What's in a DOUBLE TAP? | Social Media and Lawyers

As mentioned in my last post, I’m in the process of establishing a law firm, a virtual office in DC where I would provide legal services that are predominantly transactional. Think drafting, reviewing, negotiating contracts and agreements. That might include drafting operating agreements for a limited liability company, negotiating consignment agreements for visual artists, or advising on non-disclosure agreements for a non-profit for the purpose of defining liability for volunteers. Writing is just what I do.

Furthermore, I’m interested in assisting small to mid-sized businesses with business entity formation, updating annual filings to ensure entity compliance with filing jurisdiction, and—with my favorite—trademark filings.

Fun, legal times are ahead!

In preparation, I’ve been reading opinions on Professional Responsibility Rules in search of how lawyers should behave on social media with (potential) clients, jurors, represented adverse parties, and unrepresented parties. It’s particularly nuanced right down to the double-tap.

It is unlawful for an attorney to communicate with a represented party, an individual being represented by another attorney, whether adverse party or witness. DC Ethics Opinion 371 explicitly describes how a friend request to a represented party amounts to a violation as the tap itself prompts communication, for you are, the lawyer, asking the represented party for something.

In doing a close reading on this and thinking of crafty scenarios, I’m compelled to ask: “Have you ever double/single-tapped content on accident?” I have once or twice before … on pictures of a stranger … no solicitation for legal services … but maybe I looked too long or tried to enlarge the picture. And without much effort, I inadvertently tapped, and the heart reddened. It’s a “like!” But it happened. And it’s too awkward to untap to unlike the picture after liking the picture, so of course, I just leave and forget about it. Lots of overthinking here. I know. But I’m not the only one. You’ve done it too.

Can you imagine explaining before the Bar and Superior Court how you inadvertently, double-tapped requesting the represented party to be your friend on social media? The Rules of Professional Conduct demands charges every lawyer to perform zealously, to investigate, to do her due diligence. It’s actually encouraged to review a represented party’s social media page when that party is opposing or a witness in the pending matter.

An attorney just can’t tap anything. Ewwww … Can you imagine being prompted to review a represented, adverse party’s social media page to see if he is letting off steam after a long day of trial and having to be so careful to review his page without double-tapping? You must have hands of a surgeon! I’m obviously making fun of a serious matter especially when the article does not describe the possible communication in double-tapping (however, accidentally) for a like.

What is in a like? What is in a double-tap? Are we communicating to one another in liking?! Of course we are. This Opinion does not explore the communication that is double-tapping and probably for good reason. There’s a debatable gray area. But I wonder if the accidental double-tapping of an adverse, represented party’s picture is analogous to making a friend request. Thoughts?

Furthermore, one can argue that double-tapping and making a friend request are not analogous because in making a friend request, a lawyer is asking to see a represented party’s social media page and all of its content that is protected by privacy settings; hence, the friend request. The friend request button is typically on another page or in a different corner, a distance away from the party’s pictures. And so by placement alone, it would be difficult for a lawyer to argue that he inadvertently made a friend request since the button stands alone on a separate page. It would have happened with intent, to eliminate the protective wall that a privacy setting provides in order to review content. And this is unethical.

And, on the other hand, double-tapping is simply a like to a user’s content. But it’s all communication, right?!

There’s so much pressure in a TAP!

This does not create an attorney-client relationship, and this is not to be construed as legal advice.