Yesterday, I blogged on tech competence and the duty to act competently to safeguard client data. Today, I’d like to spend a few minutes on tech competence insofar as it relates to the legal ethics of social media, friends, and followers.
Here are three advisory ethics opinions on social media:
- D.C. Bar Ethics Opinion 371 (November 2016)
- Massachusetts Bar Association Opinion 2014-5 (May 2014)
- New Hampshire Bar Association Ethics Advisory Opinion 2012-13/05 (June 2013)
There are many more advisory opinions & court decisions on the topic. Today, I’m focusing on these three.
A few takeaways:
The opinions from D.C. and NH make it clear that a lawyer’s duty of competence includes a duty to be aware of the benefits and risks of social media. Referring to Rule 1.1 and the duty of competence, the D.C. Opinion notes that: “[b]ecause of society’s embrace of technology, a lawyer’s ignorance or disregard of it, including social media, presents a risk of ethical misconduct.”
In addition, Rule 1.3 imposes a duty to provide a client with diligent representation. Here again, the D.C. and NH opinions indicate that a lawyer’s duties to provide competent and diligent representation include a duty to understand that an adversary or witness may have made information publicly available on a social media platform. Or, as the NH Bar stated in referring to Rules 1.1 and 1.3, “[i]n light of these obligations, counsel has a general duty to be aware of social media as a source of potentially useful information in litigation, to be competent to obtain that information directly or through an agent, and to know how to make effective use of that information in litigation.”
But what about information that is not publicly available? Can a lawyer send a “friend” request to an adversary or witness? Can a lawyer “follow” or “connect” with an adversary or witness? The opinions advise to proceed with caution.
A “friend” request is a communication. So, if the adversary or witness is represented, a “friend” request sent directly to the person might violate Rule 4.2, aka “the no-contact rule.”
Further, don’t forget your duties of honesty, candor, and fair dealing. Are you really the adversary’s or witness’s “friend?” The Massachusetts and New Hampshire opinions conclude that a Facebook “friend request,” a request to follow a private Twitter account, and a request to “connect” on LinkedIn must include a communication that identifies the lawyer and the lawyer’s role in the matter about which the lawyer is seeking information. The failure to do so constitutes misrepresentation by omission. As the MassBar’s Opinion states:
- “We do not agree with the conclusion of the Oregon Ethics Committee in its Opinion No. 2013-189 that the burden should be on the unrepresented party to ask about the inquirer’s purpose rather than on the lawyer to disclose her identity and/or purpose. We believe that it is permissible to ‘friend’ [an opposing party] in this situation in order to access nonpublic information only when the lawyer has been able to send a message that discloses her identity as [an adversary’s] lawyer. Facebook, LinkedIn and other social media sites allow the invitation to include a message. We also do not agree with the suggestion in Formal Opinion 2010-2 of the New York City Bar Association’s Committee that the lawyer’s identification message may be contained in a ‘profile’ created on the lawyer’s personal social media page. It is well known that ‘friending’ requests are often granted quite casually, and viewing the invitee’s profile is not necessarily a mandatory step in accepting a ‘friend’ request. The lawyer’s message must accompany the ‘friending’ request in order to avoid the very real possibility that the recipient will be deceived. Although this communication medium is obviously different, the bottom line resembles a telephone call in which the lawyer does not adequately identify herself.”
Today, I wanted to be succinct, even more succinct than this post turned out. So, I’m going to stop here. I’ll leave you with this: I view the rules as requiring a lawyer to know (1) that an adversary or opposing witness likely has posted to a social media platform information that could be helpful to the lawyer’s client; and, (2) that a client likely has posted to a social media platform information that could be helpful to an advesary.
For more, I suggest that you read each of the 3 advisory opinions. Each goes into more detail, and each includes discussion of issues that I did not present in this post.