Social Media and Practice: Questions Attorneys Should Ask Now
November 4, 2015
Social media users number in the billions. Facebook counts over 1.4 billion users, LinkedIn has 347 million members, Instagram has 300 million, Twitter has nearly 290 million, and YouTube reports more than a billion users.1 And, like everyone else, attorneys have embraced social media in both their personal and professional lives. In fact, increasingly, an attorney's skill and finesse in navigating these networks can prove essential in professional responsibilities and client relationships.
Given social media's enormous reach, attorneys inevitably must determine what rules apply to social media use—and misuse—in a legal setting. Though the rules governing social media use continue to evolve, the time has come for attorneys to start considering the questions that surround the professional obligations social media creates.
1. What professional obligations to clients does social media actually create?
Today, many attorneys look to social media for investigative purposes and as an informal discovery tool. So far though, when it comes to social media, no specific, stated standards have been created regarding a required attorney aptitude—but that may soon change.
Rule 1.1 of the New York Rules of Professional Conduct ("NYRPC") requires competent representation of a client.2 Earlier this year, the Commercial and Federal Litigation Section of the New York State Bar Association ("NYSBA") updated its highly respected social media ethics guidelines to include a section on attorney competency. The update states that a "lawyer has a duty to understand the benefits and risks and ethical implications associated with social media, including its use as a mode of communication, an advertising tool and a means to research and investigate matters.3 Further, according to the NYSBA guidelines, attorneys "need to be conversant with, at a minimum, the basics of each social media network that a lawyer or his or her client may use."4
Given the undisputed popularity of social media, the NYSBA's analysis provides some guidance to attorneys with respect to using social media in properly serving the needs of their clients. Moreover, ethical rules could further expand more specifically to mandate an attorney's active engagement in social media, since free information through social media remains so available and easily accessible. NYRPC 1.1(c) provides that an attorney shall not intentionally "fail to seek the objectives of the client through reasonably available means permitted by law and these Rules." In fact, instances of attorney admonishment and sanctions for failing to do so already exist.
2. Why consider social media a "reasonably available means"?
Social media provides nearly limitless information, and opportunities abound for gathering knowledge and evidence. In nearly any practice area, social media may reveal juror biases, provide material for impeachment, or assist in identifying a witness. For example, social media may benefit a client in a case concerning a person's physical, mental or emotional state. It may impact a Fair Labor Standards Act matter involving a shared, non-work-related activity. Business marketing may reveal evidence of a breach of a non-compete. Infringing music or videos may be captured and preserved as evidence. Individuals willingly volunteer such information through the common practice by social media users of posting content, comments, and sharing opinions on nearly anything and everything.
3. What other ethical limitations does attorney social media use raise?
When dealing with social media, attorneys must continue to comply with rules of ethics, including the prohibition against attorney deceit, and the "no-contact" rule with respect to represented parties and jurors. Bear in mind that ethical obligations extend to an attorney's agents, investigators and even clients under NYRPC 5.3 and 8.4. Consider whether a person's social media webpage appears in a public or private format, and accordingly, whether any contact with the social media user could be deemed prohibited.
Ethics rules allow for the review and use of evidence from a person's public social media page. The NYSBA considers viewing the public portion of a person's social media page as entirely permissible, just like any other public information.6 Attorneys can and should comb through public social media on a client's behalf. Given the intentionally public nature of such social media profiles or posts, no concerns of breaches of privacy arise. One court even likened posting a tweet to screaming out a window.7
Follow the same guideline in viewing a potential or sitting juror's public social media webpage. The NYSBA, New York City Bar Association ("NYCBA"), and the New York
County Lawyers' Association ("NYCLA") all extend an attorney's investigative reach to public social media pages of potential and sitting jurors, the benefit of which continues even after a juror has been sworn in and throughout trial.8 In doing so, the NYCBA opines that social media has "expanded an attorney's ability to conduct research on potential and sitting jurors, and clients now often expect that attorneys will conduct such research. Indeed, standards of competence and diligence may require doing everything possible to learn about the jurors who will sit in judgment on a case."9
In some instances, even broader investigative latitude may be allowed when viewing and using evidence from private or restricted social media webpages. Both the NYSBA and NYCBA opine that an attorney may contact an unrepresented party to request access to a restricted social media webpage, as long as the attorney uses their full name and an accurate profile. The attorney must also do so in a manner that does not create any false profile to mask their identity, in order to avoid issues regarding NYRPC 4.3 and 8.4.10 In this instance, the active engagement of social media can be an invaluable tool for obtaining information, particularly when an attorney's agent or investigator contacts an unrepresented party. Many social media users accept online connection requests even when they do not know the requesting party. But should the unrepresented party request information of the attorney in response to that kind of request, the NYSBA says that an attorney has the option to either accurately provide the required information or withdraw. The NYCBA, on the other hand, states that further disclosures are unnecessary.
4. What about a represented party or juror?
Attorneys must remain diligent in observing the no-contact rule while navigating the realm of social media, especially when it comes to the more constricted rules regarding access to the private social media page of a represented party or juror. Consistent with NYRPC 4.2, the NYSBA has specifically said that an attorney cannot contact a represented person to request access to their restricted site unless an express authorization to do so has been given.11 An emerging trend exists, however, of courts deciding to permit disclosure of some, if not all, of those kinds of restricted or private social media webpage.12
In order to avoid violating the no-contact rule when working in social media platforms, attorneys should also be careful to not send any unintended communications. Some social media sites, such as LinkedIn, may send automatic notifications to the owner or operator of a webpage when viewed. Contact may be deemed to have occurred with a represented party upon receipt of such notification, or if the subject of investigation becomes alerted to the fact that opposing counsel viewed his/her social media webpage. Attorneys should be especially wary of such automatic notifications in the context of sitting or potential jurors, as such contact may be similarly prohibited under NYCRP 3.5. In fact, the NYCBA and the NYCLA have both expressed the opinion that even such inadvertant contact by automatic messages or notifications may be considered an ethical violation.13
Social media now plays an integral role in an attorney's relationships with clients. Judicial decisions will continue to develop more specific rules and guidelines for the ethical use of social media in a legal context. Staying aware of the evolving obligations and restrictions expected of you while using social media will enable you to best serve your clients.
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