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NEITHER FRIEND NOR FOLLOWER: ETHICAL

BOUNDARIES ON THE LAWYER’S USE

OF SOCIAL MEDIA

Robert Keeling, Tami Weerasingha-Cote &

John Paul Schnapper-Casteras*

A handful of state and local bars have begun to opine on lawyers’

use of social media in conducting investigations and informal discovery.

Despite the increasing prevalence and diversity of social media, how-

ever, these few bar authorities have addressed lawyers’ use of social

media in ways that are formalistic, limited in their technical explanations

and analogies, and even, at times, arbitrary. As a result, the use of

social media by litigants and their counsel has been needlessly and base-

lessly deterred. Rather than trying to address social media by relying on

inapposite analogies to the “real world” and grasping at some transient

definition of what is “public” vs. “private” information, state and local

bars should focus their analyses on the application of the existing Rules

of Professional Conduct and the time-tested prohibitions on fraud and

deception. Further, the ABA, state bars, and other committees seeking to

address the unique ethical questions and challenges raised by lawyers’

use of social media information should engage in a careful and informed

study of the nature and functionality of social media as a new and dis-

tinct method of producing and sharing information before seeking to

constrain its use under the existing Rules of Professional Conduct.

NTRODUCTION

................................................. 146

REVAILING

IEW

: I

NFORMAL

ISCOVERY OF

OCIAL

EDIA

CCOUNTS

IMITED TO

NFORMATION THAT

UBLICLY

VAILABLE

.................................. 148

A. State and Local Bars ............................... 148

B. Practitioners ....................................... 157

C. Courts ............................................. 158

II.

A B

ETTER

IEW

: I

NFORMAL

ISCOVERY OF

OCIAL

EDIA

NFORMATION

ROADLY

ERMISSIBLE

NDER

THE

URRENT

ULES OF

ROFESSIONAL

ONDUCT

........ 159

* Robert D. Keeling is a partner at Sidley Austin LLP whose practice includes a special

focus on electronic discovery matters. Tami Weerasingha-Cote is an associate at Sidley Aus-

tin LLP. JP Schnapper-Casteras is at attorney at the NAACP Legal Defense Fund. This Arti-

cle reflects the views of the authors alone and does not necessarily reflect the opinions of their

respective current or former employers.

145

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A. Public vs. Private: How Clear Is the Line and Is it

Important? ......................................... 160

B. Real-World Analogies: What Constitutes

“Communication About the Subject of the

Representation”? ................................... 166

C. Applying the Rules: What Are the Underlying

Purposes of the Relevant Rules of Professional

Conduct? .......................................... 171

1. ABA Model Rule of Professional Conduct 4.2 . . . 172

2. ABA Model Rule of Professional Conduct 4.3 . . . 176

3. ABA Model Rule of Professional Conduct 8.4 . . . 178

ONCLUSION

................................................... 181

NTRODUCTION

Under the smattering of ethics opinions and secondary guidance that

currently exist, intuitive and common uses of popular social media sites

by lawyers seeking information through informal discovery are either

prohibited or considered ethically questionable enough so as to chill their

use. For example, one local bar association has concluded that lawyers

may not seek access to non-public information posted by other litigants

on Facebook, either because the automatically generated “friend” request

message is an ethically impermissible “communication” with a repre-

sented party, or because such a message does not explicitly disclose the

motives of the request to an unrepresented party.

Following this logic,

the act of clicking the “follow” button on another party’s Twitter page,

which normally generates an automatic email notification, could also be

ethically impermissible, even though millions of people “follow” public

figures and friends on Twitter. Viewing the resumes of friends and

strangers alike on a site like LinkedIn is a widely accepted practice in

professional circles, yet if a lawyer views a litigant’s page, that too gen-

erates a notification message which could conceivably constitute an im-

permissible “communication.”

The few ethics opinions addressing the use of social media in infor-

mal discovery have focused largely on Facebook and MySpace, and most

do not directly address limits on using Twitter, LinkedIn, and other so-

cial media platforms. Some practitioners, however, have read these

opinions to limit informal discovery of social media information more

broadly to public information only.

Given the serious consequences of

San Diego Cnty. Bar Legal Ethics Comm., Op. 2011–2 (2011), available at https://

www.sdcba.org/index.cfm?pg=LEC2011-2.

See, e.g., P

RACTICING

NST

., S

OCIAL

EDIA AND THE

§ 9:6.2 (Kathryn L.

Ossian ed., 2013); Andy Radhakant & Matthew Diskin, How Social Media Are Transforming

Litigation, L

ITIG

., Spring 2013, at 17.

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violating ethical boundaries, this caution is understandable. Despite

these concerns, the fact remains that such limitations are overbroad and

unworkable.

In the physical world, lawyers routinely seek information about

other parties and witnesses outside of formal discovery procedures in

order to get a full understanding of the facts, develop appropriate litiga-

tion strategies, and craft effective discovery requests. For example, law-

yers frequently conduct public record searches and utilize private

investigators in order to obtain facts not publicly available. Indeed,

courts have recognized the critical importance of such informal discov-

ery in the expeditious processing and resolution of cases.

Generally, the

rules of professional conduct limit such informal discovery only to the

extent that the rules prohibit deceptive and fraudulent conduct, as well as

inappropriate communications with represented persons. In the realm of

social media, lawyers should be able to seek information just as freely.

To the extent several state and local bars seek to limit informal discovery

of social media content by likening the use of social media applications

to “real-world” communications, this reasoning often reflects a poor un-

derstanding of how such applications work, and fails to account for the

immense diversity in social application types and functionality. To the

extent practitioners are attempting to create clear rules of conduct for

social media research by reading existing ethics opinions as creating a

bright-line distinction between “public” and “non-public” social media

content, such a distinction is vague and impracticable, and will only

prove more so as technology develops over time.

Instead of grasping for some hazy definition of what is “public” or

trying to force social media usage into the mold of “real-world” commu-

nication, bar ethics committees and drafters of model rules should em-

brace standards that acknowledge the unique nature of social media

information. Specifically, we suggest that the use of social media in in-

formal discovery be governed by longstanding principles that censure

deception and fraud and we urge a commonsense understanding of what

types of virtual contact actually constitute “communication” under the

rules of professional conduct. Such standards will better serve plaintiffs,

defendants, and judicial administration because they would facilitate the

exchange of information, the basis of well-founded formal discovery,

and the efficient resolution of cases. Ultimately, rather than fragment

and foreclose the social media landscape from informal discovery, the

See, e.g., Niesig v. Team I, 558 N.E.2d 1030, 1034, 76 N.Y.2d 363, 372 (N.Y. 1990)

(describing informal discovery as serving both the litigants and the entire justice system by

uncovering relevant facts, thus promoting the expeditious resolution of disputes); Muriel Sie-

bert & Co. v. Intuit Inc., 868 N.E.2d 208, 210, 8 N.Y.3d 506, 511 (N.Y. 2007) (explaining that

informal discovery could streamline discovery and foster the prompt resolution of claims).

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governing principles should reflect the reality that social media is here to

stay. Social media contains increasingly voluminous and relevant infor-

mation for litigation, and should be usable by litigants within reasonable

ethical bounds.

To this end, Part I of this Article details sources of authority and

interpretations of the prevailing view that informal discovery of social

media information is limited to that which is publicly available. Part II

lays out and provides support for our view that, in fact, such discovery is

broadly permissible under traditional rules of professional conduct.

I. P

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The most authoritative bodies on the ethical obligations of practic-

ing lawyers—the American Bar Association (ABA) and several state bar

associations—have provided very little guidance on how lawyers may

permissibly seek information from social media sites through informal

discovery. Currently, neither the ABA’s model rules of professional

conduct nor any state version of these rules explicitly addresses social

media in any way. A handful of state and local bar ethical opinions ap-

plying existing rules to various social media research scenarios provide a

few dots on the map, but the only consistent conclusion these few opin-

ions share is that publicly available information is fair game. Practition-

ers have naturally clung to this rule—that informal discovery of social

media accounts is limited to information that is publicly available—as

the only clearly demarcated boundary line, and have propagated it

accordingly.

A. State and Local Bars

The Model Rules of Professional Conduct and their commentaries

do not explicitly address the permissibility of informal discovery of so-

cial media information. Several state and local bars, however, have is-

sued ethics opinions that address one or more aspects of this complex

issue. Although each opinion applies the relevant rules of professional

conduct to different and highly specific factual scenarios, several analyti-

cal themes are common to the group of opinions as a whole.

In 2005, the Oregon State Bar issued one of the first bar association

opinions on the subject of informal discovery of social media. The opin-

ion addresses whether a lawyer, in anticipation of litigation, may visit the

website of a represented party, and whether the lawyer may “communi-

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cate via the Web site” with representatives of that party.

The opinion

identifies the prohibition on a lawyer from communicating with another

party known to be represented about the subject of the representation as

the applicable rule,

noting that “the purpose of the rule is to ensure that

represented persons have the benefit of their lawyer’s counsel when dis-

cussing the subject of the representation with the adverse lawyer.”

The

opinion also takes as its premise that “there is no reason to distinguish

between electronic or nonelectronic forms of contact. Both are permitted

or both are prohibited.”

Reasoning that accessing an adverse party’s

public website is “no different from reading a magazine article or

purchasing a book written by that adversary,” the opinion concludes that

such activities are permissible because “the risks that [the relevant rule]

seeks to avoid are not implicated by such activities.”

As to whether the

lawyer may “communicate via the Web site” with representatives of the

adverse party, the opinion states that the relevant distinction is whether

the individual with whom the lawyer wants to communicate is a “repre-

sented person” within the meaning of the rules of professional conduct.

The opinion does not specify what type of activity via a website is con-

sidered “communication,” but concludes that, just as with any other writ-

ten communications, if the individual contacted is a represented person

(e.g., a managerial employee of the adverse party), then the communica-

tion is prohibited, but if the individual is a “nonmanagerial employee

who is merely a fact witness,” then such communication is permissible.

In 2009, the Philadelphia Bar Association Professional Guidance

Committee tackled the question of whether an ethical violation occurs if

a lawyer, seeking access to the non-public content of a witness’s

Facebook and MySpace accounts, asks a third person (someone whose

name the witness will not recognize) to “friend” the witness and seek

Or. Bar Ass’n, Formal Op. 2005-164 (2005), available at http://www.osbar.org/_docs/

ethics/2005-164.pdf.

Id. Oregon Rule of Professional Conduct 4.2 provides: “In representing a client or the

lawyer’s own interests, a lawyer shall not communicate or cause another to communicate on

the subject of the representation with a person the lawyer knows to be represented by a lawyer

on that subject unless: (a) the lawyer has the prior consent of a lawyer representing such other

person; (b) the lawyer is authorized by law or by court order to do so; or (c) a written agree-

ment requires a written notice or demand to be sent to such other person, in which case a copy

of such notice or demand shall also be sent to such other person’s lawyer.” O

. R

ULES OF

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’

ONDUCT

R. 4.2 (2014). This rule is very similar to Rule 4.2 of the American Bar

Association (ABA) Model Rules of Professional Conduct, except that the Model Rule does not

apply to lawyers acting in their own interest, and it makes no exception for communications

required by written agreements. See M

ODEL

ULES OF

ROF

’

ONDUCT

R. 4.2 (2013).

Or. Bar Ass’n, supra note 4.

Id.

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access to this information.

In this scenario, the witness was neither a

party to the litigation nor represented, and the third person stated only

truthful information in the request for access, but did not disclose her

relationship with the lawyer.

The opinion identifies two rules as rele-

vant to its inquiry: (1) the rule holding lawyers responsible for the con-

duct of their nonlawyer assistants, and (2) the rule stating that it is

professional misconduct for a lawyer to engage in acts involving dishon-

esty, fraud, deceit, or misrepresentation.

Noting that the lawyer would

be responsible for the actions of the third person under the first rule, the

opinion determines that the proposed course of action would be unethical

under the second rule.

Although the third person intends to use only

truthful information in the request for access, the opinion concludes that

the request would still be “deceptive” because it does not disclose the

true purpose of the request––gaining access to information that will be

shared with, and may be used by, the lawyer in litigation.

Recognizing

that individuals often grant access to their social media content without

knowing the motivations of those seeking access to it, the opinion none-

theless concludes that any deception on the part of other social media

users does not change the fact that such deception at the direction of a

lawyer is a violation of ethical rules.

Interestingly, the opinion explic-

itly permits the lawyer to ask the witness “forthrightly” for access, al-

though it is not clear whether such a request must include an explicit

disclosure that the information is sought for the purposes of litigation, or

whether the lawyer could rely on name recognition for the request to be

considered “forthright.”

In 2010, the New York State Bar Committee on Professional Ethics

addressed a question similar to that addressed by the Oregon State Bar: is

it permissible for a lawyer representing a client during litigation to access

Phila. Bar Ass’n Prof’l Guidance Comm., Op. 2009-02, 1 (2009), available at http://

www.philadelphiabar.org/WebObjects/PBAReadOnly.woa/Contents/WebServerResources/

CMSResources/Opinion_2009-2.pdf.

Id.

Id. at 2. Pennsylvania Rule of Professional Conduct 5.3 states in pertinent part: “With

respect to a nonlawyer employed or retained by or associated with a lawyer: . . . (c) a lawyer

shall be responsible for conduct of such a person that would be a violation of the Rules of

Professional Conduct if engaged in by a lawyer if: (1) the lawyer orders or, with the knowl-

edge of the specific conduct, ratifies the conduct involved.” P

. R

ULES OF

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ONDUCT

R. 5.3 (2013). Pennsylvania Rule of Professional Conduct 8.4 states in pertinent part: “It is

professional misconduct for a lawyer to: . . . (c) engage in conduct involving dishonesty, fraud,

deceit or misrepresentation” P

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ULES OF

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ONDUCT

R. 8.4 (2013). These rules are

essentially identical to Rules 5.3 and 8.4 of the ABA Model Rules of Professional Conduct.

See M

ODEL

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ONDUCT

R. 5.3, 8.4 (2013).

Phila. Bar Ass’n Prof’l Guidance Comm., supra note 11, at 3.

Id.

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the public pages of another party’s social networking website, such as

Facebook or MySpace?

The Committee heavily references the 2009

Philadelphia Bar opinion and seems to agree that the relevant rule is that

it is professional misconduct for a lawyer to engage in acts involving

dishonesty, fraud, deceit, or misrepresentation.

The Committee, how-

ever, reasons that the rule against deception is not implicated in the spe-

cific scenario addressed in its opinion because “the lawyer is not

engaging in deception by accessing a public website that is available to

anyone in the network, provided that the lawyer does not employ decep-

tion in any other way (including, for example, employing deception to

become a member of the network).”

Consequently, the opinion con-

cludes that a lawyer “may ethically view and access the Facebook and

MySpace profiles of a party other than the lawyer’s client in litigation as

long as the party’s profile is available to all members in the network and

the lawyer neither ‘friends’ the other party nor directs someone else to do

so.”

Although this statement seems to prohibit a lawyer from seeking

to “friend” other parties, the opinion explicitly qualifies its conclusion by

explaining that it does not address the ethical implications of a lawyer

seeking to “friend” a represented party or an unrepresented party. The

Committee notes, however, that if a lawyer attempts to “friend” a repre-

sented party, such conduct would be governed by the rule prohibiting

communication with a represented party without prior consent from that

party’s lawyer, and that if a lawyer attempts to “friend” an unrepresented

party, such conduct would be governed by the rule prohibiting lawyers

from implying that they are disinterested and requiring them to correct

any misunderstandings about their role.

N.Y. State Bar Ass’n Comm. on Prof’l Ethics, Op. 843 (2010), available at http://

www.nysba.org/CustomTemplates/Content.aspx?id=5162.

Id. New York Rule of Professional Conduct 8.4 states in pertinent part: “A lawyer or

law firms shall not: . . . (c) engage in conduct involving dishonesty, fraud, deceit or misrepre-

sentation.” N. Y. R

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R. 8.4 (2013). This rule is essentially the same

as Rule 8.4 of the ABA Model Rules of Professional Conduct. See M

ODEL

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ONDUCT

R. 8.4 (2013).

N.Y. State Bar Ass’n Comm. on Prof’l Ethics, supra note 18.

Id.

Id. at n.1. New York Rule of Professional Conduct 4.2 states in pertinent part: “In

representing a client, a lawyer shall not communicate or cause another to communicate about

the subject of the representation with a party the lawyer knows to be represented by another

lawyer in the matter, unless the lawyer has the prior consent of the other lawyer or is author-

ized to do so by law.” N.Y. R

ULES OF

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’

ONDUCT

R. 4.2 (2013). This rule is substan-

tially the same as Rule 4.2 of the ABA Model Rules of Professional Conduct, except that the

Model Rule does not prohibit the lawyer from “causing another to communicate.” See M

ODEL

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’

ONDUCT

R. 4.2 (2013). New York Rule of Professional Conduct 4.3 states

in pertinent part: “In communicating 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.”

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The New York City Bar Committee on Professional Ethics also is-

sued an opinion in 2010 on the subject of lawyers seeking access to so-

cial media content.

This opinion addresses “the narrow question of

whether a lawyer, acting either alone or through an agent such as a pri-

vate investigator, may resort to trickery via the internet to gain access to

an otherwise secure social networking page and the potentially helpful

information it holds,” and particularly focuses on the lawyer’s “direct or

indirect use of affirmatively ‘deceptive’ behavior to ‘friend’ potential

witnesses.”

Consistent with New York’s “oft-cited policy in favor of

informal discovery,” the opinion concludes that “an attorney or her agent

may use her real name and profile to send a ‘friend request’ to obtain

information from an unrepresented person’s social networking website

without also disclosing the reasons for making the request” and that the

ethical boundaries to “friending” are “not crossed when an attorney or

investigator uses only truthful information to obtain access to a website,

subject to compliance with all other ethical requirements.”

A footnote

to this conclusion states that the communications of a lawyer and her

agents with parties known to be represented by counsel “are governed by

Rule 4.2, which prohibits such communications unless the prior consent

of the party’s lawyer is obtained or the conduct is authorized by law,” but

does not explicitly conclude that “friending” a represented party consti-

tutes a communication that would violate the rule.

If the attorney or her agent seeks to “friend” an individual under

false pretenses (e.g., by creating a fake profile or using false information

in the request), the New York City opinion concludes that such activities

would violate both the rule prohibiting lawyers from engaging in conduct

involving dishonesty, fraud, deceit, or misrepresentation and the rule

prohibiting lawyers from knowingly making false statements during the

course of representation.

Although the Committee acknowledges that

other ethics opinions have provided “that deception may be permissible

in rare instances when it appears that no other option is available to ob-

N. Y. R

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R. 4.3 (2013). This rule is nearly identical to Rule 4.3 of the

ABA Model Rules of Professional Conduct. See M

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R. 4.3

(2013).

N.Y.C. Bar Ass’n, Formal Op. 2010–2 (2010), available at http://www.nycbar.org/

ethics/ethics-opinions-local/2010-opinions/786-obtaining-evidence-from-social-networking-

websites.

Id.

Id. at n.4.

Id. New York Rule of Professional Conduct 4.1 provides: “In the course of represent-

ing a client, a lawyer shall not knowingly make a false statement of fact or law to a third

person.” N. Y. R

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R. 4.1 (2013). This rule is essentially the same as

Rule 4.1(a) of the ABA Model Rules of Professional Conduct. See M

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R. 4.1(a) (2013).

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tain key evidence,” the Committee decides that these limited exceptions

are “inapplicable” to social networking websites “because non-deceptive

means of communication ordinarily are available to obtain this informa-

tion” (i.e., the use of formal discovery mechanisms).

In 2011, the San Diego County Bar Legal Ethics Committee issued

an opinion explicitly condemning as unethical the act of a sending a

“friend” request to parties or witnesses–– represented or unrepresented—

where the “friend” request contains the lawyer’s real name and no other

information.

The opinion first focuses on the rule prohibiting a lawyer

from communicating with a represented party about the subject of the

representation.

When a lawyer clicks on the “Add as Friend” button on

Facebook, the website sends an automated message to the would-be

friend stating, “[lawyer’s name] wants to be friends with you on

Facebook,” and gives the option to accept or decline the request.

Al-

though this message is generated by the website and not the attorney, the

Committee concludes that it is still “at least an indirect ex parte commu-

nication with a represented party” for the purposes of the ethical analy-

sis.

As to whether this communication is “about the subject of the

representation,” the Committee reasons that if the communication “is

motivated by the quest for information about the subject of the represen-

tation, [then] the communication with the represented party is about the

subject matter of that representation” and is therefore prohibited.

The opinion next considers the rule prohibiting a lawyer from en-

gaging in deception and concludes that this duty forecloses a lawyer

from seeking to “friend” a witness or party, even if they are unrepre-

sented, without disclosing the purpose of the “friend request.”

The

N.Y.C. Bar Ass’n, supra note 23.

San Diego Cnty. Bar Legal Ethics Comm., supra note 1.

Id. California Rule of Professional Conduct 2–100 states, in relevant part: “While

representing a client, a member shall not communicate directly or indirectly about the subject

of the representation with a party the member knows to be represented by another lawyer in

the matter, unless the member has the consent of the other lawyer.” Id. (citing C

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R. 2–100 (2011)). Under this rule, communications with a public officer,

board, committee, or body; communications initiated by a party seeking advice or representa-

tion from an independent lawyer of the party’s choice; and communications otherwise author-

ized by law are permitted. Id. This rule is generally the same as Rule 4.2 of the ABA Model

Rules of Professional Conduct, except that the Model Rule does not prohibit indirect commu-

nications, and the Model Rule does not create exceptions for communications with public

entities or communications initiated by a party. See M

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R. 4.2

(2010).

San Diego Cnty. Bar Legal Ethics Comm., supra note 1, at 1.

Id.

Id. at 1–2.

Id. Rule 4.1(a) of the ABA Model Rules of Professional Conduct mandates that in the

in course of representing a client, a lawyer “shall not knowingly make a false statement of

material fact or law to a third person.” M

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R. 4.1(a) (2013).

Model Rule 8.4(c) further prohibits “conduct involving dishonesty, fraud, deceit or misrepre-

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opinion relies heavily on the 2009 analysis of the Philadelphia Bar Asso-

ciation Professional Guidance Committee, “notwithstanding the value in

informal discovery on which the City of New York Bar Association fo-

cused.”

Interestingly, the opinion notes that “[n]othing would preclude

the attorney’s client himself from making a friend request to an opposing

party or a potential witness in the case” on the ground that the target

would recognize the sender by name.

This point underscores the opin-

ion’s conclusion that a “friend request” by the lawyer is deceptive be-

cause such a request seeks “to exploit a party’s unfamiliarity with the

attorney’s identity and therefore his adversarial relationship with the

recipient.”

Two additional opinions shed light on this topic by examining the

use of social media by lawyers searching for information on potential

and sitting jurors.

The first, issued by the New York County Lawyers’

Association (NYCLA) Committee on Professional Ethics in 2011, con-

cludes that it is proper and ethical for a lawyer to undertake a pretrial

search of a prospective juror’s social networking site and to visit the

publicly available sites of a sitting juror as long as the lawyer does not

“friend” the juror, subscribe to the juror’s Twitter accounts, or “other-

wise communicate in any way with the juror or act in any way by which

the juror becomes aware of the monitoring.”

The NYCLA Committee

explained that such social media activities are impermissible communi-

cations because if a juror becomes aware of a lawyer’s efforts to view

her social media sites, “it might tend to influence the juror’s conduct

with respect to the trial.”

The second opinion, issued by the New York

sentation.” M

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’

ONDUCT

R. 8.4(c) (2013). As the opinion acknowl-

edges, California has not incorporated these provisions of the Model Rules into its Rules of

Professional Conduct or its State Bar Act. San Diego Cnty. Bar Legal Ethics Comm., supra

note 1, at 5. The opinion argues, however, that (1) the duty not to deceive judges (contained in

California code) arguably stands for a broader duty not to deceive anyone; (2) there is substan-

tial California case law supporting the proposition that lawyers have a duty not to deceive,

even outside of the courtroom; and (3) there is a common law duty not to deceive. Id. On this

basis, the opinion proceeds from the assumption that lawyers are prohibited from engaging in

deception. Id.

San Diego Cnty. Bar Legal Ethics Comm. 2011–2, supra note 1, at 6.

Id.

See, e.g., N.Y. Cnty. Law. Ass’n Comm. on Prof’l Ethics, Formal Op. 743 (2011),

available at http://www.nycla.org/siteFiles/Publications/Publications1450_0.pdf; N.Y.C. Bar

Ass’n, Formal Op. 2012-2 (2012), available at http://www.nycbar.org/ethics/ethics-opinions-

local/2012opinions/1479-formal-opinion-2012-02. These opinions are focused on the applica-

tion of rules that forbid communications between lawyers and jurors, which generally embody

stricter “no contact” principles because they prohibit all communications, not just those “about

the subject matter of the representation.” See M

ODEL

ULES OF

ROF

’

ONDUCT

R. 3.5 (b)

(2013). These opinions, however, still provide insight into how bar committees understand the

application of professional conduct rules in the social media context.

N.Y. Cnty. Law. Ass’n Comm. on Prof’l Ethics, supra note 38, at 1.

Id.

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City Bar Committee on Professional Ethics in 2012, similarly concluded

that lawyers may use social media websites for juror research “as long as

no communication occurs between the lawyer and the juror as a result.”

This opinion maintains that if a juror receives a “friend” request (or any

other type of invitation or notification) or “otherwise learn[s] of the attor-

ney’s viewing or attempted viewing of the juror’s pages, posts or com-

ments,” this constitutes a “prohibited communication.”

The Committee

defines “communication” as the transmission of information from one

person to another, and explains that in the social media context, “friend”

requests and other such activities at minimum impart to the targeted juror

knowledge that he or she is being investigated. The intent of the attorney

using social media is irrelevant.

Most recently, in 2014, the Commercial and Federal Litigation Sec-

tion of the New York State Bar Association issued a more detailed set of

social media guidelines, covering a range of scenarios beyond the dis-

covery realm, although these guidelines are not binding on disciplinary

proceedings and do not represent the views of the State Bar Association

until they are formally adopted as such.

The guidelines continue to

distinguish between “public” versus “non-public” portions of a social

media profile, and state that a “lawyer may view the public portion of a

person’s social media profile or public posts even if such person is repre-

sented by another lawyer”—including for impeachment purposes.

Moreover, the guidelines urge awareness and caution of “unintentional

communications,” such as LinkedIn notifications that can automatically

generate a notice to the person whose profile was viewed.

The guide-

lines recite the normal rule about contact with a represented person, but

note in the comments that caution should be used before indirectly acces-

sing social media content, even if the lawyer “rightfully has a right to

view it, such as [through] a professional group where both the lawyer

and represented person are members or as a result of being a ‘friend’ of a

‘friend’ of such represented person.”

Finally, the guidelines about

viewing a represented person’s social media profile expressly apply to

agents, including “a lawyer’s investigator, legal assistant, secretary, or

agent and could apply to the lawyer’s client as well.”

N.Y.C. Bar Ass’n, supra note 23.

Id.

OMMERCIAL

& F

. L

ITIG

. S

ECTION

, N.Y. S

TATE

’

, S

OCIAL

EDIA

THICS

UIDELINES

(2014), available at https://www.nysba.org/Sections/Commercial_Federal_Litiga

tion/Com_Fed_PDFs/Social_Media_Ethics_Guidelines.html.

Id. at 8.

Id.

Id. at 9–10.

Id. at 10.

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In considering this group of opinions as a whole, it must first be

noted that the opinions are few in number, they come from only a hand-

ful of bar associations, and the majority of the bar associations repre-

sented are local, not state, associations. The vast majority of state bar

associations, including the American Bar Association, have yet to offi-

cially weigh in on the subject of informal discovery of social media.

Further, there are many points of disagreement amongst this set of opin-

ions. For example, while the New York City Bar considers contact with

unrepresented persons by a lawyer or their agent permissible as long as

only truthful information is used, the Philadelphia Bar maintains that

only direct contact by the lawyer is permissible, while the San Diego

County Bar prohibits any such contact.

Consequently, one cannot yet

rely on these opinions as either comprehensive or authoritative on the

question of the ethical permissibility of social media informal discovery.

Several common themes, however, emerge from this set of opinions

that may provide insight into how local and state bar associations gener-

ally view this issue. First, the opinions generally seem to consider all

forms of social media activity to be “communication,” although only one

opinion explicitly addresses why such activities should be considered

“communication” by providing an analytical basis for this conclusion.

The remaining opinions appear simply to assume this point. Second, all

of the opinions explicitly or implicitly accepted that there is a clear line

between “public” and “private” information on social media websites.

For example, the Oregon and New York State Bar opinions rely on this

distinction by declaring that viewing “public” websites and pages is per-

missible.

The New York City Bar opinion on juror research also relies

on this distinction, explaining that “[i]n general, attorneys should only

view information that potential jurors intend to be—and make—pub-

lic.”

Third, at least three opinions conclude that failure to disclose cer-

tain information, such as affiliation with the lawyer or the lawyer’s

interest in the litigation, constitutes deception, even if only truthful infor-

mation is provided by the seeker through the use of social media.

Only

Compare N.Y.C. Bar Ass’n, supra note 23, with Phila. Bar Ass’n Prof’l Guidance

Comm., supra note 11, and San Diego Cnty. Bar Legal Ethics Comm., supra note 1.

See N.Y.C. Bar Ass’n, supra note 23.

See Or. Bar Ass’n, supra note 4; N.Y. State Bar Ass’n Comm. on Prof’l Ethics, supra

note 18.

See N.Y.C. Bar Ass’n, supra note 23.

See Phila. Bar Ass’n Prof’l Guidance Comm., supra note 11; San Diego Cnty. Bar

Legal Ethics Comm., supra note 1; N.Y. State Bar Ass’n Comm. on Prof’l Ethics, supra note

18.

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one opinion comes to a different conclusion,

while the remaining opin-

ions are silent on this topic.

B. Practitioners

Given the relative paucity of authority on the ethical boundaries of

informal discovery of social media information, practitioners and aca-

demics have generally concluded that lawyers should take the most con-

servative approach to such informal discovery—to limit their research to

information that is “publicly available” and not require permission from

or notification to the target of the research. For example, one of only a

few legal treatises focused on social media definitively states:

An attorney may not use social media to contact or

“friend” a juror or a represented adverse party. These

prohibitions also apply to those acting on behalf of the

attorney. However, attorneys, like the general public,

may view the public portions of anyone’s social media

site. The one major exception to this rule on viewing

public portions of a social media site arises when such

viewing constitutes contact. This can happen with social

media sites that generate automated responses to the ac-

count holder.

Although the treatise acknowledges that the situation is “a little less

clear when the attorney or her agent wants to contact via social media an

unrepresented party that is likely to be called as a witness,” it goes on to

explain that jurisdictions take different approaches, and some require full

disclosure of the reason for the contact.

Similarly, a recent article on

the role of social media in litigation, authored by two practicing attor-

neys, cautions:

Social media sites are ethical minefields that many law-

yers are only now beginning to grapple with. We are

probably on safe ground when we access information

that users have knowingly made available to the public.

Unsurprisingly, courts have accepted that there is no rea-

sonable expectation of privacy in that kind of informa-

tion. However, it is ethically problematic for lawyers to

See N.Y.C. Bar Ass’n, supra note 23 (concluding that attorneys or their agent may use

their real name and profile to send a “friend” request to obtain information from an unrepre-

sented person’s social networking website without also disclosing the reason for the request).

RACTICING

NSTIT

., supra note 2, § 9:6.2.

Id.

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“friend” people just to get access to information in their

social media profiles.

Countless other publications have issued similar warnings to law-

yers seeking to engage in informal discovery of social media.

Limiting

informal discovery to only publicly available social media information is

a quite conservative approach, considering that none of the existing bar

opinions mandate such restrictions. Even the most restrictive opinion—

the San Diego County Bar opinion—permits lawyers to “friend” unrep-

resented persons as long as they disclose their interest in seeking the

information.

This risk-averse approach is both understandable and

wise, however, considering the serious consequences, both professional

and personal, that can result from committing an ethical violation. Until

the ABA and the state bars issue clear rules and guidance explicitly de-

lineating ethical boundaries for informal discovery of social media, prac-

titioners will likely continue to refrain from all but the most circumspect

uses of this valuable source of information.

C. Courts

To our knowledge, courts have not directly ruled on the extent to

which the rules of professional conduct limit informal discovery of social

media information. Some courts have addressed related topics, including

the admissibility of evidence gathered through informal discovery of so-

cial media sites, the scope of formal discovery of social media informa-

tion, and the implications of other laws (such as the Stored

Communications Act, 18 U.S.C. § 2701 (2002)) on the collection of so-

cial media information.

These cases, however, do not apply the rules

Radhakant & Diskin, supra note 2.

See, e.g., Justin P. Murphy & Matthew A. Esworthy, The ESI Tsunami: A Comprehen-

sive Discussion about Electronically Stored Information in Government Investigations and

Criminal Cases, C

RIM

. J

UST

., Spring 2012, at 31, 34 (noting that lawyers “can run afoul of

ethics rules when they use social media to gather evidence that is not publicly available”);

Social Networking Sites Are Valuable Tools for Lawyers: But Beware the Potential Ethical

Pitfalls, I

NTERNET

AWYERS

, http://www.netforlawyers.com/content/social-networking-

sites-are-valuable-tools-lawyers-beware-potential-ethical-pitfalls (last visited Aug. 22, 2014)

(discussing the Philadelphia Bar opinion, and oting that such ethical dilemmas can be avoided

by limiting such research to public profiles only, since “there would be no actual contact or

exchange with the profile’s owner”).

San Diego Cnty. Bar Legal Ethics Comm., supra note 1.

See, e.g., Griffin v. Maryland, 19 A.3d 415, 423–24 (Md. 2011) (holding that trial

court abused its discretion by admitting into evidence pages printed from MySpace that were

not appropriately authenticated); Tienda v. State, 358 S.W.3d 633, 642, 647 (Tex. Crim. App.

2012) (concluding that because there was sufficient circumstantial evidence to authenticate

photographs taken from defendant’s MySpace profile, the evidence was properly admitted);

Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965, 977–990 (C.D. Cal. 2010) (analyzing

whether social-networking sites “fall within the ambit” of the Stored Communications Act);

Romano v. Steelcase, 907 N.Y.S.2d 650 (App. Div. 2010) (considering scope of permissible

discovery of social media information).

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of professional conduct in a disciplinary context, and it is well estab-

lished that ethical and evidentiary rulings do not necessarily run parallel

to each other. Consequently, although such cases might inform our un-

derstanding of the courts’ views on the subject, they do not provide a

clear answer as to what conduct is ethically permissible.

II. A B

ETTER

IEW

: I

NFORMAL

ISCOVERY OF

OCIAL

EDIA

NFORMATION

ROADLY

ERMISSIBLE

NDER THE

URRENT

ULES OF

ROFESSIONAL

ONDUCT

The prevailing view that ethical obligations constrain informal dis-

covery of social media information to that which is publicly available

relies on several misconceptions that reflect a poor understanding of both

the nature of social media and the underlying purposes of the relevant

rules of professional conduct. First, this view rests on a false premise

that a clear distinction can be made between what is “public” and what is

“private” on any given social media website. In fact, the blurry line be-

tween public and private information that exists in most, if not all, social

media contexts makes it impossible to rely effectively on this distinction

as the basis for a rule lawyers can easily follow. Further, it is unclear

how the concept of “privacy” is germane to ethical inquiries under the

relevant rules of professional conduct.

Second, the existing bar opinions miscategorize social media activi-

ties as “communications” within the meaning of the relevant rules of

professional conduct based on partial and ill-fitting analogies to commu-

nications in the physical (i.e., non-virtual) world. Social media enable

users to share information in novel and unique ways, and consequently,

social media activities are not easily transplanted into “real-world” sce-

narios. To properly analogize social media activities to real-world inter-

actions, the specific function of each type of activity must be understood

in the context of the application within which it operates—the existing

bar opinions fail to do this.

Third, the existing bar opinions limit their analyses of the relevant

rules of professional conduct to determining whether certain social media

activities fall under the definitional meaning of specific words within the

rules, such as “communication” or “deception.” Instead, the bar opinions

could analyze whether the social media activity at issue offends the un-

derlying purposes of each relevant rule and tie their conclusions and rul-

ings to these purposes accordingly.

As a result of these misconceptions and analytical missteps, the pre-

vailing view is unnecessarily restrictive. In fact, the existing rules of

professional conduct allow for broad and extensive informal discovery of

social media information. Properly analyzed and applied, these rules

prohibit only the use of explicit fraud and misrepresentation by lawyers

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seeking social media information (e.g., creating fake identities or

profiles) and direct questioning of targets via social media.

A. Public vs. Private: How Clear Is the Line and Is it Important?

As detailed above, the prevailing view pressed by practitioners and

bar associations alike relies on a clear distinction between “public” and

“private” social media information.

Most of the bar opinions and prac-

titioner publications do not explain precisely what the term “public” en-

compasses, but instead simply presume the term speaks for itself.

The

few sources that address the meaning of “public” conclude that where

attorney conduct moves beyond viewing social media information into

contact with the research target, then it is likely the information is “non-

public” (or, in other words, “private”).

This definition does very little

in the way of drawing a clear line between public and private social me-

dia information—largely because it is impossible to draw such a line due

to the intrinsic nature of social media. The sheer number and diversity of

social media applications and websites, constant innovations in social

media, layers of information sharing possible via social media, transfera-

bility of information between social media users, and many other factors

contribute to the inherent blurriness between “public” and “private” so-

cial media information. The existing bar opinions and treatises assume

not only that the public-private divide makes sense, but also that the line

between them can be drawn clearly and easily in any social media con-

text.

In reality, this line cannot be drawn clearly or easily and should

not govern the extent to which informal discovery of social media is

ethically permissible. Even if it were possible to draw a clear line be-

tween the two, the bar opinions and practitioner publications fail to ex-

plain why or how the designation of information as “public” or “private”

should be a relevant consideration in the application of the cited rules of

professional conduct. This further supports our contention that the ethi-

cal rules governing informal discovery of social media information

should not rest on the fictitious distinction between public and private.

“Social media” is generally defined as “a group of Internet-based

applications . . . that allow the creation and exchange of User Generated

Content.”

The term “social media,” therefore, does not refer to a single

See supra Part I.A.

See, e.g., N.Y. State Bar Ass’n Comm. on Prof’l Ethics, supra note 18; Radhakant &

Diskin, supra note 2, at 17–22.

San Diego Cnty. Bar Legal Ethics Comm., supra note 1; N.Y. Cnty. Law. Ass’n

Comm. on Prof’l Ethics, supra note 38; see, e.g., P

RACTICING

NST

., supra note 2, at

9:32–33.

See, e.g., San Diego Cnty. Bar Legal Ethics Comm., supra note 1.

Andreas M. Kaplan & Michael Haenlein, Users of the World, Unite! The Challenges

and Opportunities of Social Media, 53 B

. H

ORIZONS

59, 61 (2010); Social Media Definition,

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method of information sharing, but rather encompasses potentially infi-

nite different modes. At present, there are hundreds of social media plat-

forms

and more than a billion accounts, or profiles, on Facebook and

other websites.

As a group of scholars explains, “[t]here currently ex-

ists a rich and diverse ecology of social media sites, which vary in terms

of their scope and functionality.”

Each of these thousands of social

media websites operate independently and uniquely—governed by their

own individual policies for membership, information sharing, privacy,

and notification.

This diversity presents the first problem with the practical applica-

tion of the public-private distinction: how lawyers are supposed to deter-

mine which information on any given website is “public” if this

designation depends on how each site functions. It is not reasonable to

expect lawyers, courts, and bar committees tasked with implementing the

rules of professional conduct to know and understand the intricate inner

workings of these thousands of social media websites. Under the pre-

vailing view, such knowledge is necessary in order to undertake any in-

formal discovery

—otherwise, lawyers will not know if even viewing a

profile, such as on LinkedIn, will trigger a notification. Such knowledge

would also be necessary for lawyers who intend to object to informal

discovery undertaken by the opposition, and for a court or bar committee

seeking to enforce ethical rules. The bar opinions on which this prevail-

ing view is based focus their analyses on a few well-known sites—

namely, Facebook, MySpace and Twitter. These opinions assume that

their Facebook-specific determinations can be easily applied to other so-

cial media platforms and websites, and expect lawyers to discern the op-

erational equivalent of “friending” for other websites they may want to

explore—an approach that is likely to produce inconsistent results. Even

XFORD

ICTIONARIES

, http://www.oxforddictionaries.com/us/definition/american_english/so-

cial-media (last visited Aug. 22, 2014) (defining social media as “websites and applications

that enable users to create and share content or to participate in social networking.”).

See Richard Hanna, Andrew Rohm & Victoria L. Crittenden, We’re All Connected:

The Power of the Social Media Ecosystem, 54 B

. H

ORIZONS

265, 266 (2011) (explaining that

social media platforms include social networking, text messaging, photo-sharing, podcasts,

video-streaming, wikis, blogs, discussion boards, micro-blogging, and location-based tools).

See Jemima Kiss, Facebook’s 10th Birthday: From College Dorm to 1.23 Billion

Users, T

UARDIAN

, Feb. 3, 2014, http://www.theguardian.com/technology/2014/feb/04/

facebook-10-years-mark-zuckerberg; Ingrid Lunden, Twitter May Have 500M+ Users But

Only 170M Are Active, 75% On Twitter’s Own Clients, T

ECH

RUNCH

(July 31, 2012), http://

techcrunch.com/2012/07/31/twitter-may-have-500m-users-but-only-170m-are-active-75-on-

twitters-own-clients/; Skype Grows FY Revenues 20%,Reaches 663mln Users, T

ELECOMPAPER

(Mar. 8, 2011), http://www.telecompaper.com/news/skype-grows-fy-revenues-20-reaches-663-

mln-users—790254.

Jan H. Kietzmann et al., Social Media? Get Serious! Understanding the Functional

Building Blocks of Social Media, 54 B

. H

ORIZONS

241, 242 (2011).

E.g., N.Y.C. Bar Ass’n, supra note 23 (“It is the duty of the attorney to understand the

functionality and privacy settings of any service she wishes to utilize for research.”).

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the bar opinions and practitioner publications that seek to provide some

broader guidance by defining “private” information, as that which re-

quires some kind of contact, acknowledge the uncertainty implicit in this

rule due to confusion or lack of awareness regarding the functionality of

social media websites.

This concern could be laid to rest perhaps by adding a corollary to

the public-private rule requiring lawyers to learn the operational details

of any social media website they intend to use.

Even assuming, how-

ever, that lawyers should be responsible for learning the operational de-

tails of every social media website that they or their opponent make use

of during a case, the fact that such websites are constantly changing their

operations and policies presents another obstacle for lawyers trying to

figure out what information is “public.”

Social media websites are by

their very nature innovative—their success or failure depends in large

part on their ability to adapt to changing interests and trends. To accu-

rately determine what is “public” social media information, lawyers will

have to constantly update their knowledge of social media websites. For

example, in its nine-year history, Facebook has made countless changes

to many core aspects of the site, including multiple changes to its classi-

fication system for personal data, search features, data visibility restric-

tions, and privacy policies.

As a result, the line between public and

N.Y. Cnty. Law. Ass’n Comm. on Prof’l Ethics, supra note 38 (“Moreover, under

some circumstances a juror may become aware of a lawyer’s visit to the juror’s website . . . the

contact may well consist of an impermissible communication.”); N.Y.C. Bar Ass’n, supra note

39 (“Even if the attorney does not intend for or know that a communication will occur, the

resulting inadvertent communication may still violate the Rule.”); P

RACTICING

NST

supra note 2, at 9–33 (acknowledging a lack of certainty in the ethical implications of “situa-

tions where the attorney was ignorant or unaware of the automatic response procedures” of a

social media website).

However, this would not help lawyers with the burden of learning about social media

websites used by the opposition. Further, courts and bar committees would still need more

comprehensive knowledge in order to have an informed view of what is public and private

information.

See, e.g., Joe Nocera, Facebook’s New Rules, N.Y. T

IMES

, Oct. 18, 2013, http://www

.nytimes.com/2013/10/19/opinion/nocera-facebooks-new-rules.html (“In its short nine-year ex-

istence, Facebook has made many changes to its privacy policies . . . .”).

See id.; see also Mandy Gardner, Facebook Privacy Settings Are Changing Again,

UARDIAN

IBERTY

OICE

(Oct. 30, 2013), http://guardianlv.com/2013/10/facebook-privacy-

settings-are-changing-again/ (“Facebook profiles will no longer be invisible to certain people

unless they have already been officially blocked by other users. Site administrators say the

reason for the Facebook privacy changes is the fact that there are now so many different ways

for a profile to be discovered on the site. For example, one’s profile might be seen through a

tagged photo, group comments or via the new Graph Search feature. When the ‘Who can look

up your timeline’ feature was introduced, a name-search was the only way to find someone’s

profile. With the modernization of the site, this feature is all but obsolete.”); Matt McKeon,

The Evolution of Privacy on Facebook, M

ATT

EON

COM

(April 2010), http://mattmckeon

.com/facebook-privacy/ (“Facebook’s classification system for personal data has changed sig-

nificantly over the years” and “Facebook hasn’t always managed its users’ data well. In the

beginning, it restricted the visibility of a user’s personal information to just their friends and

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private information on Facebook has shifted repeatedly, with specific

types and pieces of information changing from private to public and back

to private again. The expectation that lawyers will keep up with constant

policy changes for dozens if not hundreds of different websites is unreal-

istic and unreasonably burdensome.

The “gray areas” of social media websites create yet another prob-

lem for lawyers trying to identify the line between public and private

social media information. Such “gray areas” include methods of acces-

sing information without requesting permission from the subject of the

investigation or that do not result in a notification to the subject, but that

do require the investigating lawyer to take some active steps to obtain the

information.

For example, on Facebook, users can join “groups”—

pages created within the site that are based around a particular interest,

topic, affiliation, or association. By joining the same groups as the re-

search target, an investigating lawyer may be able to view postings made

by the target on the group pages, and learn about the target’s interactions

and relationships with other members of the groups. To join these

groups, the lawyer normally would not need to request permission from

the target nor would a notification be sent to the target. The target

would, however, be able to see that the lawyer was a member of the

group by browsing the group’s list of members. An investigating lawyer

could also gather information about a target by friending the target’s

friends and family. In so doing, the lawyer would be able to see any

postings made by the target on the walls of these friends and family, and

see any photos of, or comments to, the target they posted. Again, the

lawyer would not need the permission of the target, and the target would

not receive any personal notification, though the target would be able to

see from any friend or family member’s pages that the lawyer had

friended them. Such information is neither wholly public, because the

lawyer must take action to gain access to it, nor wholly private as to the

target of the research, because the target does not control access to it.

The New York State Bar Association guidelines on social media, which

most directly address methods such as “friend of a friend” network re-

search, consider these methods to be gray areas: the guidelines essen-

their ‘network’ (college or school). Over the past couple of years, the default privacy settings

for a Facebook user’s personal information have become more and more permissive. They’ve

also changed how your personal information is classified several times, sometimes in a manner

that has been confusing for their users.”); Kurt Opsahl, Facebook’s Eroding Privacy Policy: A

Timeline, E

LECTRONIC

RONTIER

OUNDATION

(Apr. 28, 2010), https://www.eff.org/deeplinks/

2010/04/facebook-timeline (“Since its incorporation . . . Facebook has undergone a remarkable

transformation. When it started, it was a private space for communication with a group of

your choice. Soon, it transformed into a platform where much of your information is public by

default. Today, it has become a platform where you have no choice but to make certain infor-

mation public . . . .”).

See Gardner, supra note 73; see also McKeon, supra note 73.

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tially just urge caution and expressly note that—even in the stricter juror

context—ethics opinions “have not directly addressed” non-deceptive

viewing of putatively private social media information through alumni

groups.

Overall, the existence of such “gray areas” reveals the fiction

of a clear and easy line between public and private social media informa-

tion and the impracticality of directing lawyers to conform their conduct

along it.

Questions surrounding the timing of requests for information also

confound the simple labeling of social media information as either public

or private. Several bar opinions have determined that it is impermissible

to seek social media information via a third party, i.e., a lawyer cannot

ask an apparently neutral third party to friend the target on the lawyer’s

behalf as a way to avoid the alleged “communication” of a direct friend

request.

Practitioners seem to conclude that by strictly adhering to the

public-private rule, they will avoid any potential ethical problems involv-

ing third parties. It is unclear, however, what ethical implications arise

from requesting information from a third party who is already connected

to the research target before the lawyer is aware of or involved in the

litigation. For example, the lawyer could ask a third party who is

Facebook friends with the target to provide copies of the target’s profile

and all of their postings, or the lawyer could ask a third party who fol-

lows the target on Twitter to provide copies of all of the target’s tweets.

This information can hardly be considered “public,” since access to it is

restricted to the target’s friends or followers. Neither is this information

clearly “private” (as vaguely defined in bar opinions and practitioner

publications) since the lawyer has not contacted the target to obtain it and

the target has chosen to share it with the third party.

This scenario

demonstrates the difficulty of definitively labeling social media informa-

tion as either public or private because the nature of the information may

change as it is transferred from user to user. Further, this scenario high-

lights the confusion inherent in the public-private rule that results in

overbroad restrictions on lawyers seeking informal discovery of social

OMMERCIAL

& F

. L

ITIG

. S

ECTION

, N.Y. S

TATE

’

, supra note 44, at 10,

15–16.

In addition, commercial data aggregation services that “crawl” the web and cull infor-

mation from an array of databases and sources, including social media sites, in order to gener-

ate reports about persons and companies are now widely available, further blurring the line

between public and private social media information. See Lori Andrews, Facebook Is Using

You, N.Y. T

IMES

, Feb. 4, 2012, http://www.nytimes.com/2012/02/05/opinion/sunday/face

book-is-using-you.html.

See, e.g., Phila. Bar Ass’n Prof’l Guidance Comm., supra note 11; N.Y. State Bar

Ass’n Comm. on Prof’l Ethics, supra note 18; see also C

OMMERCIAL

& F

. L

ITIG

. S

ECTION

N.Y. S

TATE

’

, supra note 44.

See, e.g., P

RACTICING

NST

., supra note 2, § 9:6.2; N.Y. Cnty. Law Ass’n Comm.

on Prof’l Ethics, supra note 38; San Diego Cnty. Bar Legal Ethics Comm., supra note 1.

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media information. In other words, by limiting their research to public

information only, lawyers yield access to information that while not

strictly “public,” does not require the supposedly unethical “communica-

tion” with the research target that justifies the prohibition on so-called

“private” information, and therefore should be accessible to lawyers.

Finally, this examination of the many complexities and uncertainties

intrinsic to the prevailing view begs the question: even if one were will-

ing to parse out the specific distinction between public and private social

media information for every possible scenario, why does this public-pri-

vate divide matter and why should it define the limits of permissible

informal discovery of social media information? The bar opinions ap-

pear to be motivated in part by concern regarding the personal privacy of

social media users.

This concern is somewhat misplaced. The rules of

professional conduct are not concerned with enshrining a robust concep-

tion of third-party privacy. Rather, the overarching purpose of the rules

of professional conduct is to provide guidance to lawyers as to the re-

sponsible practice of law, to protect the interests of clients in the context

of engaging the services of a lawyer, and to provide standards for bar

discipline.

To these ends, each rule is crafted to either promote specific

actions or results, or to prohibit certain actions and avoid particular out-

comes. The rules at issue in the context of social media informal discov-

ery—the rules prohibiting communicating with represented parties,

misleading unrepresented persons to believe one is disinterested, and

committing fraud or deceit—are all focused on preventing specific out-

comes. An understanding of these purposes should guide any analysis of

these rules, as will be discussed in Part II.C below. These rules are

aimed at preventing abuse and trickery, not at protecting the privacy of

individuals, and therefore consideration of privacy as a factor is inappro-

priate when applying these rules to the social media informal discovery

context. Further, as numerous courts have recognized in the context of

formal discovery, the very purpose of social media websites is to share

information with others—rendering such information inherently not pri-

vate and concerns over protecting the privacy of social media users even

less relevant.

See, e.g., San Diego Cnty. Bar Legal Ethics Comm., supra note 1 (concluding that the

Committee’s interpretation of the rules of professional conduct “strikes the right balance be-

tween allowing unfettered access to what is public on the Internet about the parties with-

out . . . surreptitiously circumventing the privacy even of those who are unrepresented”).

See generally M

ODEL

ULES OF

ROF

’

ONDUCT

, Preamble & Scope (2012).

See, e.g., Romano, 907 N.Y.S.2d 650, 657 (App. Div. 2010) (compelling discovery of

plaintiff’s Facebook and MySpace accounts despite plaintiff’s privacy objections, noting that

sharing personal information with others is “the very nature and purpose of these social

networking sites” and that “in this environment, privacy is no longer grounded in reasonable

expectations, but rather in some theoretical protocol better known as wishful thinking”) (inter-

nal quotation marks omitted).

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B. Real-World Analogies: What Constitutes “Communication About

the Subject of the Representation”?

Central to the bar opinions’ reasoning is the idea that social media

activities are “communications” within the meaning of, and prohibited

by, the relevant rules of professional conduct.

In explaining this point,

the bar opinions offer various analogies intended to demonstrate that so-

cial media activities are such communications. Rather than confirm their

reasoning, however, these inapposite analogies undermine the bar opin-

ion analyses by often revealing a poor understanding of the nature of

social media. For example, the Philadelphia Bar opinion compares the

act of a third party using only truthful information to send a Facebook

friend request to a research target on behalf of a lawyer without disclos-

ing the relationship to the lawyer to an individual pretending to be a

utility worker in order to place a hidden video camera inside the target’s

home—an act which is clearly deceptive, and therefore prohibited.

This analogy is problematic for several reasons. First, the third party is

using only truthful information in their friend request.

Although the

third party is not disclosing their relationship with the lawyer to the re-

search target, the third party is not hiding nor lying about it either.

This

conduct seems fairly far removed from wearing a disguise and falsely

claiming to be a utility worker. Second, this analogy fails to recognize

the difference between installing a hidden camera in a person’s home in

order to capture information that the research target has no idea that they

are sharing, and making a friend request, which, if granted, allows the

third party access only to information that the target chooses to share

with friends. The former activity is spying and requires a passive target

who makes no decision to share information with the third party; the

latter activity is observation and requires a target who actively chooses to

grant access to the third party and others and actively chooses to post

comments, photos, videos, etc. Further, a hidden camera in the home

cannot distinguish between the different types of information it may cap-

ture. For example, a hidden camera in the living room may capture some

information the target intends to share with others (e.g., the target’s con-

versation during a party), or it may capture deeply private information

(i.e. things the target says or does when the target believes he or she is

completely alone). On Facebook, the third party will only have access to

See, e.g., Phila. Bar Ass’n Prof’l Guidance Comm., supra note 11 (describing the act

of a third party sending a Facebook friend request to a potential witness as a “communica-

tion”); San Diego Cnty. Bar Legal Ethics Comm., supra note 1 (concluding that a Facebook

friend request constitutes “an open-ended inquiry to a represented party in cyberspace seeking

information about the matter outside the presence of opposing counsel”).

Phila. Bar Ass’n Prof’l Guidance Comm., supra note 11.

See id.

Id.

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information that the target intends to share; it is not possible for the third

party to access truly private information without the target’s knowledge

or consent, simply because they are “friends.”

Third, this analogy

overlooks a critical distinction between the types of spaces involved.

The law recognizes the home as a sacred space, where one has the right

to be free from unwanted intrusions from outsiders.

There are few, if

any, spaces where privacy is more protected than the home.

Obvi-

ously, sharing information with and exposing one’s private activities to

others is not the primary purpose of having a home. In stark contrast, the

internet generally, and social networking sites specifically, are not con-

sidered sacred or particularly private spaces in any sense. Indeed, the

principal reason social networking sites exist is to connect and share in-

formation with large numbers of other people. To compare this virtual

public forum with a place as private as the home is far-fetched.

The San Diego bar opinion includes several similarly troubling

analogies. In attempting to support its conclusion that any social media

activity involving a represented party constitutes an impermissible com-

munication about the subject matter of the representation, the Committee

draws analogies to two recent federal cases.

In United States v. Sierra

Pacific Industries, an action brought by the government alleging corpo-

rate responsibility for a forest fire, counsel representing a corporation

attended a Forest Service event open to the public and questioned Forest

Service employees about fuel breaks, fire severity, and other related top-

ics.

The court rejected the counsel’s defense that he was exercising his

right to petition the government for redress of grievances, finding instead

that he was “attempting to obtain information for use in the litigation,”

and concluded that his conduct violated the rule prohibiting communica-

tion with represented parties about the subject matter of the representa-

tion.

The Ethics Committee points to this conclusion as evidence that

the lawyer’s purpose in sending the friend request is critical to the ethical

inquiry and because the lawyer “hopes” the friend request will lead to

information relevant to the litigation, such communication is “about the

subject of the representation” and therefore prohibited.

The Committee

likens the friend request to any other “open-ended [or] generic ques-

tion[ ]” asked during the course of litigation to “impel the other side to

Statement of Rights and Responsibilities, F

ACEBOOK

(April 12, 2014) https://www

.facebook.com/legal/terms.

See, e.g., Georgia v. Randolf, 547 U.S. 103, 123–24 (2006) (Stevens, J., concurring)

(finding a right “[a]t least since 1604” to exclude governmental officials and others from the

home when they do not have a valid warrant).

See id.

San Diego Cnty. Bar Legal Ethics Comm., supra note 1.

United States v. Sierra Pacific Indus., 759 F. Supp. 2d 1206, 1208 (E.D. Cal. 2010).

Id. at 1213–14.

San Diego Cnty. Bar Legal Ethics Comm., supra note 1.

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disclose information that is richly relevant to the matter.”

Both this

comparison and the analogy to Sierra Pacific are inapposite to the friend

request scenario. There is an obvious distinction between directing spe-

cific questions to the target, and requesting access to postings made at

the target’s own initiative. In Sierra Pacific, the Forest Service em-

ployee provided information that he would not have provided otherwise

due to the direct questions of the lawyer.

In the Facebook scenario, the

lawyer is asking only for access to information that has already been

posted by the target, and that will be posted regardless of whether the

lawyer has access.

This scenario is more comparable to the lawyer

signing up to attend the Forest Service event, but not speaking or asking

questions—activities that neither the Sierra Pacific court nor the Com-

mittee suggest are impermissible. If the lawyer posted questions or com-

ments on the target’s Facebook page, then Sierra Pacific might be a

suitable analogy. The comparison to other “open-ended” questions is

similarly problematic in that it involves asking a question that will elicit

information from the target that would not otherwise be provided. Con-

text is also important—asking any question “during litigation” (e.g., dur-

ing a meeting, deposition, or negotiation) is implicitly about the litigation

and is generally likely to elicit information particularly relevant to the

litigation. Social media websites, however, are general forums, where

individuals provide information on whatever topic they desire and the

nature of the information provided is either unaffected by the lawyer’s

access, or is less likely to be about the subject of the litigation because of

the lawyer’s access.

In the second case referenced by the San Diego Committee, Mid-

west Motor Sports v. Arctic Cat Sales, Inc., a lawyer sent a private inves-

tigator into the opposing party’s showroom to question and

surreptitiously record their employees talk about their sales volumes and

sales practices.

The court determined that the lawyer violated the ethi-

cal rule prohibiting ex parte communication with represented parties,

even though the investigator did not question the employees directly

about the litigation, because the questioning related to sales information

which may have been relevant to the issue of damages.

The Commit-

tee considers the lawyer’s conduct in this case to be essentially the same

as a lawyer attempting to collect information relevant to the litigation by

friending the opposing party and condemns both as ethically impermissi-

ble.

To bolster the point that the lawyer or her agent need not ask

Id.

Sierra Pacific Indus., 759 F. Supp. 2d at 1208.

San Diego Cnty. Bar Legal Ethics Comm., supra note 1.

Midwest Motor Sports v. Arctic Cat Sales, Inc., 347 F.3d 693, 695 (8th Cir. 2003).

See id. at 699.

See San Diego Cnty. Bar Legal Ethics Comm., supra note 1.

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directly about the litigation for the communication to be “about the sub-

ject of the representation,” the Committee argues that a defense lawyer

asking a plaintiff generally about recent activities during a deposition, in

order to obtain evidence relevant to whether that plaintiff failed to miti-

gate damages, is clearly asking about “the subject of the representa-

tion.”

Concluding that such questioning is “qualitatively no different

from an open-ended inquiry to a represented party in cyberspace seeking

information about the matter,” the Committee determines that the former

conduct is appropriate, whereas the lawyer’s conduct in Midwest Motor

Sports and in the Facebook scenario is not because it is outside the pres-

ence of opposing counsel and discovery procedures do not sanction it.

100

These comparisons fail for the same reasons that the Sierra Pacific anal-

ogy fails: (1) both Midwest Motor Sports and the hypothetical deposition

involve lawyers asking direct questions to obtain information that would

not otherwise have been provided—the Facebook scenario does not in-

volve asking this type of question; and (2) even general deposition ques-

tions (interactions that would not occur but for the litigation) are

implicitly about the subject of the litigation, there is no such implicit

connection in a Facebook friend request.

101

Further, the employees in

Midwest Motor Sports did not consent to being recorded and could not

reasonably have expected such conduct by the lawyer.

102

In contrast, a

target granting the friend request of a lawyer (or stranger) gives consent

and has full knowledge that the lawyer will be able to view and record all

of the information on their Facebook page.

103

These analogies also reveal a worrisome lack of familiarity with

social media. Some bar committees erroneously assume that requests for

access via social media websites can be simply translated into their “real

world” equivalents by imagining the requests as verbal communications

between individuals (i.e., the lawyer and the research target).

104

In at-

tempting to force social media interactions into preexisting categories of

communication, bar committees fail to consider that social media can

provide entirely novel and unique modes of sharing information that do

not lend themselves easily to “real world” translations.

105

To begin with,

social media users generate information with the primary purpose of

sharing this information in a non-specific way with groups, not individu-

Id.

100

Id.

101

See id.

102

See Midwest Motor Sports, 347 F.3d at 695.

103

See San Diego Cnty. Bar Legal Ethics Comm., supra note 1.

104

See id.

105

See id.

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als.

106

This is unlike any scenario involving “real world” oral or written

communications, which generally require the speaker or writer to con-

sciously direct his words to an individual or a selected group of individu-

als.

107

Although social media users may restrict access to their websites

to a certain group of individuals, this is not usually a choice users make

with every post, comment, or tweet.

108

Instead, social media users essen-

tially permit others to join their “group” (e.g., as a Facebook friend or a

follower on Twitter), and then, in a completely separate act, choose to

broadcast information to that group as a whole.

109

Therefore, the lawyer is not engaging in an interactive, individual-

ized, or dialogue-based communication with the target in seeking access

to this information. Rather, the lawyer is requesting permission to join

the membership-based public forum in which the target chooses to share

information with a group of individuals. Consequently, this type of so-

cial media activity is not as much a verbal communication as it is more

analogous to conduct such as signing up for a subscription-based news-

letter or buying tickets for a speaking event. In these latter scenarios, the

lawyer requests access to a limited forum in which the information at

issue is promulgated regardless of the lawyer’s action. If these activities

are ethically permissible—and there is no reason to think they are

not

110

—then the analogous social media activity should be similarly

permissible.

Finally, to the extent such social media activities can be considered

verbal in nature, they are akin to introductions and not general requests

for information. Notification messages and access requests simply in-

form the research target that the lawyer is, or would like to be in, the

target’s social media space and be able to observe their conduct (e.g.,

posts, tweets, etc.).

111

In substance, this is no different from a lawyer

introducing him or herself to a target and saying nothing further (which

is clearly permissible) and is far from a general request for informa-

tion.

112

This critical distinction arises, again, from the fact that targets

produce and publish social media information on their own initiative re-

gardless of the lawyer’s access. In the real-world scenarios envisioned

by bar committees, no matter how general the question, the target’s reply

106

See, e.g., How Sharing Works, F

ACEBOOK

, https://www.facebook.com/about/sharing

(last visited Sept. 20, 2014); Learn the Basics, T

WITTER

, https://discover.twitter.com/learn-

more (last visited Sept. 20, 2014); Who Can See Your Posts, G

OOGLE

+, https://support.google

.com/plus/answer/1053543?hl=en (last visited Sept. 20, 2014).

107

See San Diego Cnty. Bar Legal Ethics Comm., supra note 1.

108

See, e.g., How Sharing Works, supra note 106; Who can See Your Posts, supra note

106.

109

Id.

110

See San Diego Cnty. Bar Legal Ethics Comm., supra note 1.

111

Id.

112

Id.

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(i.e., the production of the information) is prompted by the lawyer’s

question.

113

By prohibiting these social media introductions, bar com-

mittees expand the ban on ex parte communications to cover all commu-

nications, not just those about the subject of the representation, which is

clearly outside the scope of the rule.

114

Further, applying such an over-

broad restriction to informal discovery of social media information is

unreasonable and impractical considering the growing presence and im-

portance of social media in everyday life.

115

C. Applying the Rules: What Are the Underlying Purposes of the

Relevant Rules of Professional Conduct?

The various bar opinions that conclude that informal discovery of

non-public social media information violates the rules of professional

conduct

116

are generally based on the bar committees’ application of

three particular rules: (1) the rule prohibiting communication with a rep-

resented party about the subject matter of the representation outside the

presence of that party’s counsel; (2) the rule prohibiting lawyers from

stating or implying that they are disinterested in the subject matter to an

unrepresented person; and (3) the rule prohibiting a lawyer from engag-

ing in conduct involving dishonesty, fraud, deceit, or misrepresenta-

tion.

117

As discussed extensively in the preceding sections, these bar

opinions erroneously limit their analyses of these rules to the definitional

meaning of specific words within them, such as “communication” or

“deception,” by way of inapposite “real world” analogies.

118

As a result,

the prevailing view that the rules of professional conduct limit informal

discovery of social media information to that which is publicly available

is unnecessarily and impracticably restrictive. A close examination of

the underlying purposes of each of the three rules and careful considera-

tion of whether the social media activities at issue offend these purposes

reveal that, in fact, the existing rules of professional conduct allow for

broad and extensive informal discovery of social media information, and

prohibit only the use of explicit fraud and misrepresentation in seeking

social media information (e.g., creating fake identities or profiles) and

direct questioning of targets via social media.

113

See, e.g., Phila. Bar Ass’n Prof’l Guidance Comm., supra note 11, at 3; San Diego

Cnty. Bar Legal Ethics Comm., supra note 1.

114

See San Diego Cnty. Bar Legal Ethics Comm., supra note 1.

115

See, e.g., 10 Years of Social Media Mania & The 2014 Statistics, D

UBAI

HRONICLE

(March 20, 2014), http://www.dubaichronicle.com/2014/03/20/10-year-social-media-mania-

2014-statistics/.

116

See, e.g., Phila. Bar Ass’n Prof’l Guidance Comm., supra note 11, at 3; San Diego

Cnty. Bar Legal Ethics Comm., supra note 1.

117

See supra Part II.A.

118

See supra Part II.A–B.

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1. ABA Model Rule of Professional Conduct 4.2

Rule 4.2 of the ABA Model Rules of Professional Conduct

119

states

as follows:

In representing a client, a lawyer shall not communicate

about the subject of the representation with a person the

lawyer knows to be represented by another lawyer in the

matter, unless the lawyer has the consent of the other

lawyer or is authorized to do so by law or a court

order.

120

Rule 4.2 serves three primary functions: (1) to protect represented per-

sons from “overreaching by other lawyers who are participating in the

matter;”

121

(2) to prevent other lawyers from interfering with and ad-

versely affecting the lawyer-client relationship between represented per-

sons and their chosen counsel;

122

and (3) to reduce the likelihood that

represented persons “will disclose privileged or other information that

might harm their interests.”

123

Rule 4.2 “presumes generally” that repre-

sented persons are “not legally sophisticated and should not be put by an

opposing lawyer in the position of making uninformed decisions or state-

ments or inadvertent disclosures” that are harmful to their interests.

124

short, the purpose of Rule 4.2 is “to prevent a skilled advocate from

taking advantage of a non-lawyer.”

125

In examining Rule 4.2, courts generally have espoused these ratio-

nales.

126

For example, one New York federal court describes the policies

behind the rule as preventing “unprincipled attorneys” from “exploiting

the disparity in legal skills between attorney and lay people;” “circum-

119

For purposes of this argument, this Article will analyze the rules of professional con-

duct as articulated in the ABA Model Rules of Professional Conduct. Although the bar opin-

ions discussed in Part II and referred to in Part III apply the rules of professional conduct of

their respective states, these rules are generally modeled on and are often identical to the ABA

Model Rules. As of this writing, all fifty states, with the exception of California, the District

of Columbia, and the U.S. Virgin Islands have adopted the ABA Model Rules of Professional

Conduct in some form. Model Rules of Professional Conduct, A

. B

’

, http://www

.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional

_conduct.html (last visted Aug. 22, 2014).

120

ODEL

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’

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R. 4.2 (2013).

121

Id. at cmt. 1.

122

Id.; see also ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 95-396

(1995).

123

ABA Comm. on Ethics & Prof’l Responsibility, supra note 122; see also, M

ODEL

ULES OF

ROF

’

ONDUCT

R. 4.2 cmt. 1 (2013).

124

ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 06-443 (2006).

125

Id.

126

See C

FOR

ROF

’

ESPONSIBILITY

, A

. B

’

, A

NNOTATED

ODEL

ULES OF

ROF

’

ONDUCT

§ 4.2 , at 406–407 (Bennett et al. eds., 7th ed. 2011); see, e.g., Polycast

Tech. Corp. v. Uniroyal, Inc., 129 F.R.D. 621, 625 (S.D.N.Y. 1990), Jenkins v. Wal-Mart

Stores, Inc., 956 F. Supp. 695, 696 (W.D. La. 1997).

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venting opposing counsel to obtain unwise statements from the adversary

party;” and “driving a wedge between the opposing attorney and that

attorney’s client,” in addition to protecting against the “inadvertent dis-

closure of privileged information.”

127

Similarly, a Louisiana federal

court explains that the “dual purposes behind Rule 4.2 are to prevent

disclosure of attorney/client communications, and to protect the party

from ‘liability-creating’ statements elicited by a skilled opposing

attorney.”

128

Banning all communications between lawyers and represented per-

sons is explicitly not the objective of Rule 4.2. The scope of Rule 4.2 is

limited to communications related to the subject matter of the representa-

tion, and the rule therefore contemplates a matter that is “defined and

specific, such that the communicating lawyer can be placed on notice of

the subject of the representation.”

129

Consequently, communications

concerning matters outside this “defined and specific” representation are

perfectly permissible.

130

Considering these purposes, it is apparent that, under the prevailing

view, the social media activities at issue do not run afoul of Rule 4.2. To

be clear, the social media activities referred to include requesting permis-

sion to access the research target’s social media website using the law-

yer’s real identity and profile (e.g., a Facebook friend request) and

automated notifications to the research target that the social media web-

site is being viewed (e.g., a Twitter notification), but do not include any

further communications (e.g., posting questions or comments to the tar-

get). First, Rule 4.2 is largely focused on preventing lawyers from “elic-

iting” information from represented persons.

131

In the social media

context, no information is being “elicited.” Rather, the lawyer is merely

asking to view information that the represented person chooses to post at

her own initiative for her audience to view, regardless of the lawyer’s

ability to access this information. Such passive observation is not the

type of conduct the rule is aimed at preventing; only active engagement

with the represented person triggers the operation of Rule 4.2.

132

Second, the request for access or automatic notification is the only

“communication” being made by the lawyer in this scenario—but such

general contacts can hardly be considered to be on the subject of a “de-

127

Polycast, 129 F.R.D.at 625.

128

Jenkins, 956 F. Supp. at 696.

129

ABA Comm. on Prof’l Ethics & Responsibility, Formal Op. 95-396 (1995).

130

See M

ODEL RULES OF

ROF

’

ONDUCT

R.4.2 cmt. 4 (2013); see also ABA Comm. on

Prof’l Ethics & Responsibility, Formal Op. 95-396 (1995), (“[W]here the representation is

general . . . the subject matter lacks sufficient specificity to trigger the operation of Rule 4.2.”).

131

See C

FOR

ROF

’

ESPONSIBILITY

, A

. B

’

, supra note 126, at 406–407,

409.

132

See id. at 409.

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fined and specific” representation.

133

This conclusion is supported by

the ABA’s own analysis of this portion of the rule:

For example, suppose a lawyer represents Defendant on

a charge involving crime A. Under Rule 4.2, another

lawyer may not, pursuant to a representation, either as

prosecutor or as counsel for a co-defendant involving

crime A, communicate with Defendant about that crime

without leave of Defendant’s lawyer. However, if the

communicating lawyer represents a client with respect to

a separate and distinct crime B and wishes to contact

Defendant regarding that crime, the representation by

counsel in crime A does not bar communications about

crime B. Similarly, the fact that Defendant had been in-

dicted on crime A would not prevent the prosecutor from

communicating with Defendant . . . regarding crime

134

Surely if this type of dialogue, which inevitably will include basic ques-

tions about the represented person’s background, is considered to be

“concerning matters outside the subject of the representation,” then the

social media activities at issue must also be similarly permissible.

Third, in the social media context, there is no real risk that the law-

yer’s legal skills and qualifications will give him or her an advantage

over the represented layperson. Because the lawyer is, at most, trigger-

ing an automatically generated request for access or notification mes-

sage, the lawyer’s skill as an advocate and legal expertise simply do not

come into play.

Fourth, unlike in a “real-world” interaction (face-to-face or over the

phone) or personalized e-mail exchanges, the represented person is no

more likely to disclose information via their social media accounts due to

the social media connection by the lawyer. If anything, the represented

person is less likely to disclose information, because of the lawyer’s abil-

ity to access their social media sites. In the “real-world” scenarios con-

templated by the rule, there are concerns that being directly confronted

with an opposing lawyer may lead to confusion and intimidation that

would result in the inadvertent disclosure of information by the repre-

sented person—in other words, the represented person might disclose in-

formation that they would not otherwise have chosen to share but for the

questions of the lawyer. In the unique context of social media, where the

lawyer merely has access to the represented person’s sites but takes no

steps to further engage in communication with the represented person,

133

See ABA Comm. on Prof’l Ethics & Responsibility, Formal Op. 95-396 (1995).

134

Id.

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the only information disclosed is that which the represented person vol-

unteers to share in this membership-based public forum—information

that would have been shared regardless of the lawyer’s ability to view

it.

135

Fifth, the social media activities at issue do not interfere with the

represented person’s relationship with their counsel. Social media users,

including represented persons, decide what information to post and share

on their websites and when to share it. A lawyer’s request for access or

notification message does not prompt the sharing of information, but

rather simply informs the represented person that the lawyer wishes to

view this information. Consequently, if in sharing information via social

media, a represented person chooses to waive lawyer-client privilege,

disregard advice of counsel, or make a statement without the benefit of

their counsel’s advice—that decision is made irrespective of the lawyer’s

social media activities. The lawyer’s activities, therefore, cannot be con-

sidered a threat to the privilege or to the lawyer-client relationship. Fur-

ther, once information is posted on the Internet, privilege is waived and

the lawyer may properly obtain the information in any way outside of

direct access (e.g., formal discovery, requesting a copy from a third party

who already has access). Accordingly, the use of social media by the

represented person is the real threat to the lawyer-client relationship and

privilege, not use by opposing lawyers.

In sum, the purposes of Rule 4.2 are not offended by the lawyer’s

social media activities, because such activities do not seek to “elicit”

information from a represented person, do not interfere with the lawyer-

client relationship, and do not increase the likelihood that a represented

person will disclose privileged or otherwise harmful information.

136

Such activities, therefore, fall within the realm of permissible ex parte

communication that is not prohibited by Rule 4.2, as long as the lawyer

135

The ABA concludes that the prohibition of Rule 4.2 still applies even where the im-

permissible communication is initiated by the represented person. See ABA Comm. on Prof’l

Ethics & Responsibility, supra note 123. Further, several courts have held that lawyers vio-

lated Rule 4.2 where the represented person initiated contact with the lawyer and the lawyer

mostly just “listened to and took notes on the [represented person’s] statement.” See, e.g., In

re Howes, 940 P.2d 159, 166 (N.M. 1997); People v. Green, 274 N.W.2d 448 (Mich. 1979);

Suarez v. State, 481 So.2d 1201 (Fla. 1985). However, these cases are distinguishable from

the social media contacts at issue because in each case, the lawyer engaged in a personal and

direct conversation with the represented person. See In re Howes, 940 P.2d at 163; Green, 274

N.W.2d at 451; Suarez, 481 So.2d at 1205. Even if the lawyer did not “overreach” by asking

numerous questions, the “influence of the prosecutor’s presence is immeasurable.” Green, 274

N.W.2d at 456. In the social media context, the lawyer has no “presence” with which to

intimidate or otherwise manipulate the represented person—the lawyer is just one member of a

broad audience. Further, by posting social media information, the represented person is not

“initiating communication” directly with the lawyer but rather making statements to a group of

persons that includes the lawyer.

136

See M

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R. 4.2 (2013).

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refrains from going beyond simple requests for access or notifications,

and is not actively engaging in a direct and personalized dialogue with

the represented person.

137

2. ABA Model Rule of Professional Conduct 4.3

Rule 4.3 of the ABA Model Rules of Professional Conduct states in

relevant part as follows:

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 shall make reasonable efforts

to correct the misunderstanding.

138

The purpose of this portion of Rule 4.3 is fairly straightforward: to

protect unrepresented persons from disclosing information that may be

harmful to their interests because they have been misled by a lawyer,

with an interest in a matter, to believe that the lawyer is disinterested in

the matter.

139

This scenario is of particular concern because an unrepre-

sented person, “particularly one not experienced in dealing with legal

matters, might assume that a lawyer is disinterested in loyalties or is a

disinterested authority on the law.”

140

Further, the unrepresented person

may believe that they can rely on the lawyer, as a neutral expert on the

law, to provide them with legal advice and to protect their interests in the

matter.

These concerns, however, are not implicated by the social media

activities at issue here. First, the content of automatically generated re-

quests for access and notification messages do not include any informa-

tion specific to the lawyer, the unrepresented person, or the matter of

particular interest to the lawyer. These requests and messages are uni-

formly produced by social media websites for all users who seek access

to another user’s site. There is no substantive interaction between the

lawyer and the unrepresented person—the lawyer is not offering any in-

formation about him or herself to the unrepresented person. Conse-

quently, in no way can the lawyer “state” or “imply” that he or she is

disinterested in the matter; to “state” or “imply” requires the lawyer to

make some sort of personalized statement.

141

In the social media con-

text, the lawyer is not making a statement, but rather undertaking an ac-

tion (seeking access to the unrepresented person’s social media site).

137

Id. at cmt. 4.

138

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R. 4.3 (2013).

139

Id.

140

Id. at cmt. 1.

141

See M

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’

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R. 4.3 (2013).

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This interpretation of Rule 4.3 is borne out by case law. For example,

one Louisiana federal court recently held that investigators who failed to

identify themselves as working for an attorney when interviewing puta-

tive class members did not violate Rule 4.3 because they did not state or

imply that they were disinterested, made no misrepresentations, and “did

not deliberately foster any impression” that they were on the interview-

ees side.

142

In contrast, an Illinois federal court concluded that plaintiffs’

attorneys violated Rule 4.3 by sending questionnaires to unrepresented

employees of defendant, where the cover letter accompanying the ques-

tionnaire not only failed to state that the questionnaire was prepared for

and distributed on behalf of the attorneys, but also contained misleading

information designed to give the impression that the questionnaire was

“neutral and unbiased.”

143

Specifically, the letter described the question-

naire as an “independent survey” (implying there was no underlying mo-

tive in obtaining this information); stated that the employees’ names

were provided by a government agency (implying that the agency partici-

pated in or at least endorsed the survey); and explained that the questions

were focused on two specific topics in order “to keep questions to an

absolute minimum” (covering up the fact that these topics were the focus

of the litigation).

144

As these cases demonstrate, in order to violate Rule

4.3 the lawyer must affirmatively offer information to the unrepresented

person that causes them to believe that he or she is disinterested in the

matter. The social media activities at issue pose no risk of this.

Second, as discussed extensively in the preceding section, the law-

yer is not prompting the unrepresented person to share any information at

all, let alone information specific to the matter or against the interests of

the unrepresented person in that matter. Instead, the lawyer is simply

seeking to view information the unrepresented person decides to post on

whatever topic they choose—information that the unrepresented person

would share regardless of the lawyer’s access. Consequently, there is no

need to fear that such social media activities could cause unrepresented

people to disclose information harmful to their interests.

Third, similar to Rule 4.2, Rule 4.3 is motivated in part by a concern

that a skilled attorney will take advantage of an unrepresented layperson.

Again, because the sole “communication” between the lawyer and the

unrepresented person is an automatically generated request for access or

notification message, there is no danger that the lawyer’s legal skills and

qualifications will give the lawyer an advantage—practically or psycho-

logically—over the unrepresented layperson. The lawyer’s legal exper-

142

In re Katrina Canal Breaches Consol. Litig., No. 05-4182 “K” (2), 2008 WL 2066999,

*6 (E.D. La. May 14, 2008) (internal quotation marks omitted).

143

In re Air Crash Disaster, 909 F. Supp. 1116, 1123 (N.D. Ill. 1995).

144

Id.

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tise is immaterial and in no way influences the unrepresented person’s

decisions about what information to share and when to share it.

Fourth, since the lawyer is not communicating with the unrepre-

sented person beyond the initial request or notification, it is impossible

for the unrepresented person to believe that the lawyer is providing him

with legal advice or advising him of his interests.

Consequently, lawyers seeking informal discovery of social media

information do not violate Rule 4.3 as long as they limit their social

media activities to initial requests for access or notification messages and

take no affirmative action to mislead the unrepresented person into be-

lieving that they have no interest in the particular matter. Such activities

honor the purposes of Rule 4.3 in that they do not “state” or “imply” that

the lawyer is disinterested in the particular matter; do not instigate the

sharing of information by the unrepresented person (contrary to their in-

terests or otherwise); do not provide any opportunity for the lawyer to

use his legal expertise to gain an advantage over the unrepresented per-

son; and create no risk that the unrepresented person will mistakenly be-

lieve the lawyer is advising her of or otherwise protecting her interests in

the matter.

145

3. ABA Model Rule of Professional Conduct 8.4

Rule 8.4 of the ABA Model Rules of Professional Conduct states in

relevant part: “It is professional misconduct for a lawyer to . . . (c) en-

gage in conduct involving dishonesty, fraud, deceit or misrepresenta-

tion.”

146

To a certain extent, the purpose of this rule is self-evident—to

prevent lawyers from engaging in conduct involving dishonesty, fraud,

deceit or misrepresentation. Rule 1.0(d) defines “fraud” as “conduct that

is fraudulent under the substantive or procedural law of the applicable

jurisdiction and has a purpose to deceive.”

147

The Model Rules, how-

ever, do not provide specific definitions for “dishonesty,” “deceit,” or

“misrepresentation,” and authorities disagree about the distinctions be-

tween these terms and whether any or all of these terms require intent.

148

For example, one state’s highest court has determined that fraud and de-

ceit require “a false representation to another, with the intent that the

other act upon the false representation to his or her damage” and that

dishonesty involves “conduct indicating a disposition to lie, cheat or de-

fraud,” but that misrepresentation “need not be driven by an improper

145

See M

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R. 4.3 (2013).

146

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R. 8.4(c) (2013).

147

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’

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R. 1.0(d) (2013); see also C

FOR

ROF

’

E-

SPONSIBILITY

, A

. B

. A

’

, supra note 126, § 8.4(c), at 613.

148

See C

FOR

ROF

’

ESPONSIBILITY

, A

. B

’

, supra note 126, § 8.4(c), at

613–14.

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motive. . . . [nor] does it require an intent to deceive or commit fraud.”

149

In contrast, another court has concluded that “[dishonesty] includes con-

duct evincing a lack of honesty, probity, or integrity in principle,” but

does not necessarily involve conduct legally characterized as fraud, de-

ceit, or misrepresentation.

150

At minimum, however, it appears that

courts finding a violation of Rule 8.4(c) generally require some sort of

culpable mental state, whether intent, purpose, or recklessness.

151

Regardless of whether there is a culpable mental state requirement

for Rule 8.4(c) violations, social media activities where the lawyer uses

her true identity and profile to connect with a research target do not vio-

late this rule. First, if the lawyer is able to gain access to the target’s

social media information using the lawyer’s identity, there is no need

(and no intent) to engage in affirmative dishonesty, deceit, fraud, or mis-

representation. Second, provided the lawyer takes no steps to hide her

interest in the particular matter and connection to the client, failing to

explicitly disclose this information when sending an automated request

for access or notification message similarly does not constitute dishon-

esty, deceit, fraud, or misrepresentation. This point is most directly sup-

ported by the Philadelphia and New York City bar opinions. The former

explicitly holds that although seeking access to social media information

through a third party is a violation of Rule 8.4(c), the lawyer could seek

such access herself, and that “would not be deceptive and would of

course be permissible.”

152

Further support of this interpretation is estab-

lished by the fact that all but one of the remaining bar opinions do not

even invoke Rule 8.4(c) as a justification for their constraints on social

media usage, indicating that they consider this rule inapplicable in this

scenario.

153

The San Diego Bar opinion alone concludes that failure to

disclose the lawyer’s interest in the matter constitutes a violation of Rule

8.4(c) because the “only way to gain access [to the target’s social media

information is] . . . for the attorney to exploit a party’s unfamiliarity with

the attorney’s identity and therefore his adversarial relationship with the

149

In re Obert, 89 P.3d 1173, 1177–78 (Or. 2004) (internal quotation marks omitted).

Several Oregon Supreme Court cases, including In re Obert, further note that misrepresenta-

tion can be “simply an omission of a fact that is knowing, false, and material in the sense that,

had it been disclosed, the omitted fact would or could have influenced significantly the deci-

sion-making process.” Id. at 1178, see also In re Eadie, 36 P.3d 468, 476, 333 Or. 42, 53 (Or.

2001); In re Gatti, 8 P.3d 966, 973, 330 Or. 517, 527–28 (Or. 2000). As far as can be deter-

mined, no other state embraces such a stringent standard for this rule—holding lawyers ac-

countable for omissions of material fact absent a duty (e.g., to a client) or any intention to

mislead.

150

In re Scanio, 919 A.2d 1137, 1143 (D.C. 2007) (internal quotation marks omitted).

151

See C

FOR

ROF

’

ESPONSIBILITY

, A

. B

’

, supra note 126, § 8.4(c), at

614 (collecting cases).

152

Phila. Bar Ass’n Prof’l Guidance Comm., supra note 11.

153

Compare N.Y.C. Bar Ass’n, supra note 23, and Phila. Bar Ass’n Prof’l Guidance

Comm., supra note 11, with San Diego Cnty. Bar Legal Ethics Comm., supra note 1.

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recipient.”

154

Critically, however, this conclusion fails to take into ac-

count the fact that social media information is information that is posted

to the Internet. Consequently, the attorney has numerous ways to access

this information, beyond seeking direct access (e.g., “friending” someone

already connected to the target and asking them to provide a copy of all

posts). Even more importantly, the target knows (or should know) that

any information posted could conceivably be re-posted by others, end up

anywhere on the Internet, and ultimately be seen by anyone. It is there-

fore simply inaccurate to paint basic social media activities as masterful

deceptions employed to gain access to secret information.

An ABA opinion examining Rule 8.4(c) in an entirely different con-

text lends further support to the contention that failure to disclose interest

in a particular matter when engaging in these basic social media activi-

ties does not constitute dishonesty, deceit, fraud, or misrepresentation.

155

In this opinion, the ABA considers the question of whether a lawyer who

provides legal assistance to a pro se litigant and helps the litigant prepare

written submissions violates Rule 8.4(c), if the lawyer does not disclose

or ensure the disclosure of the nature and extent of the assistance pro-

vided.

156

The ABA ultimately determines that such conduct does not

violate Rule 8.4(c), explaining:

[W]e do not believe that nondisclosure of the fact of le-

gal assistance is dishonest so as to be prohibited by Rule

8.4(c). Whether it is dishonest for the lawyer to provide

undisclosed assistance to a pro se litigant turns on

whether the court would be misled by failure to disclose

such assistance. The lawyer is making no statement at

all to the forum regarding the nature or scope of the rep-

resentation . . . . Absent an affirmative statement by the

client, that can be attributed to the lawyer, that the docu-

ments were prepared without legal assistance, the lawyer

has not been dishonest within the meaning of Rule

8.4(c).

157

Although the scenario at issue in this opinion is far removed from

the world of social media, the ABA’s analysis sheds light on how Rule

8.4(c) is applied more broadly.

158

First, whether a failure to disclose

information is considered “dishonest” within the meaning of Rule 8.4(c)

depends on whether the other person or entity involved would be “mis-

154

San Diego Cnty. Bar Legal Ethics Comm., supra note 1.

155

ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 07-446 (2007).

156

Id.

157

Id.

158

Id.

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led” by the failure to disclose.

159

Second, and most critically, a failure to

disclose alone is not enough to constitute a Rule 8.4(c) violation—an

“affirmative statement” that misleads the other party into believing

something that is not true is also required.

160

In the social media context,

the lawyer’s failure to disclose the lawyer’s interest in no way misleads

the research target. The request for access or notification message from

the lawyer contains the exact same information as those sent by any other

social media user, and the target has no less reason to suspect the lawyer

of having adverse interests than any other user. Further, these automati-

cally generated messages contain no affirmative statements designed to

lure the target into granting access or believing that the lawyer does not

have adverse interests.

In sum, there is simply no way to construe the basic social media

activities at issue here as “conduct involving dishonesty, fraud, deceit or

misrepresentation.”

161

Where the lawyer seeking social media informa-

tion uses his or her true identity and real social media profiles in requests

for access and notification messages and takes no steps to hide his or her

interests in a particular matter, there is no Rule 8.4(c) violation.

162

ONCLUSION

Contrary to the prevailing view according to state and local bars and

practitioners, a close examination of the most relevant rules of profes-

sional conduct suggests that informal discovery of social media informa-

tion is broadly permissible, limited only by prohibitions on outright fraud

and deception. As long as lawyers refrain from contact beyond the initial

requests for access and notification messages and rely on only their true

identities and real social media profiles, it appears that informal discov-

ery of social media information is well within the bounds of these ethical

rules.

Despite the strength of this argument, however, in light of the fairly

restrictive opinions issued by state and local bars thus far, practicing law-

yers have taken a conservative approach to this type of informal discov-

ery rather than risk the violation of ethical rules. Such caution is

particularly understandable and advisable, considering that the few ex-

isting opinions do not provide consistent rulings and there is a serious

lack of clarity regarding the limits of permissible conduct in this area.

The unfortunate result of this scant and confusing guidance has been a

severe chilling effect on the use of this critical resource by lawyers—an

159

Id.

160

Id.

161

See M

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R. 8.4(c) (2013).

162

Id.

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outcome that is increasingly impracticable as the prevalence and impor-

tance of social media in our society and culture continues to grow.

We, therefore, urge the ABA, state bars, and other committees to

undertake a careful and informed study of the nature and functionality of

social media as a new and distinct method of producing and sharing in-

formation and, further, to clarify that the informal discovery of social

media is broadly permissible under the existing rules of professional con-

duct. With fuller knowledge and understanding of social media, the

ABA and state bars will be better able to balance the prolificacy, perva-

siveness, and usefulness of this type of information against the purposes

and protections established by the rules of professional conduct. This

will allow them to provide instructive guidance that can reverse the chil-

ling effect the handful of existing opinions has created. Further, by ex-

plicitly addressing the complex nature of social media information and

expressly permitting broad informal discovery of this information, such

guidance would provide much-needed clarity to lawyers now and in the

future, as social media platforms and applications continue to rapidly

evolve and grow.