice Rules 1995 (NSW), r 31.