Attorneys are not anonymous. We have an ethical obligation to maintain certain professional standards. While social media allows individuals to share content, attorneys have an ethical obligation to act with utmost competence, diligence, and candor when accessing and using social media. Attorneys must also balance ethical obligations of candor with those of competence, which require them to stay abreast of changes in the law and its practice, including relevant technology. Thus, many attorneys may find themselves struggling with what to do and what not to do when it comes to social media. The following tips will help you avoid any potential mishaps when venturing into the social media minefield.
Competence and Diligence
The ABA Model Rules of Professional Conduct (Model Rules) state that a lawyer "shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." Model Rule 1.1. Comment 8 to Model Rule 1.1 specifically references technology: "[T]o maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject" (emphasis added). In addition, Model Rule 1.3 provides that "[a] lawyer shall act with reasonable diligence and promptness in representing a client."
What this means is that attorneys are expected to utilize technology, including social media, in order to provide competent and diligent representation to a client. Model Rules 1.1 and 1.3, however, do not provide an attorney carte blanche to run afoul of the other standards of professional conduct.
Model Rule 4.2 provides that "[i]n representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order." Note that the Model Rule applies even if a represented person initiates contact with the attorney.
Keep in mind that an attorney may not "friend" or "follow" an adverse party. See Model Rules 4.1, 4.2. Several state ethics boards specifically do not allow lawyers to "friend" a party to gain access to private profiles of individuals for information. See, e.g., N.Y. State Bar Ass'n Comm. on Prof'l Ethics, Op. 843 (Sept. 10, 2010) [hereinafter NYSBA Ethics Op. 843]. Moreover, an attorney may not cause a third party to access the social media site of a witness or party to obtain information that may be useful at trial. See, e.g., Phila. Bar Ass'n Prof'l Guidance Comm., Op. 2009-02 (Mar. 2009).
However, if an attorney is relying on "public" pages posted by a party or witness, and not "friending" the party either directly or through another, then the information may be secured by the attorney for purposes of litigation. See NYSBA Ethics Op. 843, supra. Also note that a "friend" request to an unrepresented party where the attorney discloses his or her identity will likely not be found to be a violation of an ethical rule. The New York City Bar has opined on this issue, concluding that
an attorney or her agent may use her real name and profile to send a "friend request" to obtain information from an unrepresented person's social networking website without also disclosing the reasons for making the request. While there are ethical boundaries to such "friending," in our view they are not crossed when an attorney or investigator uses only truthful information to obtain access to a website, subject to compliance with all other ethical requirements.
Ass'n of the Bar of the City of N.Y. Comm. on Prof'l & Judicial Ethics, Formal Op. 2010-2 (Sept. 2010) (emphasis added) (footnote omitted).
As for jurors, the ABA has issued guidance on the issue, advising that, unless precluded by law or a court order, an attorney may "review a juror's or potential juror's Internet presence, which may include postings by the juror or potential juror in advance of and during a trial, but a lawyer may not communicate directly or through another with a juror or potential juror." ABA Comm. on Ethics & Prof'l Responsibility, Formal Op. 466 (Apr. 24, 2014). However, an attorney should not seek to "friend" a juror or potential juror as it may be deemed an ex parte communication. The key, therefore, is that an attorney should not make contact or communicate with a juror or potential juror.
Candor and Fairness
Model Rule 3.3 provides, in part, that "[a] lawyer shall not knowingly . . . make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer." In addition, Model Rule 3.4 addresses fairness to an opposing party and counsel, providing that a lawyer shall not "unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act." Comment 1 to Model Rule 3.4 notes: "The procedure of the adversary system contemplates that the evidence in a case is to be marshaled competitively by the contending parties. Fair competition in the adversary system is secured by prohibitions against destruction or concealment of evidence, improperly influencing witnesses, obstructive tactics in discovery procedure, and the like."
What this means is that attorneys should be mindful to counsel their clients—at the inception of a matter—not to destroy information they have posted on social media. If your client has posted a picture of himself riding a motorcycle and you just happen to be representing him in a personal injury matter where he sustained injuries riding a motorcycle and claims he can never get on a motorcycle again because of the emotional trauma, then you better hope your adversary does not see your client's photos on the public pages of Facebook, because your client is stuck with those photos. Regardless of whether the post or photo can be recovered, the issue is the degree to which you can advise a client that he or she should take active steps to delete social media information, without running afoul of ethical and professional obligations.
All too often, individuals do not lock profiles or take advantage of their privacy settings, leaving their posts, messages, and comments open to the public. This gives an attorney free reign to access information for impeachment purposes. In such situations, it may be appropriate to advise clients that they should change their settings to "private" if such a function is available. Setting a social media site to "private" does not delete the information—any attorney with a subpoena or release may still be able to gain access to the information. In fact, this issue was recently addressed by the Philadelphia Bar Association, opining that, subject to specific limitations, a lawyer may advise a client to change the privacy settings on the client's Facebook page. See Phila. Bar Ass'n, Prof'l Guidance Comm., Op. 2014-5 (July 2014).
Social media presents different ethical challenges for attorneys. The above tips provide a basic framework of the considerations that attorneys should be mindful of when addressing such issues. Keep in mind that attorneys should be proactive about reviewing advisory opinions from their local jurisdictions. For example, the Commercial and Federal Litigation Section of the NYSBA recently enacted "Social Media Ethics Guidelines" to assist lawyers in understanding different ethical challenges presented by social media. Local bar associations can provide many resources to attorneys for guidance on utilizing social media in gathering and reviewing evidence, to communicate with clients and nonparties, to research jurors, and even in attorney advertising. This is an area that is constantly developing as new technologies emerge, and it is incumbent upon attorneys to stay abreast of both the technology and the ethical and professional standards that are propounded to address that technology.
Keywords: litigation, commercial, business, ethics, Facebook, guidelines, Internet, jurors, LinkedIn, litigation, privacy, professional conduct, professional responsibility, social media, Twitter, Model Rule 1.1, Model Rule 1.3, Model Rule 3.3, Model Rule 3.4, Model Rule 4.2