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 has less room for interpretation. 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. Many bar associations, including the New York City Bar Association, have addressed what establishes online communication as it relates to the professional conduct rules.
Social Media Guidelines
Follow these social media guidelines 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. For example, if you have premium account on LinkedIn, people are not notified when you look at their profile. This would be ethical. If you have the free version, they are notified and it would be unethical.
- 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.
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, check with the City Bar Association’s rulings. You can also think about how a social media communication would translate as a traditional phone call or letter and conduct your actions accordingly.
1. ABA Model Rule of Professional Conduct 4.2.