It’s ethically permissible for a lawyer to access information that is publicly available on someone’s social media site, whether the person is represented by counsel or not.
But if you visit too often – or poke around too aggressively – you might find yourself in violation of Rule 4.4, which requires respectful conduct towards third persons.
Those are two takeaways from a new ethics opinion from the State Bar that provides the most comprehensive guidance to date on how NC lawyers can use social media for research or investigation of opposing parties and witnesses.
2018 FEO 5 addresses ethical issues that arise when a lawyer, either directly or indirectly, seeks access to social network profiles, pages, and posts belonging to another person.
“The public portion of a person’s social network presence refers to any information or posting that is viewable by anyone using the internet or anyone who is a member of the social network,” says 2018 FEO 5. “Such information is no different than other information that is publicly available. Nothing in the Rules of Professional Conduct prohibits a lawyer from accessing publicly available information.”
Using Social Networks for Investigation
In the opinion, the State Bar recognizes that lawyers are increasingly using Facebook, Twitter, Instagram, LinkedIn and other social networks to prepare and investigate cases. But it cautions that doing so has ethical implications.
“Several rules restrict a lawyer’s communications with people involved in a client’s matter. Rule 4.2 restricts a lawyer’s communications with persons represented by counsel. Rule 4.3 restricts a lawyer’s communications with unrepresented persons. Furthermore, all communications by a lawyer are subject to Rule 4.1’s prohibition on knowingly making a false statement of material fact or law to a third person and to Rule 8.4(c)’s prohibition on conduct involving dishonesty, fraud, deceit, or misrepresentation that reflects adversely on the lawyer’s fitness as a lawyer.”
Inquiry #1: Viewing Public Information
Question: Regardless of the privacy setting established by a user, if the social network site allows public access to certain limited user information, may a lawyer representing a client in a matter view that public portion of a person’s social network presence?
“Lawyers may view the public portion of a person’s social network presence. However, the lawyer may not engage in repetitive viewing of a person’s social network presence if doing so would violate Rule 4.4(a).”
“Some social networks automatically notify a person when his or her presence has been viewed. The person whose presence is viewed may receive information about the individual who viewed the presence. Under these circumstances, when a lawyer views a person’s public social network presence, it is the social network sending a communication, not the lawyer. Therefore, the notification generated by the social network is not a prohibited communication by the lawyer…. However, a lawyer who engages in repetitive viewing of a person’s social network presence so as to generate multiple notifications from the network may be in violation of Rule 4.4(a). That rule prohibits a lawyer from using means that have no substantial purpose other than to embarrass, delay, or burden a third person, and from using methods of obtaining evidence that violate the legal rights of such a person.”
Inquiry #2: Accessing Restricted Areas
Question: May a lawyer use deception to access a restricted portion of a person’s social network presence?
“Lawyers must never use deception, dishonesty, or pretext to gain access to a person’s restricted social network presence. Rules 4.1 and 8.4(c). When seeking access to a person’s restricted social network presence, a lawyer must not state or imply that he is someone other than who he is or that he is disinterested. Furthermore, lawyers may not instruct a third party to use deception.”
Inquiry #3: Requesting Access to Restricted Areas of Unrepresented Person
Question: May a lawyer, using his true identity, request access to the restricted portions of an unrepresented person’s social network presence?
“A lawyer’s duty of competent and diligent representation under Rules 1.1 and 1.3 encompasses the use of readily available forms of informal discovery. A lawyer who seeks informal discovery may request the same access to an unrepresented person’s social network presence that is available to any nonlawyer, as long as the lawyer uses his true identity and does not engage in deception or dishonesty. The person contacted is free to accept, reject, or ignore the request, or to ask for additional information. If the unrepresented person asks the lawyer for additional information, the lawyer must accurately provide the information or withdraw the request.
Rule 4.3(b) provides that a lawyer, in dealing on behalf of a client with a person who is not represented by counsel, shall not ‘state or imply that the lawyer is disinterested.’ In addition, when the lawyer ‘knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.’ By simply requesting access, the lawyer does not violate Rule 4.3. A lawyer who requests access is not making any statement, nor is he implying disinterest.”
Inquiry #4: Requesting Access to Restricted Areas of Represented Person
Question: May a lawyer, using his true identity, request access to the restricted portions of a represented person’s social network presence?
“During the representation of 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 by court order. Rule 4.2(a)….”
“Unless the lawyer has obtained express consent from the represented person’s lawyer, the request interferes with the attorney-client relationship and could lead to the uncounseled disclosure of information relating to the representation. Therefore, requesting access to the restricted portions of a represented person’s social network presence is prohibited unless the lawyer obtains consent from the person’s lawyer. Furthermore, the lawyer may not direct a third party to request access to restricted portions of a represented person’s social network presence.”
Inquiry #5: Accepting Social Network Info From a Third Party
Question: May a lawyer request or accept information from a third party with access to restricted portions of a person’s social network presence?
“Nothing in the Rules of Professional Conduct prevents a lawyer from engaging in lawful and ethical informal discovery such as communicating with third party witnesses to collect information and evidence to benefit a client. Witnesses who have obtained information from the restricted portions of a person’s (represented or unrepresented) social network presence are no different in this regard than any other witness with information relevant to a client’s matter. Therefore, when a lawyer is informed that a third party has access to restricted portions of a person’s social network presence and can provide helpful information to the lawyer’s client, the lawyer is not prohibited from requesting such information from the third party or accepting information volunteered by the third party.”
“Similarly, a lawyer may accept information from a client who has access to the opposing party’s or a witness’s restricted social network presence. However, the lawyer may not direct or encourage a third party or a client to use deception or misrepresentation when communicating with a person on a social network site.”