At its last quarterly meeting, the State Bar Ethics Committee decided that competent representation includes advice about a client’s social media postings to the extent they are relevant and material to the representation. Proposed 2014 FEO 5. The opinion goes on to say that a lawyer may have a duty to advise a client about social media and its possible effect on litigation both before and after a lawsuit is filed, may advise the client to change privacy settings on social media sites, and may only instruct a client to remove postings so long as it does not amount to spoliation or otherwise violate the law.
If removing postings does not constitute spoliation and is not otherwise illegal or a violation of a court order, the lawyer may instruct the client to remove existing postings on social media. If the lawyer advises the client to take down postings on social media, where there is a potential that destruction of the postings would constitute spoliation, the lawyer must also advise the client to preserve the postings by printing the material, or saving the material to a memory stick, compact disc, DVD, or other technology, including web-based technology, used to save documents, audio, and video. The lawyer may also take possession of the material for purposes of preserving the same. Advice should be given before and after the law suit is filed.
Proposed 2014 FEO 5. This result is intuitive as e-discovery is commonplace these days. But there are other social media-type discovery questions that remain unanswered. In the last blog, we posed three of those questions. The first is whether an attorney can view publicly available portions of social media to gain information about the opposing party for litigation. The answer is yes, as there is no ethical impediment to gathering information about the opposing party through publicly available sources.
The second question is whether an attorney may “friend” an opposing party to gain access to non-public information. Although there is no opinion in NC on this issue, I believe that this is problematic, at least where the opposing party is represented by counsel. Under that circumstance, Rule 4.2 prohibits communications with a represented person “about the subject of the representation.” There is no question that sending an invitation to “friend” someone on Facebook is a communication, but is it “about the subject of the representation.” A good argument can be made that it is not, without more, because it does not touch upon the subject of the representation, or any subject at all. As long as the attorney makes the request under his actual name, does not communicate any false or misleading information, and does not try to elicit any information from the opposing party through social media, should this be a problem under the Rules of Professional Conduct? My guess is that because the attorney’s motivation for making the friend request is to find information about the opposing party which would relate to the representation and is not otherwise in the public domain, there is also the argument that the communication is ostensibly “about the subject of the representation.” Even a “friend” request to an unrepresented party may be problematic, as Rule 4.3(b) requires that when the lawyer reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer has the obligation to try to correct the misunderstanding. Keep in mind that the Ethics Committee has not opined on this issue, so I would be careful and seek ethics advice before proceeding in this fashion.
The third question is whether the attorney can direct another person, perhaps his firm administrator or a relative for example, to “friend” the individual to gain access on the attorney’s behalf. In this situation, it is more likely the opposing party may not recognize the name of the person making the friend request. In addition to the Rule 4.2 issue, I have more trouble with this, as the entire purpose of asking a third person to make the “friend” request is the hope that the opposing party won’t know from whom they are receiving the request, and would not view the person as a threat. This approach could be considered misleading under the Rules, and a likely violation of Rule 8.4(c).
Bottom Line: To be safe, if you want to view non-public portions of an opposing party’s Facebook page, represented or not, use ordinary discovery methods, or ask the State Bar first. It might be time for the Bar to look at this issue and weigh in on it.