Collecting Evidence and Researching Witnesses Through Social Media
Guideline 3.A allows a lawyer to freely access the public portion of an individual’s social media website or profile, regardless of whether that individual is represented by a lawyer. Guideline 3.B allows a lawyer to request to review the restricted portion of an unrepresented individual’s social media profile as long as the lawyer does not attempt to shield her identity and as long as the lawyer honestly answers any questions that the unrepresented individual might have.
The comment to Guideline 3.B recognizes conflicting guidance in different jurisdictions regarding how much information a lawyer must disclose in requesting to review the restricted portion of an unrepresented individual’s social media profile. Relying on a New York ethics opinion, the comment notes that a lawyer is not required to disclose the reasons for making a friend request, while opinions from New Hampshire, San Diego, and Philadelphia require the lawyer to disclose his role in the litigation.
Guideline 3.D prohibits a lawyer from using a third party to view an individual’s social media profile if the lawyer is not allowed to look at that profile herself, while Guideline 4.D allows a lawyer to review information from the restricted portion of a represented individual’s social media profile that is provided by the lawyer’s client as long as the lawyer does not “inappropriately obtain confidential information about the represented person,” “invite the represented person to take action without the advice of his or her lawyer,” or “otherwise overreach with respect to the represented person.”
Relying on a New York ethics opinion, the comment to Guideline 4.D states that a lawyer can advise a client regarding communications with a represented party where the “client conceives the idea to communicate with [the] represented party” and the “lawyer does not assist the client inappropriately to seek confidential information or invite the nonclient to take action without the advise of counsel or otherwise to overreach the nonclient.” The comment to Guideline 4.D notes that New York interprets “overreaching” as prohibiting a lawyer “from converting a communication initiated or conceived by the client into a vehicle for the lawyer to communicate directly with the nonclient.”
It may be difficult to determine what level of direction from a lawyer constitutes “overreaching.” “A lawyer and client will normally be operating toward the same end goal and their motives will be aligned,” notes Justin Goggins, New York, NY, cochair of the Emerging Issues and Distance Learning/Podcasts Subcommittee of the ABA Section of Litigation’s Pretrial Practice and Discovery Committee. “In this situation, it is unclear what types of communications will be considered at the behest of a client’s attorney,” continues Goggins. “Guideline 4.D suggests that if obtaining such information is the client’s idea, then all bets are off,” says Stephen J. Horace, Denver, CO, cochair of the Emerging Issues and Distance Learning/Podcasts Subcommittee of the Section of Litigation’s Pretrial Practice and Discovery Committee.
Advising Clients to Remove or Add Social Media Content
Guideline 4 also addresses limitations on a lawyer advising a client to remove or add social media content. Guideline 4.A provides that a lawyer may advise a client to remove content as long as it would not violate any decision, statute, rule, or regulation on spoliation of evidence. An individual cannot delete content that is subject to a duty to preserve unless an “appropriate record” of the information is created. Guideline 4.B allows a lawyer to suggest that a client create new social media content, as long as that content is not false or misleading information that is relevant to a claim. Under Guideline 4.C, a lawyer cannot use false statements in litigation if the lawyer learns from a client’s social media profile that the statements are false.
Investigating Prospective and Sitting Jurors Through Social Media
Guideline 5.A allows a lawyer to research a sitting juror’s public social media profile. “A lawyer who does not take advantage of reviewing public information on jurors is remiss in representing his or her clients,” notes Judge James F. Holderman, Chicago, IL, cochair of the Section’s Trial Practice Committee.
Guideline 5.B. warns that a lawyer must be careful that there is no communication with a prospective or sitting juror when the lawyer views that juror’s social media profile, including automatic messages that are sent to an individual when the individual’s profile is viewed. An ethics opinion from New York has concluded that even inadvertent contact caused by an automatic notice may constitute an ethics violation, which could result in a mistrial.
Providing Legal Advice Through Social Media
Guideline 2.A provides guidance on communicating with potential clients through social media, advising a lawyer to be careful about creating an attorney-client relationship where the lawyer is communicating with multiple individuals through a social media network and risks disclosing privileged information. Guideline 2.B prohibits solicitation through instant messaging or chat rooms, but not by email or through a website.
Attorney Advertising Through Social Media
Guideline 1.A states that attorney advertising and solicitation rules apply where a lawyer uses a social media profile primarily for business purposes. The comment to Guideline 1.A notes the difficulty of addressing a hybrid account used for both personal and professional purposes, which may counsel in favor of considering the ethical implications of even personal use of social media. “You have to be careful about putting yourself out there both professionally and personally,” notes Oran F. Whiting, Chicago, IL, cochair of the Section’s Ethics and Professionalism Committee.
In addition, Guideline 1.B mandates that lawyers not hold themselves out as “specialists” on social media websites unless they are certified by an appropriate accrediting body. The comment to Guideline 1.B indicates potential ethical issues associated with listing experience under headings such as “Products & Services” or “Skills and Expertise”—a practice common to many law firms and lawyers.
Erin Louise Palmer is a contributing editor for Litigation News.