The legal industry doesn’t always keep pace with technology. This often creates a lag in determining whether ethical rules are up-to-date, particularly since technology changes so fast. Social media ethics are no exception. Should you send friend requests or otherwise follow clients, potential clients, former clients, opposing parties, or witnesses? Before you send that friend request, make sure that you read this entire post.
Don’t Send a Friend Request Without Checking Your Local Rules
Some jurisdictions have, at least, some basic social media ethics in place for lawyers to follow. The rules may explain to whom you may send a friend request and whether you must clarify the reason why you’re sending the request. Make sure that you review any existing rules in your jurisdiction that affect how you engage in social media research on behalf of your clients.
Public Posts Are Generally Fair Game
Twitter, Instagram, Facebook, and Google Plus accounts all have offer the profile owner the ability to create public posts or private posts. If an account is public and you can see information that you need without sending a friend request, that information is generally fair game. The New York State Bar said that it is not a violation of social media ethics to use posts or other information set to public. The key in New York is that the attorney isn’t using any sort of deception to get the information. It’s already available and made public. The Oregon State Bar also addressed public posts. They stated that a website is just like an article found in a magazine or a book written about a person. If the post is public, it is a permitted source of information.
Should You Send a Friend Request or Follow Request to See Private Posts?
Sending a friend request or follow request to see private posts may be a direct violation of social media ethics in your jurisdiction. Yet, in other jurisdiction, what matters is whether you’re informing the recipient of your request as to why you’re interested in seeing their profile. Another factor to consider is whether the person is an opposing party (with or without legal representation), an employee of an opposing party, or non-party witnesses.
The Association of the Bar of the City of New York Committee on Professional Ethics issued a formal opinion that states lawyers aren’t allowed to engage in “trickery” to get access to someone’s private profile. This includes creating a fake profile under a name that the other person may recognize or creating a fake account with interests and details that may lead the person to believe they may know the person. However, lawyers can send a friend or follow request to someone who isn’t being represented by a lawyer and they don’t have to explain why they’re sending the request. They are not allowed to send friend requests to individuals that are employees of a party because social media posts can be obtained through traditional discover via subpoena and document request.
The Philadelphia Bar Association Professional Guidance Committee went a different route with their opinion. Lawyers must disclose the reason why they are sending the friend or follow request. Failure to do so violates Pennsylvania’s ethical rule of “conduct involving dishonesty, fraud, deceit or misrepresentation deceitful.” And, no, the lawyer may not use a third-party to send the request. It’s still a violation of social media ethics.
Stay Abreast of Rule Changes
Social media continues to change the legal landscape. While it’s important for you to take reasonable efforts to be a zealous advocate for your client, it’s also important that you abide by the social media ethics in your jurisdiction. Review the rules and be on the lookout for future changes to them!
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