Facebook, Twitter, and LinkedIn are among the top social media websites that have transformed electronic communications and social interactions culturally. Inevitably, these communication techniques have also affected litigation practice and are brimming with ethical traps. In 2009, the ABA warned of the following ethical pitfalls to avoid – and its advice still rings true today:
* Avoid using third parties to contact counsel, parties, or witnesses without expressly disclosing that the communication is on behalf of the attorney, law firm, or client.
* Never use deception or misrepresentation in communications—including use of aliases and screen names that do not clearly identify you.
* Always identify yourself and the purpose of your communications.
Contacting unrepresented non-parties in litigation through a third party may violate ethical rules prohibiting misconduct ion through deception. For example, Florida Rule of Professional Conduct 4-8.4 (c) prohibits attorneys from “engag[ing] in conduct involving dishonesty, fraud, deceit, or misrepresentation.” Rule 4-5.3 extends the prohibition against deception to non-lawyer assistants. Lawyers should be mindful of how existing rules of professional conduct and ethics applies to modern day technology and social media by continuing to review their applicable local rules.