Do you know how what social media ethics guidelines your firm should follow? People’s willingness to disclose personal information on social media can be particularly helpful in the discovery phase of litigation. Snooping on opposing parties, witnesses or jurors through social media can provide a treasure-trove of information that might have once taken a private investigator months to obtain. However, lawyers need to be aware of the emerging ethical violations that could result from their online sleuthing activities.

Before Facebook, Instagram and LinkedIn, the Model Rules of Professional Conduct addressing communication with non-clients were a little more cut and dry. For example, Model Rule 4.2 advises that “a lawyer shall not communicate with a person known to be represented by another lawyer in the matter, unless the lawyer has consent or is authorized to do so by law.”1

Trying to interpret how social media’s communication features align with the professional conduct rules has ethics experts scratching their heads. A few bar associations have addressed what establishes online communication as it relates to the professional conduct rules.

San Diego County Bar Association social media ethics rulings

The San Diego County Bar Association reviewed a case where the plaintiff’s attorney was friending unhappy current employees of the defendant company with the intent to use information to advance the interests of his client.

The committee acknowledged that social media has opened a broad platform on which people can place personal information, but that the ethics rules impose limits on how attorneys may obtain information shielded by privacy settings.

They said an attorney is barred from making a friend request of a represented party but that they can friend an unrepresented party, if they disclose the purpose of the request. Essentially, the opinion determined that no one—represented or not—should be misled into accepting an online friendship.2

New York City Bar Association social media ethics rulings

The New York City Bar Association’s Committee on Professional and Judicial Ethics also considered this query. They agreed with the San Diego opinion that an attorney cannot friend a represented party.

However, they made a distinction. The New York City Bar Committee said if the attorney uses their real name and profile to send a request to an unrepresented person, they do not have to disclose the reasons for making the request.3

Philadelphia Bar Association social media ethics rulings

In a recent personal injury case, two New Jersey defense attorneys were scanning a plaintiff’s Facebook page, which was open to the public. They saved comments, pictures and videos that supported their client’s case. Soon after, following the advice of his counsel, the plaintiff made his profile private. Undeterred, the defense attorneys asked a female paralegal to send the plaintiff a friend request, which he accepted. The attorneys started collecting information on the plaintiff, including videos of him wrestling and partying, which they intended to use to impeach his claims of permanent injuries.4

Again, Model Rule 4.2 prevents attorneys and their staff from personally contacting represented clients without consent from their counsel. In this case, the plaintiff’s counsel argued that improper party contact occurred when the defense attorneys’ paralegal sent a friend request without seeking permission from the plaintiff’s attorney.

After an investigation, the New Jersey ethics office filed a formal complaint against the defense attorneys for:

  1. Communicating with a represented party
  2. Failing to supervise a subordinate lawyer
  3. Failing to supervise a nonlawyer assistant
  4. Inducing another to violate the rules of professional conduct
  5. Conduct involving dishonesty, fraud, deceit and misrepresentation
  6. Conduct prejudicial to the administration of justice

The Philadelphia Bar Association Professional Guidance Committee took this analysis a step further. They considered whether a lawyer looking to access restricted social networking pages of an unrepresented witness may enlist a third person.

Like the New Jersey case, the third person would use their real name, which the witness would not recognize, and would not reveal that they are affiliated with the lawyer or the true purpose for seeking access.

Ultimately, the committee said a lawyer cannot hire a third person to friend an unrepresented party to gain access to their restricted pages because they are merely working on the attorney’s behalf.5

These cases and opinions reveal the challenge judges and ethics experts are facing. Determining the appropriate balance between access to public information and intruding on the attorney-client relationship is a fine line.

Social media ethics guidelines

Based on the case law and opinions on these scenarios, lawyers should avoid communication with represented parties on social media. Follow these tips to ensure an ethical practice:

  • Do not send friend, follow or connect requests to opposing parties known to be represented by counsel to gain access to those parties’ private social media content.
  • You can view publicly accessible social media content, as long as it does not trigger communication or notify the represented party.
  • Err on the side of caution if you communicate with unrepresented third parties on social media.
  • You may passively review a juror’s public presence on the Internet, but may not communicate with a juror.
  • Do not conceal your identity by using pseudonyms or other peoples’ accounts to gain access to a juror’s website or to obtain information.
  • Never unlawfully alter or destroy evidence or assist others in doing so, including social media content.
  • You may advise a client to remove social media content relevant to the foreseeable proceeding, as long as the information or data is preserved.

Always stay up to date on recent decisions and opinions. Walking the fine line between minding the ethics rules and defending a client could make the difference between great trial strategy and a serious ethical violation. When in doubt, think about how a social media communication would translate as a traditional phone call or letter and conduct your actions accordingly.

 

Erin McCartney, Esq.Information provided by Attorney Protective is not intended as legal advice. This publication provides best practices for use in connection with general circumstances, and ordinarily does not address specific situations. These best practices are not intended to meet or establish the standard of care, and sometimes recommend practices that exceed the standard of care. Specific situations should be discussed with legal counsel licensed in the appropriate jurisdiction. By publishing practice and risk prevention tips, Attorney Protective neither implies nor provides any guarantee that claims can be prevented by use of the suggested practices. Though the contents of Attorney Protective’s Best Practice Database have been carefully researched, Attorney Protective makes no warranty as to the accuracy, applicability or timeliness of the content. Anyone wishing to reproduce any part of the Attorney Protective Best Practices Database content must request permission from Attorney Protective by calling 877-728-8776 or sending an email to erin.mccartney@attorneyprotective.com. Additionally the rules cited in the contents of this article may have since changed. You should check the laws and model rules in your state for specific information on the topics addressed here.

  1. ABA Model Rule of Professional Conduct 4.2.
  2. San Diego County Bar Association Legal Ethics Opinion 2011-2.
  3. The Association of the Bar of the City of New York Committee on Professional and Judicial Ethics Formal Opinion 2010-02.
  4. John J. Robertelli v. The New Jersey Office of Attorney Ethics (A-62-14) (075584) (New Jersey Supreme Court 4/19/16).
  5. The Philadelphia Bar Association Professional Guidance Committee Opinion 2009-02.