Social Media: Questions of Admissibility and Ethics

Unrepresented Parties

Sending a “friend” request to an unrepresented person without making attempts to mislead that person about the requestor's identity or motive is ethically in-bounds. See, e.g., New York State Bar Ass'n, Formal Op. 843 (Sept. 10, 2010). More “creative” deceptive tactics, however, likely constitute violations of ethical rules or other laws.

Misrepresenting one's identity to another for the purpose of obtaining information, for example, by using a false identity to send a “friend” request to an adverse witness on Facebook to obtain impeachment evidence likely violates American Bar Association Model Rules 4.1 and 8.4(c). Those rules prohibit lawyers and the employees and agents of the law firm on the attorney's behalf from making false statements of material fact to a third person and from engaging in conduct that involves dishonesty, fraud, deceit, or misrepresentation.

Even if the identity used is not false, however, an attorney may need to disclose the reason for making the request, depending on the jurisdiction. Compare, for example, the ethics opinions from the New York City and Philadelphia Bars. The Bar of the City of New York Committee on Professional and Judicial Ethics Formal Opinion 2010-2, addressing whether an attorney's “direct or indirect” use of affirmatively deceptive behavior to “friend” potential witnesses is proper, concluded that although New York Rule of Professional Conduct 4.1 prohibits lawyers from making false statements, and Rule 8.4(c) prohibits lawyers and firms from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, ethical boundaries are not crossed when an attorney uses truthful information to obtain access, subject to all other ethical requirements. Thus, an attorney may use her real name and profile to gain access to an unrepresented person's social networking website “without also disclosing the reasons for making the request.”.

The Philadelphia Bar Association Professional Guidance Committee Opinion 2009-02, on the other hand, concluded that a third party “friending” an unrepresented party, truthfully stating his or her name but not disclosing the intent behind the “friend” request, would violate the Pennsylvania Rules of Professional Conduct 5.3, 8.4 and 4.1, as the planned communication by the third party with the witness was deceptive, omitting a highly material fact — namely, that the purpose of the “friend request” was to obtain information to share with a lawyer for use in a lawsuit. See also San Diego County Bar Association Legal Ethics Opinion 2011-2 (May 24, 2011) (concluding that an attorney may not make friend requests to unrepresented witnesses without disclosing the purpose of the request); Pennsylvania Bar Association Formal Op. 2014-300 (“Ethical Obligations for Attorneys Using Social Media”) (Sept. 2014) (Attorneys may not use a pre-textual basis for viewing otherwise private information on social networking websites.).

Represented Parties

The rules are clearer when dealing with a represented party. If a social media user is represented by counsel, opposing counsel must obtain consent from that counsel to view the social media posts and/or comments. See, e.g., Colorado Bar Association Ethics Committee Opinion 127. See also Assn. of the Bar of the City of New York Committee on Professional and Judicial Ethics, Formal Opinion 2010-2 (noting that communications of a lawyer and her agents with parties known to be represented by counsel are still governed by Rule 4.2, which prohibits such communications unless the prior consent of the party's lawyer is obtained or the conduct is authorized by law); San Diego County Bar Association Legal Ethics Opinion 2011-2 (May 24, 2011) (concluding that while a lawyer may ethically view or access profiles which are publicly available to everyone, different rules may apply when an individual has a profile visible only to his or her “friends.” Thus, an attorney may not make ex-parte friend requests to a represented party.); Pennsylvania Bar Ass'n Formal Op. 2014-300 (“Ethical Obligations for Attorneys Using Social Media”) (Sept. 2014) (attorneys may not contact a represented person through social networking websites).

Nor can an attorney obtain access to a witness or information through a client that the attorney otherwise would not have. See, e.g., New York State Bar Association Social Media Ethics Guidelines (2014) (stating that “[a] lawyer may review the contents of the restricted portion of the social media profile of a represented person that was provided to the lawyer by her client, as long as the lawyer did not cause or assist the client to: (i) inappropriately obtain confidential information from the represented person; (ii) invite the represented person to take action without the advice of his or her lawyer; or (iii) otherwise overreach with respect to the represented person.”); and New Hampshire Bar Association's Ethics Advisory Committee Opinion 2012-13.05 (2012) (opining that “a lawyer's client may, for instance, send a 'friend' request or request to follow a restricted Twitter feed of a person, and then provide the information to the lawyer, but the ethical propriety 'depends on the extent to which the lawyer directs the client who is sending the [social media] request,' and whether the lawyer has complied with all other ethical obligations.”).

Judges

Finally, at least one bar association has indicated that attorneys may ethically connect with judges on social networking websites, provided the purpose is not to influence the judge. See Pennsylvania Bar Ass'n Formal Op. 2014-300.

Conclusion

As we move further and further into this digital age — where almost all of our communication with others is in writing, through either social media, text messages, or emails — it is painstakingly clear that the inappropriate use of social media and networking sites can create a dangerous evidentiary tool in family law matters. For an attorney, knowing the potential evidentiary hurdles is half the battle, and attorneys must speak with clients early on in their representation to warn them about the potential use of their social media as evidence in their divorce, domestic violence or child custody matter.

Attorneys must learn to use social media as a source of information in their cases. Social media can be both a benefit and a detriment in case presentation. Without a doubt, it is a reality.

Regarding the gathering of evidence, although the majority of ethics opinions appear to agree that public social media postings are fair game, most also warn that using deceptive tactics to gain information contained on privacy-protected accounts can run afoul of an attorney's ethical obligations. It is important to research the jurisdiction in which you are litigating a matter for guidance on the ethical parameters of using social media forums as part of the investigation of a case.

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Lynne Strober, a member of this newsletter's Board of Editors, is a Member of Mandelbaum Salsburg, P.C. and Chair of its Family Law Department. She is the immediate past President of The Barry Croland Family Law American Inn of Court. Khizar A. Sheikh is a Member of the firm, and Chair of its Privacy, Cybersecurity, and Data Law Group. Jennifer Presti is an associate with the firm.