How may a D.C. lawyer use social media in representing clients, including reviewing an opponent's posts, advising on a client's own accounts, and preserving evidence?
Apply this to your situation
This page answers the general question as of 2016. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
Opinion 371 (published November 2016) is the companion to Opinion 370 and addresses using social media in the substantive practice of law. The Committee concludes that, because social media pervade modern practice, competent representation under Rule 1.1 (and diligent representation under Rule 1.3) requires a lawyer to understand how social media work and to exercise informed professional judgment about whether and how to use them, though not every matter requires their use; that understanding can be acquired with the help of other lawyers and staff.
On communicating with clients, the opinion concludes that lawyer-client social media communication implicates Rules 1.6, 1.1, and 1.4, because such communication is often public or semi-public. The lawyer should understand how non-clients can access a client's posts and should advise the client that disclosure can waive attorney-client privilege and work-product protection; the opinion suggests addressing in the engagement letter whether social media should be used for attorney-client communication at all. On social media as a source of information, the opinion concludes a lawyer may need to review the client's own posts (to ensure filings are meritorious under Rule 3.1 and not misrepresentations under Rules 3.3 and 8.4) and may need to investigate the public posts of opponents, witnesses, and experts. Crucially, on document preservation, the opinion concludes that because posts are subject to discovery and subpoenas, a lawyer must consider litigation holds and must not counsel or assist a client in obstructing access to or destroying, altering, or concealing evidence under Rule 3.4(a); before any lawyer-counseled removal or change of client social media, an accurate copy should be made and preserved.
On contact rules, the opinion concludes that reviewing a represented person's public postings is not a communication and does not violate Rule 4.2, but requesting access behind privacy settings (such as a "friend" request to a represented person) is a communication barred by Rule 4.2 without opposing counsel's consent. The opinion also frames duties to unrepresented persons (Rule 4.3) and the supervision of subordinate lawyers and nonlawyer staff under Rules 5.1 and 5.3, including ensuring their social media activity (even personal posting) protects confidential client information.
In practice
Under the D.C. rules as they stood at the time of the opinion, a lawyer should be competent in how social media work (Rule 1.1), should consider whether reviewing or using social media would benefit a matter, and should advise clients about the confidentiality and privilege risks of their own posts (Rules 1.4 and 1.6), potentially addressing in the engagement letter whether to use social media for attorney-client communication. The opinion concludes a lawyer may review the public social media of opponents, witnesses, and experts, but may not send a friend or access request to a represented person, which Rule 4.2 treats as a prohibited communication.
The opinion concludes a lawyer must not counsel or assist a client in destroying, altering, or concealing social media evidence (Rule 3.4(a)) and should preserve an accurate copy before any client takedown, must ensure filings are meritorious and not misleading in light of a client's posts (Rules 3.1, 3.3, 8.4), and must supervise staff and subordinate lawyers' social media use (Rules 5.1, 5.3). Because the opinion predates later rule developments, verify the current D.C. rules before relying on specific requirements.
Common questions
Q: Does competence require a D.C. lawyer to use social media?
A: The opinion concludes a lawyer must understand how social media work and exercise informed judgment about whether they would benefit a matter, but it does not require using social media in every representation.
Q: Can I look at an opposing party's social media?
A: The opinion concludes a lawyer may review the public postings of opponents, witnesses, and others because no communication occurs, but requesting access behind privacy settings (such as a friend request) to a represented person is a communication barred by Rule 4.2.
Q: Can I tell my client to delete or change harmful social media posts?
A: The opinion concludes a lawyer must not counsel or assist obstructing access to, or destroying, altering, or concealing, evidence under Rule 3.4(a), and that before any lawyer-counseled removal or change, an accurate copy of the content should be made and preserved.
Q: Should I warn clients about communicating with me on social media?
A: The opinion concludes a lawyer should advise clients that non-client access to their posts can waive attorney-client privilege and work-product protection, and suggests addressing in the engagement letter whether social media should be used for attorney-client communication.
Q: Am I responsible for my staff's social media activity?
A: The opinion concludes a lawyer must supervise subordinate lawyers and nonlawyer staff under Rules 5.1 and 5.3 to ensure their social media use, including personal posting, conforms to the Rules and protects confidential client information.
Background and rules framework
The opinion applies the competence and diligence duties (Rules 1.1, 1.3), communication and scope (Rules 1.2, 1.4), confidentiality (Rule 1.6), the litigation rules (Rules 3.1, 3.3, 3.4, 3.5, 3.6, 3.8), the rules on contact with represented and unrepresented persons (Rules 4.1, 4.2, 4.3, 4.4), and the supervisory rules (Rules 5.1, 5.3) to social media used in representing clients. It is the companion to Opinion 370 (Social Media I).
Citations and references
Rules of Professional Conduct:
- D.C. RPC 1.1, 1.3 / Model Rules 1.1, 1.3 (competence and diligence, including technology)
- D.C. RPC 4.2 / Model Rule 4.2 (communication with represented persons; friend requests)
- D.C. RPC 3.4(a) / Model Rule 3.4 (fairness; no destroying or concealing evidence)
- D.C. RPC 1.6, 1.4 / Model Rules 1.6, 1.4 (confidentiality; advising clients on post risks)
- D.C. RPC 4.3, 5.1, 5.3 / Model Rules 4.3, 5.1, 5.3 (unrepresented persons; supervision)
Cases:
- Lenz v. Universal Music Corp., client emails and chats waived attorney-client privilege
Other opinions cited:
- ABA Formal Op. 466: reviewing jurors' internet presence
- D.C. Bar Legal Ethics Op. 370: social media marketing and personal use (companion)
See also
- DC Ethics Op. 370: Social Media Marketing and Personal Use
- NYC Bar Ethics Op. 2010-02: Obtaining Evidence From Social Networking Sites
- ABA Formal Op. 466: Reviewing Jurors' Internet Presence
- Colorado Formal Op. 127: Social Media Investigation
Source
- Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-371
Get today's answer for your situation
You just read a 2016 opinion on this question. Ezel checks the current rules of professional conduct in your state and answers your specific situation, with citations.
Opens in Ezel Pro. Every answer cites the rules it relies on.