Opinion #217. Ethical Obligations for Access and Use of Social Media

Issued by the Professional Ethics Commission

Date Issued: September 6, 2017

As of January 12, 2017, sixty-nine percent of Americans use at least one social media platform, as compared to just five percent of Americans in 2005.i Social media, such as Facebook, Twitter, and LinkedIn, contain millions of people’s profiles, messages, photographs and videos that could prove crucial to a legal dispute.ii It is now commonplace for attorneys who are exercising due diligence in the representation of clients to search for and obtain information through social media.

Because social media contain a hybrid of public and private information, and are accessed through different methods, the access to and use of social media raise ethical issues that do not neatly conform to the existing rules. This has led to some uncertainty on the part of attorneys. This Opinion addresses three common ethics questions relating to the access and use by lawyers of social media.

Definition of “Social Media”

As a threshold matter, it is important to acknowledge that there is no good definition of “social media.” The functionality, technology and content available on the platforms that make up “social media” likely will continue to evolve dramatically in the future. For the purpose of this Opinion, the Commission defines “social media” to include those Internet website platforms, such as Facebook, Twitter, Instagram and LinkedIn, that are used primarily for connecting socially with multiple “friends” and for sharing a wide range of personal, professional and editorial information using text, links, photographs and video. “Social media” typically allows the profile holder to use privacy settings to manage who has access to non-public content on their social media. “Social media” is not intended to include other Internet platforms, which may offer information, services, shopping or other types of content, but which lack the type of sharing of non-public information with “friends” selected by the profile holder, which characterizes social media platforms.

Question #1: What is the permissible manner and extent that attorneys, in client-related matters, may access and use information present on social media?

Brief Answer: Attorneys are generally permitted to access and use publicly-available information obtained from social media, including publicly-available information on a represented party’s social media. However, an attorney may not request access to private portions of a represented party’s social media, because such a request constitutes an impermissible contact with a represented party. An attorney may request access to private portions of unrepresented persons’ social media, but only if the attorney is truthful and not deceptive in making the request, and the attorney takes reasonable steps to ensure that the unrepresented person does not misunderstand the attorney’s interest or role.

Discussion:

There are many reasons why a diligent attorney might want to access social media, and therefore it is important that there be a clear understanding of the ethical considerations. As the Kentucky Bar Association Ethics Committee observed, social media may represent a new medium of communication, but “[t]he underlying principles of fairness and honesty are the same, regardless of context.”iii Accordingly, although Maine has no professional conduct rules that address attorney access to and use of social media explicitly, the Maine Rules of Professional Conduct provide sufficient guidance to address the ethical considerations relating to the use of social media. The particular Rules most relevant to the use of social media are several:

  • MRPC Rule 4.1 (“Truthfulness in Statements to Others”), prohibiting an attorney from knowingly making a false statement of material fact to a third party;MRPC Rule 4.2(a) (“Communications with Person Represented by Counsel”), prohibiting communications between an attorney and a represented party;
  • MRPC Rule 4.3 (“Dealing with Unrepresented Person”), prohibiting attorneys from implying they are disinterested when in fact working on behalf of a client; and
  • MRCP Rule 8.4 (“Misconduct”), prohibiting “dishonesty, fraud, deceit or misrepresentation” and “conduct that is prejudicial to the administration of justice.”

The Commission adopts the position, which appears to be unanimous across those jurisdictions that have addressed this issue, that attorneys may properly access and use public portions of social media, just as an attorney may access and use any other publicly-available information, document or statement.iv

The publicly-available information that the attorney may properly access and use includes the public portions of the social media of represented parties. Merely accessing public portions of social media does not constitute a “communication” with a represented party for the purposes of MRPC 4.2(a). We agree with the New York Bar Association Committee on Professional Ethics that “there is no deception in accessing a public website.”v

By contrast, the Commission concludes that an attorney may not directly or indirectly access or use private portions of a represented party’s social media, because the efforts to access and use the private information (even if such effort is fully automated through the social media interface itself) are prohibited “communications” with a represented party for the purpose of Rule 4.2(a).

An attorney may request access to non-public portions of the social media websites of unrepresented persons, provided that the attorney is truthful and not deceptive, as required by MRPC 4.1 (“in the course or representing a client, a lawyer shall not knowingly make a false statement of material fact or law to a third person”) and MRPC 8.4 (c) & (d) (“It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation” or “conduct that is prejudicial to the administration of justice.”).

Beyond the requirements of provisions analogous to MRPC 4.1 and 8.4, some states, such as New Hampshire and Massachusetts have gone further, requiring attorneys who seek access to the non-public social media of unrepresented parties to affirmatively disclose the purpose of the contact.vi Other states, such as New York and Oregon, do not require affirmative disclosure, but require only that the attorney honestly disclose the purpose of the contact if the unrepresented party inquires.vii

The Commission concludes that the lawyer’s obligations in accessing the non-public social media of unrepresented persons are sufficiently addressed by Rule 4.3, which provides:

In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. . . .

Accordingly, whether the lawyer must affirmatively disclose the purpose of the contact in order to obtain access to the non-public information on an unrepresented person’s social media will depend upon whether the lawyer’s failure to disclose the purpose, viewed in the context, would “imply that the lawyer is disinterested” or whether the lawyer knows or reasonably should know that the unrepresented person “misunderstands the lawyer’s role in the matter.” What specific disclosure the lawyer must make will depend upon the context, the sophistication or knowledge of the person contacted and the nature of the communications between the lawyer and the unrepresented person.


Question #2: To what extent may an attorney access information about jurors or potential jurors through social media?

Brief Answer: An attorney may access publicly available information on social media about jurors or potential jurors. However, an attorney may not request access to any non-public portions of a juror’s or potential juror’s social media. Attorneys must avoid accessing social media of a juror or potential juror where the attorney knows or reasonably should know that the social media site will alert the juror or potential juror to the fact that the attorney accessed the site. If an attorney becomes aware that the social media site alerted the juror or potential juror to the contact, the attorney must notify the Court of this fact.

Discussion: Most attorneys will seek as much information as possible about those who may serve as jurors on a particular case. In establishing norms for this conduct, the Commission has relied upon Rule 3.5 (“Impartiality and Decorum of the Tribunal”) and seeks to strike a careful balance between the party’s interest in access to information about jurors, the juror’s interest in avoiding intrusion into their privacy and personal lives, and the Court’s interest in preserving the integrity of the jury system.

An American Bar Association opinion provides, “Unless limited by law or court order, a lawyer may review a juror’s or prospective juror’s Internet presence, which may include postings by the juror or potential juror in advance of and during a trial.”viii This position has been adopted by those jurisdictions that have addressed this issue, based upon the “strong public interest in identifying jurors who might be tainted by improper bias or prejudice.”ix

However, an attorney’s access to information through jurors’ social media is subject to the limitations imposed by Rule 3.5(a) (prohibiting a lawyer from seeking to improperly influence a juror) and Rule 3.5(b) (prohibiting ex parte communication with jurors). These Rules prohibit attorneys from directly or indirectly requesting or attempting to gain access to non-public portions of a juror’s or prospective juror’s social media, because such access or request constitutes an impermissible ex parte “communication,” and also creates the possibility that the juror would become aware of the attorney’s effort, leading to the risk of improper influence.

As technology and online practices evolve, the distinction between passive access to publicly-available information and active communication with the subject of that information may not always be entirely clear. For example, some social media platforms, LinkedIn, for example, may send automatic messages to their members whenever someone with an open account views another member’s public profile.

New York considers this type of automatic message an impermissible ex parte “communication” with a juror that “may be considered a technical ethical violation.” By contrast, the American Bar Association takes a less stringent position, concluding that “[t]he fact that a juror or a potential juror may become aware that a lawyer is reviewing his Internet presence when a network setting notifies the juror of such does not constitute a communication from the lawyer.”

With respect to Rule 3.5(b), we agree with the position of the ABA because any other approach would be unworkable as a practical matter and would subject attorneys to potential ethics violations based upon the happenstance of user settings or new technologies that generate automated messages outside of the attorney’s reasonable knowledge or control.

However, that said, we remain very concerned about any possible interaction with jurors that would result in the juror becoming aware that the attorney is directly or indirectly seeking information. Any conduct which might create a perception on the part of a juror that an attorney may seek to intrude into personal or private information risks violation of Rule 3.5(a) and is potentially damaging to the independence and integrity of the jury system. Accordingly, where an attorney knows or reasonably should know that accessing any social media of a juror will result in such juror becoming aware of the attorney’s access, the attorney should refrain from accessing that social media. If the attorney learns that any juror or prospective juror has become aware of the attorney’s access of the juror’s social media, the attorney must notify the Court. The Court, in turn, may find it advisable to provide a cautionary instruction to all jurors that attorneys may research publicly-available information on their social media; that such conduct is permitted and appropriate; and that no juror should allow that to influence them in any way.


Question #3: Are attorneys permitted to connect with judges or other types of judicial, quasi-judicial or administrative hearing officers through social media?

Brief Answer: Attorneys are permitted to connect with judges and other judicial officers through social media, but they are precluded from having ex parte communications with, or from attempting to impermissibly influence, such judges or judicial officers through social media.

Discussion: The ethical considerations for attorney contact with judges and other judicial officers through social media are the same as apply to any other interactions with judges and judicial officers. The scope of permissible conduct is defined by MRPC 3.5(a), which prohibits attorneys from “seek[ing] to influence a judge, juror, prospective juror or other tribunal officer by means prohibited by law” and Rule 3.5(b), which prohibits attorneys from “communicat[ing] ex parte with such person, directly or indirectly, during the proceeding, concerning such proceeding unless otherwise authorized to do so by law or court order.” Based upon these rules, we agree with the Pennsylvania Bar Association that attorneys “may connect with judges on social media websites provided the purpose is not to influence the judge and reasonable efforts are taken to assure that there is no ex parte or other prohibited communication.”x

That said, attorneys must remain mindful that, while the Rules do not prohibit casual attorney contact with judges or other judicial officers through social media, attorneys and judges must take reasonable steps to avoid even the appearance of bias or partiality.

For that reason, some jurisdictions prohibit judges and attorneys from “friending” each other on social medial sites like Facebook,Xi and even New York, which permits judges to use social media, issued this cautionary caveat:

[A] judge also should be mindful of the appearance created when he/she establishes a connection with an attorney or anyone else appearing in the judge’s court through a social network. In some ways, this is no different from adding the person’s contact information into the judge’s Rolodex or address book or speaking to them in a public setting. But, the public nature of such a line (i.e. other users can normally see the judge’s friends or connections) and the increased access that the person would have to any personal information the judge chooses to post on his/her own profile page establish, at least, the appearance of a stronger bond. A judge must, therefore, consider whether any such online connections, alone or in combination with other facts, rise to the level of a ‘close social relationship’ requiring disclosure and/or recusal.xii

The same admonition applies to attorneys who seek to “friend” a judge through social media. The attorney must consider whether his or her online connection with a particular judge, alone or in combination with other facts, rises to the level of a “close relationship” requiring disclosure.
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Footnotes:
i http://www.pewinternet.org/fact-sheet/social-media/ as viewed on July 6, 2017.
ii See, e.g., B.M. v. D.M., 31 Misc. 3d 1211(a) (N.Y. Sup Ct. 2011) (Spousal support denied because wife’s social media post about starting belly dancing constituted an admission that contradicted her testimony that she rarely left home because she was in too much pain);
iii Kentucky Bar Assn., Ethics Comm., Formal Op. KBA E-434 (2012).
iv Pennsylvania Bar Ass’n Ethics Comm., Formal Op. 2014-300
v Id.
vi N.H. Bar Ass’n Ethics Advisory Comm., Op. 2012-13/05; Massachusetts Bar Ass’n Comm. On Prof Ethics Op. 2014-5 (2014).
vii NYCBA, Formal Op. 2010-2 (2010); Oregon State Bar Comm. On Legal Ethics, Formal Op. 2013-189 (2013). viii American Bar Ass’n Comm. On Ethics & Prof’l Responsibility, Formal Op. 14-466.
xi Id.
x Pennsylvania Bas Ass’n Ethics Comm., Formal Op. 2014-300
xi See Domville v. State, No. 4D12-556 (Fla. Dist. Ct. App. Sept. 5, 2012) (sitting judge disqualified in a criminal case because he was Facebook “friends” with the prosecutor, a status that would “prompt a reasonably prudent person to fear that he could not get a fair and impartial trial.”)
xii New York Advisory Committee on Judicial Ethics Opinion 08-176.


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