Social media is increasingly important in eDiscovery, employment investigations and jury research. Using social media in legal and HR matters raises significant ethical issues. Lawyers and other legal professionals should keep these five ethics rules in mind.
1. Familiarity with relevant social media is part of legal competence.
Competence is ethics rule number one – literally. ABA Model Rules of Professional Conduct Rule 1.1 reads:
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
All lawyers should be familiar with potential sources of relevant information in their area of practice. The areas of the law where social media evidence is most likely to be relevant are (in no particular order):
- Employment
- Personal injury
- Intellectual property
- Product liability
- Defamation
- Family law
In addition, technology competence for litigators requires a basic familiarity of the main types of electronically stored information. That includes social media content like messaging, posts and pictures.
2. Whatever the medium, the statement must be truthful.
Honesty is another fundamental rule. Rule 7.1 prohibits false and misleading statements about the lawyer or the lawyer’s professional services. We must be accurate, truthful and aboveboard when mining social media for information just as at all other times.
Lawyers should not make anonymous or pseudonymous social media posts when acting in a professional capacity. Partial truths also break the rule. For example, it’s misleading to leave a comment or send a connection request without disclosing the lawyer’s interest in the matter.
3. Don’t “friend” the opposing party on Facebook, and other rules about represented persons.
Rule 4.2 prohibits direct communication about a legal matter with interested persons who have their own lawyers. That includes witnesses and other third parties who are represented by counsel in addition to the opposing party.
Connection requests, private messages, follows, comments, likes and shares all qualify as communications under this rule. As a practical matter, most ethics opinions based on the represented parties rule stem from improper connection requests. The proper means of obtaining non-public social media content is through discovery, not by “friending” the opposing party. Using a company account or fake profile to send a connection request additionally runs afoul of Rule 7.1.
4. Know your state’s rules on jury research.
Lawyers also have ethical obligations towards people who aren’t represented by counsel, like potential and serving jurors.
Rule 4.3 reads, “In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested.” Unsurprisingly, judges and ethics boards alike frown on lawyers and parties interacting with jurors on social media. Friending to gain access to non-public content is definitely not allowed.
Some states are more restrictive than others on pre-trial research into potential jurors’ public social media content. My home state of Indiana permits juror research as long as the content is publicly available. By contrast, New York prohibits activity that will or might alert potential jurors that someone is looking at their information. Knowing how the different social media platforms operate is essential to comply with specific prohibitions; for example, that viewing a profile on LinkedIn can generate an auto-alert to the account owner.
5. Ethics starts at the top – but doesn’t end there.
Finally, lawyers must appropriately supervise staff and consultants. Rule 5.3 provides detailed guidance for supervision of non-lawyers employed or retained by a lawyer or law firm. The gist is that the entire legal team needs to follow the ethics rules for social media activity and communications.
On a general note, while state rules tend to follow the Model Rules cited in this post pretty closely, there are some variations in language and interpretation. Be sure and consult your own state’s rules of professional conduct and ethics opinions for further guidance.
Social media is characterized by communication and personal information. The attributes that make it a trove of useful information also create ethical pitfalls. Legal professionals should always approach social media with an ethics mindset.
