Until very recently, many lawyers considered social media a fad that would soon become yesterday's news. But if the American Bar Association's 2013 Legal Technology Report is any indication, lawyers are finally beginning to take social media seriously.
The report, based on a survey of more than 850 lawyers, suggests that the past two years have seen a tremendous increase in lawyer participation on social media sites, both for professional promotion and as a litigation tool. However, if a lawyer is going to use social media as a litigation tool, it is
important that he or she have a thorough understanding of the ethical obligations that come with mining social media for evidence, or for researching jurors. Over the past several years a number of jurisdictions have drawn conclusions on what is ethical and appropriate in these areas.
Mining for Evidence
A number of jurisdictions have considered the issue of how and under what circumstances lawyers can ethically mine social media sites for evidence to support litigation. Two key themes that have emerged from the opinions are that the permissibility of the conduct depends on whether the social media postings sought are publicly viewable, and whether the person being researched is represented by counsel.
For example, in 2011 the San Diego County Bar Association Legal Ethics Committee (thus far the only California ethics committee to address this subject), discussed the ethics of mining social media. At issue was whether it is permissible for an attorney to send a "friend request" to a represented party. The committee concluded that it was impermissible under any circumstances. However, the committee also noted that "friending" an unrepresented witness would be ethical as long as the attorney disclosed the reason for the communication.
In reaching its decision, the San Diego ethics committee emphasized the importance of avoiding deception when seeking to obtain evidence using social media sites. (See San Diego Cnty. Bar Ass'n, Legal Ethics Op. 2011-2 (2011).)
Most jurisdictions agree that it is improper to attempt to connect with an individual known to be represented by counsel, but looking at publicly viewable profiles is acceptable. Another example comes from New York, where an ethics committee concluded that an attorney or agent can view a party's public profile. (See N.Y. State Bar Ass'n, Comm. on Legal Ethics, Op. 843 (2010).)
Regarding unrepresented individuals, the majority of jurisdictions take the same position as the San Diego ethics committee, holding that lawyers must disclose the reason for seeking to connect with an unrepresented party. For example, the Massachusetts Bar Association opined that "a lawyer for a party may 'friend' an unrepresented adversary in order to obtain information helpful to her representation from the adversary's nonpublic website only when the lawyer has been able to send a message that discloses his or her identity as the party's lawyer." (See Mass. Bar Ass'n, Comm. on Prof'l Ethics, Op. No. 2014-T05 (2014).)
In addition, the Oregon State Bar concluded that a lawyer may not friend known represented parties absent express permission from their attorneys, but it also found that an attorney may access an unrepresented individual's publicly available social media profile, and may likewise friend an unrepresented party. However, if the lawyer has "reason to believe that the person misunderstands her role," the lawyer must "provide the additional information or withdraw the request." (See Oregon State Bar, Ethics Comm. Op. 2013-189 (2013).)
Likewise, the Philadelphia Bar Association determined that an attorney or agent cannot friend an unrepresented party absent disclosure that the request relates to a pending lawsuit. (See Philadelphia Bar Ass'n, Ethics Op. 2009-02 (2009).)
However, the New York City Bar Association reached a different conclusion. It found that an attorney or agent can ethically friend an unrepresented party without disclosing the true purpose, but cautioned that it is always better to avoid "trickery" and to instead be truthful or, alternatively, use formal discovery to obtain social media-related information. (See N.Y. City Bar Ass'n, Comm. on Prof'l Ethics, Formal Op. 2010-2 (2010).)
Lawyers also often try to use social media to obtain information about jurors during the trial phase of litigation. As is the case when mining social media for evidence, attorneys must comply with ethics obligations when conducting this type of research.
A few jurisdictions have considered this issue (although none in California yet), and they have concluded that lawyers may view jurors' publicly available social media information. But there is not a consensus regarding whether juror awareness of the online monitoring presents a problem.
Most recently, in April 2014, the American Bar Association's (ABA) Standing Committee on Ethics and Responsibility considered, in Opinion 466, the question of researching jurors. The committee concluded that it was unethical for lawyers to communicate with jurors, and any attempts to access jurors' social media information located behind privacy walls were impermissible. However, publicly available information was fair game, as viewing it did not constitute improper communication in violation of ABA Model Rule 3.5(b). The committee likened viewing public webpages to observing a juror from a car while driving by the juror's home.
The committee also addressed an attorney's ethics obligations if improper juror conduct is discovered, explaining that "the lawyer must take reasonable remedial measures including, if necessary, disclosure to the tribunal."
Notably, however, the ABA committee departed from a 2011 opinion by the New York County Lawyers' Association regarding passive online notifications, such as those sent to LinkedIn members telling them that someone has viewed their profile. The ABA committee concluded that such passive notifications do not constitute a communication and thus are not problematic. It wrote: "The fact that a juror or a potential juror may become aware that the lawyer is reviewing his Internet presence when an ESM network setting notifies the juror of such review does not constitute a communication from the lawyer in violation of Rule 3.5(b)." (See ABA Standing Comm. on Ethics & Prof'l Responsibility, Formal Op. 466 (2014).)
At first, the thought of mining social media may seem overwhelming. After all, for many lawyers social media is still unfamiliar terrain and presents a host of ethics issues. But even so, the benefits of using social media during litigation can far outweigh the drawbacks. The information obtained could be the difference between a good case and a great case.
Lawyers should not let trepidation hold them back. Taking time to learn about the different platforms, as well as a working knowledge of the applicable rules of professional conduct, will ensure a thorough understanding of the ethics issues involved. Such preparation will allow a thoughtful, creative, and careful attorney to use social media as an important tool in providing the best representation possible.
San Diego-based attorney Matt Spiegel is the founder and vice president of Web-based law practice management software company MyCase. New York-based attorney Nicole Black is the director of business development at MyCase and the author of
Social Media for Lawyers (ABA 2010).