With the popularity of social media, a great deal of information that was once considered private has now been made public. Millions of people use social media platforms to share their photos, thoughts and activities. For lawyers, information disclosed on social media can often be important evidence in legal proceedings. But there are ethical considerations concerning when and how social media may be used as evidence in a court of law.
Lawyers need to consider whether using social for evidence may be an ethical breach in the context of a particular case. Snooping on opposing parties, witnesses or jurors through social media may provide much information, but the way a lawyer gains access to such information can be deemed unethical, which could lead to a claim.
Rules of Communications with Non-Clients
Unfortunately, the rules for social media ethics are not cut and dry. ABA 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
When Facebook, LinkedIn, Instagram and other social media platforms did not exist, following these ethical guidelines was easier. But advancing technology offers new complications for the rules that were drafted before these platforms came about.
Courts and bar associations have addressed the issue of social media information as evidence but interpreting how the technology’s features align with professional conduct rules remains an ongoing process for ethics experts.
Allowance of Social Media in Discovery
Courts have allowed discovery of social media information when lawyers can show relevance to their case. In New York, a semiprofessional basketball player filed suit after a vehicle accident, claiming it had made him disabled.
Counsel for defendant claimed pictures were posted by a third party depicting the plaintiff playing basketball after the accident, while the defendant claimed they were taken from games before he was injured. The defense requested discovery of the plaintiff’s private social media.
The court held that access to private social media information was permitted to obtain photographs and other evidence of physical activity, and provided limitations on the time and subject matter, allowing access to information related to depicting physical activity after the accident.2
Ethical Use of Social Media
Courts have noted that private social media information can be discoverable to the extent it “contradicts or conflicts with [a] plaintiff’s alleged restrictions, disabilities, and losses, and other claims.”3 However, the manner in which the information is obtained has ethical implications.
The New York City Bar Association’s Committee on Professional and Judicial Ethics considered the question of whether and how a lawyer may ethically obtain information on social media for use in litigation. The committee acknowledged that interaction online is more casual and informal, but that the ethics rules impose limits on how attorneys may obtain information shielded by privacy settings.
The committee found that rules bar a lawyer from contacting a represented party, such as sending a “friend” request, but allow the request for an unrepresented party in some cases. The opinion states a lawyer may not attempt to gain access under false pretenses, either directly or through an agent, such as a private investigator or a third-party data mining firm. However, the committee said that 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.4
Ethics Complaints for Use of Social Media
Lawyers often walk a fine line in seeking out social media information for use as evidence in litigation. Crossing that line into dishonest conduct or trickery can result in an ethics complaint and malpractice claim.
In one recent case, two New Jersey lawyers representing a personal injury defendant viewed the plaintiff’s Facebook page which was open to the public, saving comments, pictures and videos. The plaintiff then made the profile private on advice of counsel.
The lawyers asked their paralegal to send the plaintiff a friend request, which he accepted. Using the paralegal’s new access, they continued collecting information intending to impeach his claims of permanent injury. However, counsel for the plaintiff argued improper party content occurred.
After an investigation, the New Jersey ethics office filed a formal complaint against the lawyers, alleging:
- Communicating with a represented party
- Failing to supervise a subordinate lawyer
- Failing to supervise a nonlawyer assistant
- Inducing another to violate the rules of professional conduct
- Conduct involving dishonesty, fraud, deceit and misrepresentation
- Conduct prejudicial to the administration of justice5
Other ethics opinions have reached similar conclusions, finding that lawyers, their employees and third parties operating on their behalf cannot obtain evidence for litigation through deceptive means.
Ethics Guidelines for Social Media
Based on the case law and opinions on these scenarios, lawyers should avoid communication with represented parties on social media. Lawyers should also tread carefully communicating with any unrepresented party.
In the event a lawyer seeks social media evidence, he should be prepared to establish relevancy and authenticity of the information being sought. Lawyers seeking to prevent disclosure of social media should be prepared to not only argue inaccuracy or unreliability of the information but also argue for reasonable limitations on production.
Lawyers may 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, if 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.
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- ABA Model Rule of Professional Conduct 4.2.
- Vasquez-Santos v. Mathew, 2019 N.Y. App. Div. LEXIS 527 (1st Dep’t Jan. 24, 2019).
- Patterson v Turner Const. Co., 88 A.D.3d 617, 618 (N.Y. App. Div. 2011).
- The Association of the Bar of the City of New York Committee on Professional and Judicial Ethics Formal Opinion 2010-02.
- John J. Robertelli v. The New Jersey Office of Attorney Ethics (A-62-14) (075584) (New Jersey Supreme Court 4/19/16).