Although social media is now approaching its teenage years (Myspace, the first widely-used social media platform, was founded in August 2003), legal ethics in the use of social media is in some ways still very much in its infancy. Despite the fact that social media now plays at least some role in litigation with increasing frequency, many questions regarding ethics and the use of social media remain unanswered.
Social Media in Litigation
Some of the biggest questions at the intersection of social media and litigation involve issues relating case research and e-discovery. Gradually, bar associations across the country are beginning to provide guidance on these issues. Of course, it is important to acknowledge that these bar associations’ opinions do not necessarily reflect those of others, and that questions of ethics often require assessment on a case-by-case basis.
Some bar associations have affirmatively recognized that it is ethically permissible for a lawyer to use information that is publicly-available on social media for purposes of performing case research. If a litigant or witness has a public Facebook profile or Twitter feed, anything they post for all the world to see is fair game. Fundamentally, this makes sense: If anyone can access and use it, why should lawyers involved in litigation be prohibited from doing so?
On the other hand, bar associations have also stated that using deceptive means to gain access to non-public social media profiles violates lawyers’ ethical standards. For example, asking a third party to access an opposing party’s private social media content would likely be considered both deceptive and in violation of Rule 4.1 of the North Carolina Rules of Professional Conduct (“In the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person.”), since the comments to Rule 4.1 note that omitting a material fact can be “the equivalent of [an] affirmative false statement.”
With respect to communicating with a represented party, bar associations have stated that the rules that apply to social media are the same as those that apply offline.
In e-discovery, lawyers face many ethical issues in relation to social media as well. Many of these issues are similar to those that come up with other forms of electronically-stored information (ESI), which itself presents an entire world of ethical issues. As individuals – let alone large corporations – generate untold amounts of potentially-discoverable ESI on a daily basis, lawyers must be careful to avoid issues with regard to things like:
- Clients’ spoliation of evidence
- Failing to produce responsive ESI
- Disclosing protected information
- Overreaching in e-discovery requests (especially in light of the recent revisions to the Federal Rules of Civil Procedure)
- Failing to request key social media data in e-discovery
As social media continues to become more engrained in individuals’ personal lives and in businesses’ operations, it is becoming increasingly critical for lawyers to have a firm grasp on the ethical issues involved.
Cheshire Parker Schneider & Bryan, PLLC | Raleigh Professional License Defense Attorneys
Cheshire Parker Schneider & Bryan, PLLC provides representation for lawyers facing disciplinary action from the North Carolina State Bar. If you have run into ethical issues involving the use of social media, you can call (919) 833-3114 or contact us online for a confidential consultation.