Yesterday, I came across the North Carolina State Bar’s 2018 Formal Ethics Opinion 5. It “reviews a lawyer’s professional responsibilities when seeking access to a person’s profile, pages, and posts on a social network to investigate a client’s legal matter.” As such, it’s blogworthy.
The opinion opens with an important point: technology is ever evolving. Social networks and social media platforms are no different: their features “are constantly changing.” The duty of competence includes keeping abreast of the benefits and risks of relevant technology. This echoes Comment 8 to Vermont’s Rule 1.1 and is the exact point I’ve tried to make when addressing the duty to safeguard client information.
Next, the opinion addresses five questions. My synopsis:
- Yes, it’s okay to look at information that is public. Note, however, that repetitive viewing for no other reason than to cause the person to receive notice that you looked can rise to the level of impermissible harassment. In other words, competence likely includes knowing which platforms notify a person that someone has viewed their profile. I blogged on that very point here.
- No, you may not use deception to access a restricted (or private) portion of a person’s social network presence.
- Yes, it’s okay to request access to restricted (or private) portions of an unrepresented person’s social networks. As long as the request does not include deception or dishonesty, and as long as you correct any misunderstanding that the unrepresented person has of your role.**
- No, you may not send a request for access to restricted (or private) portions of a represented person’s social networks. To do so would violate the rule that prohibits communicating with a represented person on the subject of the representation. Nor may you direct a third person to do the same.
- Yes, you may request and accept information from a third party who has access to the restricted (or private) portions of a person’s social networks. You may not, however, direct or encourage a third person to use deception or misrepresentation to gain access.**
For more, check out the entire opinion.
** Note: the opinion makes quite clear that it does not “obviate” the Comment to Rule 8.4 that authorizes a lawyer to advise “a client or, in the case of a government lawyer, investigatory personnel, of action the client, or such investigatory personnel, is lawfully entitled to take.”
- The Social Media Ethics Guidelines of the Commercial and Federal Litigation Section of the New York State Bar
- DC Bar Ethics Opinion 371 – Social Media II: Use of Social Media in Providing Legal Services
- Massachusetts Bar Association Opinion 2014-5 (friending an unrepresented adversary)
- Pennsylvania Bar Association Formal Opinion 2014-300 – Ethical Obligations For Attorneys Using Social Media
- The Florida Bar Opinion 14-1 (advising a client to change privacy settings)