Podcast Ethicla use of social media – Presentation of September 23, 2014

 

Q&A

 

1) Review and use of evidence from social media.

1.A. Is it ethical to view a represented party’s social media page?

• By lawyer. In NYRPC, Rule 4.2 provides a basic prohibition of communication with a represented party, unless the lawyer has the prior consent of the other lawyer or the lawyer is authorized by law.

Lawyers are not prohibited from viewing a party’s public information contained in  social media. If the social media site does not inform the profile’s owner of who is viewing, no ethical issues arise.

However, there might be an ethical issue when the site notifies the person whose profile is viewed, as this might be considered lawyers’ communication. There are two different interpretations of this matter:

According to ABA Opinion 466 it is not considered as attorney communication when the social media site notifies the person whose profile is viewed.

New York approach is slightly different. If the represented person receives an automated notification of the lawyer’s review, the lawyer has probably committed an ethical violation by “communicating” with that party. See my blog on the Guidelines on Ethical Use of Social Media Issued by New York State Bar Association. In particular, see Guideline no. 3: “A lawyer may view the public portion of a person’s social media profile or public posts even if such person is represented by another lawyer. However, the lawyer must be aware that certain social media networks may send an automatic message to the person whose account is being viewed which identifies the person viewing the account as well as other information about such person.”

Practically speaking, Facebook seems to be safe, as it will not notify the person of the viewing. While LinkedIn might be different, as it will notify the profile’s owner.  However, privacy setting on LinkedIn can and should be changed to make such viewing anonymous.

• By an agent of the lawyer. The person supervised by the lawyer must abide to the same principles applying to the lawyer. See Guideline 3D. “As it relates to viewing a person’s social media account, a lawyer shall not order or direct an agent to engage in specific conduct, or with knowledge of the specific conduct by such person, ratify it, where such conduct if engaged by the lawyer would violate any ethics rules.”

• By the client. In NYRPC Rule 4.2(b) states that a lawyer may cause a client to communicate with a represented person and counsel the client to such communication provided the lawyer gives reasonable advanced notice to the opposing counsel. This is different from the situation in which it is the client who has the idea of contacting the other party, in which case no advanced notice is required. Accordingly, the client is free to investigate social media on her own. Also, the lawyer will not be responsible for the client’s misrepresentation unless the lawyer did counsel the client to examine the other parties’ social media and the lawyer did not give notice of it.

1.B.    Is it ethical to view an unrepresented party’s social media?

A lawyer may view unrepresented parties’ social media pages but may not  mislead them or provide legal advice.

According to NYRPC Rule 4.3, in communicating with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested.

Furthermore, Guideline 3B provides that “A lawyer may request permission to view restricted portion of an unrepresented person’s social media …However, the lawyer must use her full name and accurate profile and she may not create a false profile”.

1.C.    Is it ethical to view jurors’ social media?

A lawyer may view the social media sites of jurors provided there is no communication, whether direct or automatic with the juror and provided the lawyer does not engage in deceit.

See NYRPC 3.5(a)(4) a lawyer shall not “communicate or cause another to communicate with a member of the Jury.”

According to ABA Opinion 466, it is not unethical to view a juror’s webpage publicly available when the juror is unaware of lawyer’s review. However, it is certainly prohibited to requests access to the juror’s social media site.

On this issue, see article Nathan Crystal, Using Social Media to Investigate Jurors, South Carolina Lawyer, 12 (July 2014), whose abstract is here.

 

2. Advising client to change social media content.

2.A.          Is it ethical to advise clients to change social media content?

A lawyer may counsel a client to remove, or change content on a social media page, as long as the changes are not false or deceptive and the advice does not violate statutory or common law. However, as soon as litigation is reasonably foreseeable, a litigation hold has to be put in place.  Probably a lawyer may advise a client to change privacy settings and remove material from the site, so long as copies of the material are preserved.  However, it may be risky for the lawyer to trust the client to preserve materials.

2.B.          When can a formal discovery request for social media content be filed?

According to NY decisions there must be a factual predicate for being able to gain access to the parties’ nonpublic content. In order to obtain access there has to be information showing that the site probably contains evidence relevant to the case.

 

3. Advertising on social media

3.A.         Can a lawyer list his or her expertise on social media?

New York State Bar Opinion 972 held that under New York Rules a law firm could not list its services under the heading “Specialities” and an individual lawyer could not do so unless the lawyer was certified as a specialist in New York. (The Committee did not “address whether the lawyer or law firm could, consistent with Rule 7.4(a), list practice areas under other headings such as ‘Products & Services’ or ‘Skills and Expertise.”)

3.B.         What about LinkedIn endorsements?

NYRPC  7.1 allows testimonials or endorsements with some restrictions.  Paid endorsements must be disclosed.  Endorsements that describe prior results must include a disclaimer “Prior results do not guarantee a similar outcome,” which can be included in the lawyer’s profile.  Any endorsement must not amount to “a false or misleading communication about the lawyer or the lawyer’s services”.  Lawyers should not accept endorsements in areas in which they do not practice.

More thoughts about this matter available here.

 

 

Keep abreast of technology as new ethical aspects may arise!