Commission on Law & Technology


Communications Via Social Media


Leading Practices | Social Media

Working Group Social Media
Topic Communications Via Social Media
Date of Publication January 24, 2014
Summary This Leading Practice addresses the potential ethical implications arising from lawyers' and clients' online communications regarding information relating to a legal matter. This Leading Practice does not address communications made via social media in the context of attorney advertising or solicitations.
Applicable DLRPC (Rules) 1.6; 3.4(a); 3.5(b); 4.3; 5.1; 5.3

Disclaimer: The purpose of this leading practice is to provide the Delaware Bench & Bar with an understanding of an appropriate manner in which this technology may be used. There may be more appropriate uses; and the leading practice discussed might not be appropriate for a specific purpose. It is up to the individual to use well-reasoned judgment in making that decision. The Commission is not responsible for the consequences of the decision-making process.


Communications Via Social Media


Principle 1: A message sent via a social-networking site may be considered a "communication" for the purpose of Rules.

Discussion:

Messages sent through social media may constitute a "communication" under the Rules.

For example, a "friend request" sent via Facebook or a "request to connect" sent via LinkedIn would likely constitute a communication for the purposes of the Rules.

Such communications must comply with all applicable Rules, including, for example, Rule 3.5(b), which deals with communications with jurors and Rule 4.3, which deals with communications with unrepresented persons.

Applicable Rules:

1.1 Competence

1.3 Diligence

3.5(b) Impartiality and decorum of the tribunal

3.5(c) Impartiality and decorum of the tribunal

4.1 Truthfulness in statements to others

4.2 Communication with person represented by counsel

4.3 Dealing with unrepresented person

5.3 Responsibilities regarding non-lawyer assistance 8.4 Misconduct

References:

Monsanto Co. v. Aetna Cas. & Surety Co., 593 A.2d 1013 (Del. Super. 1990) (finding that private investigators hired by a party to interview unrepresented third-party witnesses must first affirmatively disclose the purpose of the interview and certain background information about the case), followed by Showell v. Mountaire Farms, No. 02C-01016-RFS, 2002 Del. Super. LEXIS 492, at *5-6 (Del. Super. Nov. 18, 2002).

LaPoint v. AmericsourceBergen Corp., 2006 Del. Ch. LEXIS 134, 2006 WL 2105862 (Del. Ch. July 18, 2006) (holding that an attorney who intends to contact a former manager of an adverse party ex parte and seeks only key nonprivileged facts must, at the outset, make the former employee aware that she may not divulge privileged information), followed by Postorivo v. AG Paintball Holdings, Inc., No. 299-VCP, 2008 Del. Ch. LEXIS 120, *71-72 (Del. Ch. Aug. 28, 2008).

Phila. Bar Ass'n Prof'l Guidance Comm., Op. 2009-02 (Mar. 2009) (discussing the ethical implications of communicating with a non-represented third-party witness by sending a Facebook or Myspace friend request for the purpose of obtaining access to the information on the witness' social-networking profile).

N.Y. State Bar Ass'n Comm. on Prof'l Ethics, Formal Op. 843 (Sept. 10, 2010) (finding that a lawyer who has access to the social-networking profile of another party in litigation may access and review the public portions of that profile to search for potential impeachment material for use in the litigation).

San Diego County Bar Ass'n, Formal Op. 2011-2 (2011) (finding that a lawyer's ex parte communication via Facebook with management-level employees would likely constitute impermissible communication with a represented party).

N.Y.C Bar Ass'n, Formal Op. 2012-2, Jury Research & Social Media (2012) (finding that an attorney is prohibited from misrepresenting his identity during online communications in order to access a juror's information).

N.H. Bar Ass'n Ethics Comm., Advisory Op. 2012-13/05, Social Media Contact with Witnesses in the Course of Litigation (2013) (finding that it would violate a lawyer's duty of truthfulness in statements to others for a lawyer to send a friend request without affirmatively disclosing his identity and role in the pending litigation).

But see N.Y.C. Bar Ass'n, Formal Op. 2010-2, Obtaining Evidence From Social Networking Websites (2010) (finding that a lawyer need not disclose the purpose of a friend request sent to an unrepresented person, provided the request contains not untruthful information).

Ore. State Bar Ass'n, Formal Op. No. 2013-189, Accessing Information about Third Parties Through a Social Networking Website (2013) (finding that a lawyer or his agent may request access to view non-public information on the social-networking profile of an unrepresented third party without affirmatively disclosing the purpose of the request, provided that no misrepresentation is made).

Principle 2: Information communicated via social media may constitute a disclosure of client confidential information.

Discussion:

All information posted online, including to social-networking sites, must comply with the Rules regarding client confidential information.

Information relating to the representation of a client should not be communicated via social-media sites unless the communication complies with Rule 1.6.

Applicable Rules:

1.1 Competence

1.6 Confidentiality of information

References:

Steven C. Bennett, Ethics of Lawyer Social Networking, 73 Alb. L. Rev. 113 (2009).

Lackey, Michael E. Jr. and Minta, Joseph P., Lawyers & Social Media: The Ethics of Legal Tweeting, Facebooking and Blogging, Touro L. Rev., Vol. 28: No. 1, Article 7 (2012).

Principle 3: A client's communication via social-media about the client's case can constitute a waiver of the attorney-client privilege.

Discussion:

A client's online posts may constitute a waiver of the attorney-client privilege.

To prevent the inadvertent breach of privilege, a lawyer should consider the benefits of advising his clients of the potential consequences of communicating about the representation in an online forum.

For example, a client's Facebook post about his lawyer's trial strategy may not be protected by the attorney-client privilege and, as a result, may be subject to discovery.

Applicable Rules:

1.1 Competence

1.6 Confidentiality of information

References:

Lenz v. Universal Music Corp., 2010 U.S. Dist. LEXIS 119271 (N.D. Cal. Oct. 22, 2010) (finding that the plaintiff waived privilege by virtue of her posts on her blog, Gmail chat, and emails discussing her communications with her attorney).

NYCLA, Ethics Op. 745, Advising a Client Regarding Posts on Social Media Site (July 2, 2013) (finding that an attorney may advise clients as to what the client should or should not post on social media, as well as the particular implications of social-media posts).

Principle 4: An attorney should consider whether to advise clients about the potential implications of the clients' social-media communications.

Discussion:

A lawyer should consider advising his or her clients about the risks specific to social-media posts and online activity.

For example, a lawyer should consider discussing with his client that the "privacy" settings available on a social-media site do not necessarily retain the same meaning in a legal context. Hence, social-media content may be subject to discovery during litigation.

A lawyer also should consider discussing how social-media content can constitute evidence that may be admissible during litigation.

Finally, a lawyer should consider discussing how information that is shared via social media can be republished without the client's consent. In other words, the client's Facebook friends can share the client's messages, pictures, or other content, without the client's knowledge or consent.

Applicable Rules:

1.1 Competence

3.5 Impartiality and decorum of the tribunal

4.1 Truthfulness in statements to others

References:

N.Y. County Lawyers' Ass'n, Ethics Op. 745, Advising a Client Regarding Posts on Social Media Site (July 2, 2013) (finding that the duty of competence could give rise to an obligation to advise clients about what steps to take to mitigate any adverse effects on the clients' position emanating from the clients' use of social media, including advising clients regarding the appropriate privacy settings).

Mark Niesse, Twitter Sunk Woman's Award After Car Crash, N.J. L.J. (Jan. 2, 2013) (discussing a court order reducing jury award after defendant introduced Twitter messages by plaintiff discussing traveling and partying after a car accident).

Principle 5: There is a duty to preserve social-media content, communications, and related information relevant to an active or threatened litigation.

Discussion:

Social-media content constitutes evidence and any potentially relevant information that exists on a social-media or social-networking site must be preserved.

Social-media content, including communications, and related information and metadata constitutes electronic evidence that is subject to the same rules of discovery as traditional forms of evidence.

A lawyer cannot preserve relevant social-media content unless he or she is aware that such content exists. Thus, it is important that a lawyer takes affirmative steps to ascertain whether such evidence may exist and, if so, how to best preserve such content in accordance with Rule 3.4(a) and the common-law duty to preserve.

Applicable Rules:

1.1 Competence

3.4(a) Fairness to opposing party and counsel

References:

TR Investors, LLC v. Genger, 2009 WL 4696062, at *17 (Del. Ch. Dec. 9, 2009) (discussing the common-law duty to preserve potentially relevant evidence)

Lester v. Allied Concrete Co., No. CL08-150 (Va. Cir. Ct. Sept 10, 2011), aff'd, No. 120074 (Va. Ct. App. Jan. 10, 2013) (imposing sanctions against a lawyer and his client for hiding and destroying social-media evidence).

Katiroll Co., Inc. v. Kati Roll & Platters, Inc., No. 10-3620 (GEB) (D.N.J. Aug. 3, 2011) (finding a technical, but unintentional, spoliation when the plaintiff changed his Facebook profile picture where the picture at issue was alleged to show infringing trade dress).

N.Y. County Lawyers' Ass'n, Ethics Op. 745, Advising a Client Regarding Posts on Social Media Site (July 2, 2013) (finding that attorneys may advise clients as to what existing postings they may or may not remove).

Principle 6: An attorney can be responsible for the ethical violation of other attorneys and non-lawyer agents, such as paralegals and investigators, resulting from communications made via social media.

Discussion:

Lawyers have a duty to ensure that those who are working on their behalf or under their authority understand and comply with the Rules.

This requires that partners, managing partners, and supervising attorneys should make reasonable efforts to ensure that lawyers and non-lawyer agents acting for the firm understand the ethical implications of communications made via social media. This requirement may be met, for example, with an effective social-media policy that addresses ethical use of social media.

Additionally, an attorney with supervisory authority must take reasonable efforts to ensure that attorneys and non-attorney agents acting on his behalf or under his authority comply with the Professional Rules of Conduct.

Applicable Rules:

5.1 Responsibilities of partners, managers, and supervisory lawyers

5.3 Responsibilities regarding non-lawyer assistance