Feb. 21, 2018 – Can you peek at information on an opposing party’s Facebook page for case-relevant information when a “friend” relationship already exists with your client? What are the ethical issues when information can be gained through social media for an upcoming trial?

Question

A lawyer discovers that the opposing party in the client’s upcoming trial has a Facebook account. Based on the information provided, the lawyer believes that statements and information available from the opposing party’s Facebook account may be relevant to the case and helpful to the client’s position.

Some of the information is available from the opposing party’s social media pages through a simple web search, and further information is available to anyone who has a Facebook account.

Yet more information is available by “friending” the opposing party on Facebook – the information is only accessible after the opposing party has granted a request. The lawyer’s client states that he can view the restricted content because he was “friended” by the opposing party long before the current dispute arose.

May the lawyer view the restricted content on the social media account through the previously granted permission of the client?

Answer

First, the question assumes that most lawyers are now aware that sending a request for permission to access information – such as a “friend” request – on social media is a “communication” as that term is used in SCR 20:4.2.

Therefore, the lawyer may not send such a request to a person the lawyer knows to be represented in a matter in which the lawyer is representing a client.

Also, SCR 20:8.4(a) prohibits a lawyer from violating a rule through the acts of another – so the lawyer may not direct another to engage in conduct lawyers may not do themselves. So, the lawyer would have to make such a request through the represented person’s counsel.

There is surprisingly little guidance, however, about whether the lawyer may view the restricted information through previously granted permission given under circumstances independent of the legal matter.

The New York State Bar’s Guidelines on Social Media state the following:

Guideline No. 5.D. A Lawyer’s Use of Client-Provided Social Media Information

A lawyer may review a represented person’s non-public social media information provided to the lawyer by her client, as long as the lawyer did not cause or assist the client to: (i) inappropriately obtain non-public 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.

NYRPC 4.2.

Comment: One party may always seek to communicate with another party. Where a “client conceives the idea to communicate with a represented party,” a lawyer is not precluded “from advising the client concerning the substance of the communication” and the “lawyer may freely advise the client so long as the lawyer does not assist the client inappropriately to seek confidential information or invite the nonclient to take action without the advice of counsel or otherwise to overreach the nonclient.”New York interprets “overreaching” as prohibiting “the lawyer from converting a communication initiated or conceived by the client into a vehicle for the lawyer to communicate directly with the nonclient.”

New Hampshire Ethics Opinion 2012-13/05 also states:

Finally, this situation should be distinguished from the situation where a person, not acting as an agent or at the behest of the lawyer, has obtained information from the witness’s social media account. In that instance, the lawyer may receive the information and use it in litigation as any other information. The difference in this latter context is that there was no deception by the lawyer. The witness chose to reveal information to someone who was not acting on behalf of the lawyer. The witness took the risk that the third party might repeat the information to others. Of course, lawyers must be scrupulous and honest, and refrain from expressly directing or impliedly sanctioning someone to act improperly on their behalf. Lawyers are barred from violating the rules “through the acts of another.” Rule 8.4(a).

This is unsurprising because SCR 20:4.2 prohibits communication, not observation.¹ Thus, lawyers may observe represented parties’ activities on social media even while they may not communicate with a represented party directly or through the acts of another.

Endnotes

¹ See, e.g., Hill v. Shell Oil Co., 209 F. Supp. 2d 876, 880 (N.D. Ill. 2001).