PL Matters is pleased to provide the second portion of a three-part series exploring the Pennsylvania Bar Association’s new opinion on the ethics of social media management. Here, we consider an attorney’s obligations when communicating through social media and whether and to what extent an attorney may use social media content during litigation. Simply put, it’s a dangerous but navigable road.
First Consideration: Represented or Unrepresented?
Rule 4.2’s prohibition against communication with a represented party without attorney consent also applies to social media contact. But, an attorney may use social media for purposes of “researching” represented parties. In particular, an attorney may access the public portions of a represented person’s social networking site, just as it would be permissible to review any other public statements or generally accessible information. The conduct crosses the line into unethical, however, when a lawyer, or her agent, requests additional access to the portions of the site the party has chosen to keep “private.”
Communicating with an unrepresented party is also governed by the general principle that, if the contact is not allowed using other forms of communication, then it is also not permitted in the social media realm. Rule 4.3 permits an attorney to connect with an unrepresented party through a social networking website only if the attorney clearly identifies her identity and purposes. This rule is particularly important in the social media context. Do not use a pre-textual basis when attempting to contact an unrepresented person, and, if you have reason to suspect this person misunderstands your role, make reasonable efforts to clear up the misunderstanding. Rule 8.4(c), which prohibits deception, also comes into play here.
At bottom, when attempting to contact an unrepresented party or gain access to that party’s social networking sites, be open and honest about who you are, and about your reasons contacting that party. Fake names and fake stories will only lead to trouble.
Second Consideration: What to do with that info?
So you’ve followed the rules and ethically obtained information from a social networking source. You now know that your allegedly wheelchair bound plaintiff just returned from skiing the moguls in Gstaad. What now? Courts have increasingly permitted information from social media sites to be used in litigation. Further, some courts have even compelled the production of information on private areas of social networking sites when the public portions of these sites show that relevant evidence may be found in the private portions. As long as you obtained this information in the ways outlined above, introduction of this information as evidence will likely be permitted.
Third Consideration: Practice Tips
- Represented = Restricted. If a party has counsel, they are off-limits, both in the social media realm and otherwise.
- Stop the shade. If a party does not have counsel, using social media deceptively to contact that party is absolutely not permitted. Honesty is the only policy – be clear about who you are and why you are reaching out.
- “Shared” territory is fair territory. Any information that is publicly accessible on a site is fair game, no matter who the party is or whether they are represented.
- Caution your clients. These same ethical rules apply to your adversaries. With that in mind, make sure your clients are aware that any information that is publicly accessible on their social media site is fair game for the other side to review and use. Further, counsel clients to be wary, and to advise you, if and when new contacts reach out in attempts to connect on social media. Check out last week’s post for further insight on this point.
Stay tuned next week, when our series concludes with a discussion about online endorsements and reviews.