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36 Alaska B. Rag 1 (2012)

handle is hein.barjournals/askabar0036 and id is 1 raw text is: If your life is changing, how does it affect your practice? By Cliff Groh You just paid your Bar dues for 2012 (or at least you should have). Have changes in your health, your financial situation, or your interests made you want to review your relationship with the Alaska Bar Association? Maybe you want to stop working for a while, or maybe you want to get out of the practice of law altogether. How do you explore your options for leaving active status with the Bar? A number of Alaska lawyers know little about this subject, perhaps be- cause the topic seems remote to most attorneys and perhaps because the relevant information is not gathered in a handy guide in one place. To school yourself, you could read the Alaska Bar Rules, the Bylaws of the Alaska Bar Association, the website of the Alaska Bar Associa- tion, and the Standing Policies of the Board of Governors of the Alaska Bar Association. You could also call (907) 272-7469 and speak with Deborah O'Regan, the Association's Executive Director, who stands ready to answer your questions about getting out of active status. Or you could start by reading this article. Maybe you could clip it and save it for future reference. Continued on page 19 WAN-Qs V©oul swe§s? Social networking poses ethical dilemmas By Kevin Cuddy Social networking websites have opened a new frontier for many law- yers to get access to easy, efficient, and inexpensive fact-gathering. These websites enable and encourage users to post a wide array of information about themselves to be shared with others. With a few clicks of the mouse in these networks, you may be able to learn a surprising amount of infor- mation about your adversary and potential witnesses - educational background, job history, marital status, religious beliefs, whom they know, where they have been, and how they spend their time. For example: Was John Doe really bed-ridden for a month after the car accident, as he claimed in the lawsuit he just filed against your client, or was he instead playing beach volleyball in Hawaii as his vacation album on Facebook shows? Access to this information is often limited only by the poster's willingness to share, his or her un- derstanding of the privacy settings for the website, and the lawyer's own ethical duties. This article highlights some of the ethical considerations that lawyers face while using social networking websites in connection with their practice. The odds are high that your client and/or your adversary in most cases will be a member of one more of these social networking sites. Facebook alone boasted 160.9 million visitors in June 2011, with Linkedln and Myspace tallying 33.9 million and 33.5 million, respectively. [1] Given the immensely valuable information that can be obtained through social media, it is perhaps not surprising that lawyers in various jurisdic- tions have tested some of the ethical boundaries in their efforts to zealously represent their clients. How far is too far? How do the rules of professional conduct apply in this setting? While neither the Alaska Bar Association's Ethics Committee nor the Board of Governors has acted on the issues raised in this article, these are important issues for you to keep in mind while considering how to use social networking sites ethically in your own practice. Here is a small sampling of the ethical issues arising from the use of social networking sites, and how different ethics and disciplinary committees have addressed those issues. Can you look atyouropposing party's publtc social networking pages even if you were not part of he intended audience? Generally speaking, yes. Privacy settings for the particular content are usually dispositive. If the oppos- ing party has made his social media content available to the general public (which isfrequentlythedefauk mode), there is nothing improper about coun- sel viewing that same content. It does not matter whether the other party actually intended that a lawyer - or anyone else - would or would not be able to view this information. What matters is whether the party took affirmative steps to shield it from public disclosure. If the party took no such steps, then it is fair game. [2] Because viewing public content does not require any communica- tion with the party, Alaska Rule of Professional Conduct (Rule) 4.2 is not implicated. [3] What if the opposing party used privacy settings to make certain content off-limits to the public - can you friend her to gain access to her private social media content? A quick explanation for those unfamiliar with social networking parlance: Some of the more popular social networking websites (e.g., Facebook) allow users to keep certain content private and disclose it only to approved friends. The act of seek- ing access to this private content is through a friend request. Where the purpose of friending the opposing party is to gain access to information that will be used in the litigation, this will likely be deemed an improper communication with a represented party. [4] How does the analysischange if the person you want to friend is an unrepresented witness, rather than a party? This gets more murky. Rule 4.2 does not apply because the witness is unrepresented, but Rules 4.1 (truth- fulness in statements to others), 4.3 (dealing with an unrepresented person), and8.4 (engaging in conduct involving dishonesty or misrepresen- tationis misconduct) may well apply. The Philadelphia Bar Association's professional guidance committee concluded that the act of friend- ing the witness would violate Rule 8.4(c) because the lawyer would be omitting a material fact - namely, that the requester is a lawyer who is seeking access to information for use in a lawsuit.[5] The New York City Bar's pro- fessional ethics committee took a different view, concluding that a lawyer could properly friend an unrepresented witness so long as the lawyer used his real name and profile to send thefriend request.[6]lUnlike the Philadelphia opinion, the New York opinion had no problem with the lawyer declining to disclose his reasons for making the request. Any use of affirmative deception- e.g., us- ing an assumed name to convince the witness to accept the friend request - would violate Rules 4.1 and 8.4(c). Wat if I use a secretary or investigator to make a friend request to the witness? The use of a third-party-whether a secretary or private investigator or otherwise - does not alter the analysis. Per Rule 5.3, the lawyer is responsible for the conduct of a nonlawyer who is employed, retained by, or associated with the lawyer, and must make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer. The lawyer will be found responsible for conduct of the nonlawyer that would be a violation of the Rules if engaged in by the lawyer if, for example, the lawyer orders or knowingly ratifies Continued on page 20

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