Dear Fellow Members:
Below you will find a link to an online copy of the Maryland Rules of Professional Conduct. We have provided this link in hopes of making your search for answers to your legal ethics questions easier. As always, if you need additional guidance, please do not hesitate to call the Legal Ethics Committee hotline at the number listed in the current issue of your bar newsletter.
MD Rules of Professional Conduct
Legal Ethics Hotline Volunteers ... January
Ed Sharkey ... 301-657-8184 ... firstname.lastname@example.org
Dan Shea ... 301-424-1060 ... email@example.com
Ethical Considerations Relevant to Using Social Media to Investigate Opposing Parties and Others
Lawyers in many practice areas use social media to investigate opposing parties and others. There are likely an equal number of lawyers who understand they have a duty to explore available, relevant information, including on social media, but who are not yet “up to speed” or proficient in doing so. There is no Maryland ethics opinion commenting on standards of conduct when using social media to investigate. There are, however, illustrative opinions from other jurisdictions.
This article examines three relevant opinions issued in New York,1 Pennsylvania,2 and the District of Columbia.3 These can be a source of guidance for Maryland lawyers making hard choices in the dynamic and complex area of social media. There also is a useful website compiling links to opinions from, apparently, every State or County committee that has addressed the issue.4
The duty to investigate social media: The consensus is that the duties of competence and diligence under Rules 1.1 and 1.3 require a lawyer to at least assess whether investigating social media is reasonable and necessary in all matters. This is not limited to litigation matters. And it is not limited to opposing parties. In any context where a party, including the lawyers’ own client, makes a claim, representation, covenant, warranty, or other undertaking, it could be that an inconsistent posting on social media would create a claim, defense, obligation, right, or remedy. This consideration creates the lawyer’s obligation to consider investigating.
The social media of represented persons: Rule 4.2 precludes a lawyer from communicating with represented persons without the consent of their counsel. Generally, the committees conclude that reviewing public social media posts does not violate this prohibition because doing so is not a “communication.” “Public” means that information available to anyone viewing the network without the need for special permission of the account owner.
The Rule does, however, prohibit requesting access to information protected by privacy settings from a represented person without express authorization. This would include making a “friend” request on Facebook. That is a communication. The committees note that some networks may automatically notify account owners when someone views their information. One such network is LinkedIn.
All of the committees conclude that a lawyer has a duty to know whether reviewing information will trigger such a notice to the owner. The New York committee concludes that such notice might be a communication that violates Rule 4.2. It concedes, however, that, in the context of an opinion about juror social media, the ABA opined that an automatic notice is not a communication.5
The New York committee advises that a lawyer may review private social media information obtained by the client as long as the lawyer did not cause the client to inappropriately obtain the information or invite the person to take action without the advice of their lawyer. This falls into the category of one party communicating with another.
The social media of unrepresented persons: There is no similar prohibition about requesting private information or access from unrepresented persons. But Rule 4.3 does require candor. And Rule 8.4(c) precludes dishonesty. The committees concluded that, to comply with these rules, a lawyer must be sure not to misguide the recipient. The committees advise that lawyers should identify themselves, state that they are lawyers, and identify whom they represent and the matter.
This precludes “pretexting” – a practice where lawyers ask a third person to solicit access to private information so as not to arouse suspicion. In addition, the New York committee advises that, if the target person requests additional information from the lawyer in response to the solicitation for access, the lawyer must accurately provide the information or withdraw the request.
The social media of jurors: The committees, and the referenced ABA opinion, conclude that a lawyer may research jurors’ public social media. The DC committee advises that the duties of competence and diligence may actually require it. Doing so does not violate Rule 3.5 (Decorum of the Tribunal), as long as there is no communication with the juror. The New York committee advises that any such research must be undertaken in a way that does not create a digital “footprint” or notice to the juror. This arises from its concern that an automatic notice is a “communication”.
Modern technology and internet access makes this possible, even under the time constraints extant in Maryland Circuit Courts when picking a jury. It is uncertain how the Maryland judiciary would feel about this. Where lawyers conclude it is reasonable and necessary to do such research in a particular case, the issue may be unavoidable. The solution might be to disclose any such intent to the judge. An order or directive from the judge precluding it would create an overriding ethical duty to comply under Rule 3.4(c).
The social media of judges and arbitrators: The same duties warrant considering examination of the social media of decision-makers. Absent a rule to the contrary, lawyers may conclude it is reasonable and necessary to research it. The ABA, as well as other State committees, previously concluded that judges can participate in social media and that lawyers can be “friends” with them. The committees generally conclude that lawyers may review judges’ social media profiles, including private information if they have access.
Our Committee has previously questioned whether judges’ social relationships with lawyers appearing before them may require disclosure so as to avoid the appearance of impropriety. If a judge is “Facebook friends” with a lawyer appearing in their court, that raises the same question.
Of course, these considerations do not affect the rights and obligations of parties pursuant to formal discovery Lawyers may and should take reasonable steps in formal discovery to obtain relevant information on social media. And lawyers have a duty to advise clients about the obligation to preserve data, including social media, in connection with any litigation which exists or reasonably is anticipated.
1Social Media Ethics Guidelines - http://bit.ly/1nMjtUS.
2Formal Opinion 2014-300 - http://bit.ly/2hjVU31.
3Ethics Opinion 371 - http://bit.ly/2h6hOrv.
5ABA Formal Opinion 466 - http://bit.ly/QS1LyD. The New York committee notes that the ABA’s view has been criticized on the basis of the potential effect such notice might have on a juror’s state of mind. The New York committee did not assess whether the effect on an opposing party’s state of mind also created an ethical problem..
Edward E. Sharkey, Committee Member
Daniel L. Shea, Committee Co-Chair
Samuel M. Shapiro, Committee Co-Chair
Allen J. Katz, Committee Co-Chair.
Allen J. Katz
Samuel M. Shapiro
Daniel L. Shea
February 16, 2017
March 16, 2017
April 20, 2017
Meetings will be held at 4:30 p.m. on the 3rd Thursday of the month (September - May) in the upstairs conference room of the Bar Association building, unless otherwise noted.