Social Media Ethics: What Lawyers Need to Know

Hardly a day goes by without hearing the term social media, and there seems to be a new social media site or app every day. At its core, social media is any form of online electronic communication through which users share information, messages, ideas, and content like photos or videos with an online community.

Social media has impacted the practice of law in a couple major ways. First, social media isn’t just confined to the personal realm, but has become a powerful business tool. Through social media, lawyers can connect with the rest of the legal community, deliver messages and promotional content to the world, and grow business. Second, social media has inextricably woven itself into the body of relevant evidence that makes up nearly every litigation and can be a legitimate source of risk for individuals and businesses if not used properly. As the reach of social media only continues to grow, its impact on law, and litigation in particular, is becoming clear across the profession.

Social media is so prevalent in the legal profession that it’s now addressed in the ethical rules and opinions of numerous disciplinary bodies. The ABA Model Rules of Professional Conduct set forth an obligation for attorneys to understand social media and stay abreast of how it impacts the profession.

A number of states have set out more specific requirements, including New York, Pennsylvania, and California, to name a few. Disciplinary and ethics rules cover a whole range of social media topics, including attorneys’ interactions with clients and represented persons via social media, the use of social media information in disputes, the propriety of online attorney reviews and endorsements, attorneys’ social media interactions with jurors and judges, the duty to retain and preserve all relevant information and communications that occur via social media, and attorneys’ obligations to review the terms and conditions of social media networks before using them in order to understand the risks and ethical implications.

In short, attorneys should be aware that social media postings and interactions are always subject to rules of professional conduct and should be familiar with the rules that govern their own practice.

With the widespread ethics implications of social media, it should always be used with caution in the legal profession. However, there are certain common pitfalls that can be avoided with proper foresight.

• Discovery Requests. While social media is undeniably discoverable, it’s subject to the same standards of discoverability as any other evidence – requests must be reasonably calculated to lead to the discovery of evidence relevant to the claims of the case. Therefore, attorneys should avoid blanket social media discovery requests, as they’re likely to be denied as overly broad. Be specific and tailor your requests to the case at hand.

• Privacy Issues. The right to privacy is one of the biggest issues that arises in social media discovery. Even when social media accounts are set to “private,” the information shared on them is generally still considered discoverable, as sharing information even just with a select group of people eliminates the expectation of privacy. Lawyers should counsel clients that “private” posts will not be considered private for purposes of discovery.

• Authentication. Social media evidence is subject to the same rules of authentication as any other evidence (starting with Federal Rule of Evidence 901). In order to satisfy evidentiary standards, lawyers may need to learn about new data collection processes, such as screen shots, web capture tools, and social discovery tools, so that valuable evidence isn’t rendered inadmissible simply due to improper collection.

• Avoiding Mistrials. Social media can wreak havoc on your trial. The first way is through your jury – it’s crucial that jurors be instructed about proper social media usage during a trial, specifically that they should not discuss or research the case on social media. Attorneys also need to be careful when researching jurors on social media. Passive research is permitted, but any sort of interaction is strictly forbidden. Attorney social media interactions with judges are not wholly impermissible, but come with huge ethics implications, so both parties should proceed with caution.