Social Media – Ethics Versus Zealous Advocacy

Attorneys set out to zealously advocate for our clients, but some uses of social media in the name of advocacy cross an ethical line.  Knowing where that line is drawn is crucial to keeping out of ethical trouble.

Last week’s post discussed attorneys posting on social media, and why we should not be Facebook friends with our clients.  Looking at lawyers as consumers of social media, there are also guidelines to follow to avoid trouble.  Here are some of the key players in litigation who may be on social media sites, and what precautions attorneys ought to be taking when engaging with them online:

  • Opposing Parties:  Opposing litigants are typically deposed, and when preparing to take someone’s deposition, attorneys spend hours learning all they can about the opposing party.  We learn where they live, how old their children are, where they went to school, and minute details of the case at hand.  It is a perfectly logical extension of our research into the other side to see what sort of things they post on their social media outlets.
  • Employees of Opposing Parties:  Often a party to litigation is a company with many employees, some of whom will be witnesses and some of whom will be more like the real parties (think CEOs and the like).  These individuals may also be on social outlets, and whether they are key players in the litigation or minor witnesses, their details are likely to be important to the other side’s lawyers.
  • Non-Party Witnesses:  Like opposing parties, we try to get to know everything we can about a witnesses before they testify, whether the witness is for the opposing side or our own.

With researching someone’s social media posts being such a logical step to take, the state bars of many states have issued attorneys guidance on how to proceed – but not all states agree on what is appropriate.  Here are some of the key rulings from around the country:

When Viewing a Social Media Site Requires Obtaining Access to a Private Page

  • Association of the Bar of the City of New York Committee on Professional Ethics Formal Opinion 2010-002 A lawyer may not resort to “trickery” to obtain access to a person’s social media sites.  “Trickery” would include creating a fake Facebook profile, either under a name that the targeted person would recognize and allow to be their friend, or under a false name with interests or background details (such as schools attended) listed which would entice the targeted person to accept a friend request.  On the other hand, permissible use of social media would be to send a direct friend request to an unrepresented person under the attorney (or agent)’s real name without disclosing the purpose of the request.  (The person must be unrepresented so as not to run afoul of rules prohibiting direct contact with represented persons, an issue completely separate from social media yet implicated when direct friend requests are sent.)The ABCNY specifically admonishes attorneys in its opinion that New York’s narrow exception allowing for some deceit to be employed in discovery when absolutely necessary to obtain key information is not likely to be applicable to social media.  Social media postings are obtainable through traditional discovery means, such as subpoenas and document requests so deceit should not be needed.
  • Philadelphia Bar Association Professional Guidance Committee Opinion 2009-02:  Philadelphia took a different approach than New York.  There the rule is that in sending a friend request, failing to disclose that the real reason behind the request is to gain information useful in litigation is deceitful in violation of Pennsylvania’s ethical rules prohibiting “conduct involving dishonesty, fraud, deceit or misrepresentation deceitful”.  The result is unchanged if the lawyer employs a third party to make the friend request, and it is similarly unchanged if the request is made in the lawyer or agent’s real name.
  • San Diego County Bar Legal Ethics Committee Opinion 2011-2:  San Diego’s committee addressed friend requests sent by a lawyer, in his own name, to individuals within an organization which is a represented opposing party.  There the committee held that an attorney is not permitted to friend an employee of a represented party any more than he would be permitted to walk up to that person in the hallway and ask them to tell the attorney more about themselves.
  • Colorado (People v. Pautler, 47 P. 3d 1175 (Colo. 2002)) and Oregon (In Re Gatti, 8 P3d 966 (Ore 2000)) courts issued opinions which pre-date the widespread use of Facebook, MySpace and Twitter, in which they clearly stated that under no circumstances will deceit be tolerated.  These opinions indicate that these jurisdictions would agree with Philadelphia’s take on the rules.
  • Oregon State Bar Association Opinion No. 2005-164:  Oregon addressed both viewing a public website (discussed below) and communicating via internet communications.  As to communicating, it said that online communication is no different than traditional written modes of communication, so the same rules apply to online correspondence as do to written letters.  It did not address social media, which was not as widespread in 2005 as it is today, but the opinion would seem to imply that friend requests, even honest ones, would be prohibited contact with a represented party.

When the Social Media Site is Open for Public Viewing

  • New York State Bar Association Committee on Professional Ethics Opinion 843 (September 10, 2010):  New York took up the question of whether a publicly-available social media page is fair game even if the party posting it is a represented party, so contact between the lawyer and party would be prohibited under other rules.  It said that accessing such a publicly-available site would entirely permissible under the rules and that information obtained from the site would be permitted as impeachable evidence.  The committee specifically stated that this result is unchanged even if the lawyer or agent needs to be a member of the social media outlet (such as a Facebook user) in order to gain access to the targeted person’s page, so long as the attorney or agent does not use deception to open the Facebook account.
  • Oregon State Bar Association Opinion No. 2005-164:  In addressing viewing of public websites, not in the context of social media, Oregon stated that a website is just like a magazine article or book about a person, and in the public domain they are permitted sources of information.  It would seem from this opinion that viewing of a publicly-available social media site would fall within the same permitted category.

What these opinions do not address is how far an attorney should go to zealously represent his client.  If a social media site is available for public viewing and thus permitted to be viewed, it could certainly be argued that an attorney is obligated for the sake of representing his client to actually view the site and use any relevant information on his client’s behalf.

Social media continues to grow and all of the players in litigation are potential social media users.  To effectively advocate, attorneys must know how to utilize the available information on social media sites, but they must also know where the ethical lines have been drawn in their state so that advocacy does not turn into ethical trouble.

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