Can a Kentucky lawyer look at or access the Facebook or other social media account of an opposing party, witness, or juror to gather information for a client's case?

Plain-English summary

The committee was asked whether a lawyer may access or otherwise use the social network site of a third person, such as an adverse party, witness, or juror, to benefit a client. The opinion answered yes, provided the conduct does not violate the Rules of Professional Conduct.

The opinion's analysis turned on the conclusion that social networking does not create new ethical rules; the existing principles of honesty and fairness apply in the virtual world as in the non-technical one. The opinion observes that if the rules prohibit a lawyer from contacting jurors or communicating with represented parties offline, they prohibit the same conduct online. The committee declined to write scenario-specific guidance, reasoning that social networking is too complex and changes too quickly for an enduring catalog of fact patterns.

Applying the rules, the opinion concluded that viewing a "public" site accessible to all raises no ethical issue. Where access is limited, the lawyer may not use a false statement to gain access (Rule 4.1) or otherwise engage in dishonest conduct (Rule 8.4). A lawyer may not send a message or otherwise communicate with a person known to be represented by counsel about the subject of the representation (Rule 4.2), and when dealing with an unrepresented person such as a witness, may not state or imply that the lawyer is disinterested and may not give legal advice (Rule 4.3). The opinion concluded that the rules and other law barring improper contact with jurors apply in the social network context (Rule 3.5), and that a lawyer may not direct a paralegal, investigator, or other non-lawyer to obtain information through means the lawyer could not ethically use (Rule 8.4(a)).

In practice

Under the rules as they stood at the time of the opinion, a Kentucky lawyer investigating a matter through social media may view a third person's public profile freely. The opinion holds that the lawyer may not use deception to reach restricted content, may not message a represented party about the matter, may not imply disinterest to or give legal advice to an unrepresented person, and may not contact a juror by means the rules prohibit. The opinion also holds that a lawyer may not have an agent do any of these things on the lawyer's behalf, because Rule 8.4(a) reaches conduct accomplished through another.

Common questions

Q: Can a Kentucky lawyer look at an opposing party's public Facebook profile?

A: Yes. The opinion concluded that if a site is public and accessible to all, there does not appear to be any ethical issue with viewing it.

Q: Can a lawyer use a false identity or a pretextual "friend" request to see a restricted profile?

A: No. The opinion concluded that the rules require truthfulness; Rule 4.1 bars making a false statement and Rule 8.4 bars dishonest conduct, so a lawyer may not use deception to gain access to limited content.

Q: Can a lawyer message a represented opposing party through a social network?

A: No. The opinion concluded that Rule 4.2 generally prohibits communicating about the subject of the representation with a person known to be represented by counsel, and that the rule applies online, even if the represented person initiates or consents to the contact.

Q: Can a lawyer have a paralegal or investigator do the social media work the lawyer could not do directly?

A: No. The opinion concluded that under Rule 8.4 a lawyer generally cannot use another person to do that which the lawyer is prohibited from doing.

Background and rules framework

The opinion interprets several Kentucky rules as a single fairness-and-honesty framework: SCR 3.130(4.1) (truthfulness in statements to others), SCR 3.130(4.2) (communication with a represented person), SCR 3.130(4.3) (dealing with an unrepresented person), SCR 3.130(3.5) (impartiality and decorum of the tribunal, including juror contact), and SCR 3.130(8.4)(a) and (c) (misconduct, including acting through another and conduct involving dishonesty). These correspond to Model Rules MR 4.1, 4.2, 4.3, 3.5, and 8.4. The opinion limits itself to a lawyer's use of a third person's social network site and does not address a lawyer's use of the lawyer's own site for advertising.

Citations and references

Rules of Professional Conduct:

• MR 4.1 / SCR 3.130(4.1): truthfulness in statements to third persons.
• MR 4.2 / SCR 3.130(4.2): no contact with a represented person about the matter.
• MR 4.3 / SCR 3.130(4.3): dealing with an unrepresented person.
• MR 3.5 / SCR 3.130(3.5): improper influence on and contact with jurors.
• MR 8.4 / SCR 3.130(8.4)(a),(c): misconduct, including acting through another.

Other opinions cited:

• San Diego County Bar Op. 2011-2 (2011).
• N.Y. State Bar Assn. Op. 843 (2010).

See also

• KBA Ethics Op. E-447: Posting Client Information on Social Media
• KBA Ethics Op. E-448: Responding to Online Criticism
• KBA Ethics Op. E-435: Plea Waivers of Ineffective-Assistance Claims

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-434.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-434

Issued: November 17, 2012

The Rules of Professional Conduct are amended periodically. Lawyers should consult the current version of the rules and comments, SCR 3.130 (available at http://www.kybar.org/237), before relying on this opinion.

Subject: Ethical Considerations Relating to a Lawyer's Use of Social Network Sites [1] to Benefit a Client [2]

Question: May a lawyer access or otherwise use the social network site of a third-person to benefit a client?

Answer: A lawyer may access or otherwise use the social network site of a third-person to benefit a client, as long as the conduct does not violate the Rules of Professional Conduct.

References: SCR 3.130 (3.5), (4.1), (4.2), (4.3), (8.4) (a) and (c); Risk Managing Internet Social Network Investigations, 23 The Risk Manager (newsletter of Lawyers Mutual Ins. Co. of Ky.) (Spring 2012), www.lmick.com/resources/the-risk-manager-by-year/187-newsletter-2012.html; Journal of Computer-Mediated Communications (2007); San Diego Co. Bar Op. 2011-12 (2011); N.Y. State Bar Assn. Op. 843 (2010).

Introduction

The dramatic changes in information technology and the growth of social network sites such as Facebook have significantly changed the way people communicate. At the same time, these changes have made a wealth of personal information available over the internet. While many use these networks for social purposes, connecting with friends and family, they also can be used for business and professional purposes and may be a valuable resource for a practicing lawyer. Information posted on the social network site of an adverse party, a witness, juror or other third person could be very useful to the lawyer investigating a matter on behalf of a client.

The Committee has received several inquiries regarding the use of social network sites and the extent to which lawyers may go to obtain access to information from the site of an opponent or other third person. In addressing these issues, the Committee perceived two challenges. First, ethical issues raised by modern technology were not even imagined by the drafters of the Rules of Professional Conduct. However, after considerable discussion the Committee concluded that, despite the advances in technology, the core ethical principles upon which the profession has relied for generations – honesty and fairness -- remain unchanged. In the final analysis, though social networking may appear to raise new ethical issues that might require new rules, the current rules adequately address those issues that have been brought to the attention of the Committee. For example, if the Rules of Professional Conduct prohibit lawyers from contacting jurors or communicating with represented parties in the non-technical world, they prohibit such conduct in the virtual world. The underlying principles of fairness and honesty are the same, regardless of context.

The second challenge related to the specific scenarios that the Committee was asked to address. We quickly realized that social networking is extraordinarily complex and is being modified constantly. In addition, new systems are being developed every day and it is beyond the Committee's capacity to imagine what might develop in the future. Because of this, it is not possible to draft an opinion with specific scenarios that would be comprehensive and enduring. Nevertheless, the Committee believes it would be helpful to address the basic Rules of Professional Conduct that might be implicated when a lawyer accesses or otherwise uses a social network site to benefit a client. Specifically, those rules are:

SCR 3.130(4.1) Truthfulness in Statements to Others
SCR 3.130 (4.2) Communication with Person Represented by Counsel
SCR 3.130(4.3) Dealing with Unrepresented Person
SCR 3.130(3.5) Impartiality and Decorum of the Tribunal
SCR 3.130(8.4(a)(c)) Misconduct

Some inquiries have focused on whether a lawyer may access the site of a third person. If the site is "public," and accessible to all, then there does not appear to be any ethical issue. [3] If, however, access is limited, then there may be issues of what the lawyer can do to gain access. The Rules of Professional Conduct require truthfulness and honesty in dealing with others. Specifically, SCR 3.130 (4.1) prohibits a lawyer from making false statements. [4] Also relevant is SCR 3.130(8.4), which prohibits the lawyer from engaging in dishonest conduct. [5]

Social network sites generally permit certain people to send messages to others. A lawyer's communication with someone represented by counsel is addressed by SCR 3.130(4.2), which generally prohibits direct contact. [6] To the extent that someone is represented by counsel, it would apply. The Commentary to Rule 4.2 explains that the rule is to protect against uncounseled disclosures and applies even though the represented person initiates or consents to the contact. [7] If a person with whom the lawyer is communicating is unrepresented, such as a witness, then SCR 3.130 (4.3) would apply. [8] The Rules of Professional Conduct, [9] as well as various statutes and court rules, prohibit improper contact with jurors. Those prohibitions would apply in the social network context as well.

Finally, questions have arisen as to whether a lawyer may request a third person, such as a paraprofessional, investigator or other non-lawyer staff member, to obtain information through means that the lawyer could not ethically use. SCR 3.130 (8.4) [10] and the Comments [11] normally would prohibit such conduct. As a general rule, a lawyer cannot use another to do that which the lawyer is prohibited from doing.

Conclusion

Social networking and other technological advances have provided, and will continue to provide, endless possibilities for obtaining information that may be useful in the representation of a client. These systems are extraordinarily complicated and constantly changing, and thus it would be impossible to address every possible ethical consideration that might arise in conjunction with the use of social network sites. Several core principles are clear. Every lawyer is bound by the Rules of Professional Conduct. Those rules prohibit a lawyer from misrepresenting material facts, or engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. They also provide that a lawyer may not communicate with persons represented by counsel or state or imply disinterest in dealing with unrepresented persons. In addition, the rules prohibit improper contact with jurors. Finally, Rule 8.4(a) prohibits a lawyer from using a third person to engage in conduct that would violate the Rules of Professional Conduct, if done by a lawyer. A lawyer must keep all of these rules in mind when deciding the appropriate use of social network sites.

[Footnote 1: Social networks, as commonly understood at the time this opinion was written, include web-based services that allow individuals to build a public or semi-public bounded system; to identify users with whom they share a connections and view and traverse their list of connections and those made by others in the system. boyd, d. m. and Ellison, N. B., Social network sites: Definition, history, and scholarship, Journal of Computer-Mediated Communications (2007), http://jcmc.indiana.edu/vol13/issue1/boyd.ellison.html.]

[Footnote 2: This opinion only addresses ethical considerations relating to the lawyer's use of social network sites of third persons. It does not address the ethical restrictions on a lawyer's use of his or her own social network site for advertising or other purposes.]

[Footnote 3: See, San Diego Co. Bar Op. 2011-2 (2011). See also, N.Y. Bar Assn. Op. 843 (2010).]

[Footnote 4: SCR 3.130(4.1) provides: "In the course of representing a client a lawyer:(a) shall not knowingly make a false statement of material fact or law to a third person; and (b) if a false statement of material fact or law has been made, shall take reasonable remedial measures to avoid assisting a fraudulent or criminal act by a client including, if necessary, disclosure of a material fact, unless prohibited by Rule 1.6."]

[Footnote 5: SCR 3.130(8.4(a),(b),(c)) provides: "It is professional misconduct for a lawyer to:(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation…."]

[Footnote 6: SCR 3.130(4.2) provides: "In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order."]

[Footnote 7: See Comments 1 and 3 to Rule 4.2.]

[Footnote 8: SCR 3.130(4.3) provides: "In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person. The lawyer may suggest that the unrepresented person secure counsel."]

[Footnote 9: SCR 3.130(3.5) provides: "A lawyer shall not: (a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law; (b) communicate ex parte with such a person as to the merits of the cause except as permitted by law or court order; (c) communicate with a juror or prospective juror after discharge of the jury if: (1) the communication is prohibited by law, local rule, or court order; (2) the juror has made known to the lawyer a desire not to communicate; or (3) the communication involves misrepresentation, coercion, duress or harassment; or (d) engage in conduct intended to disrupt the tribunal."]

[Footnote 10: SCR 3.130(8.4) provides that it is "professional misconduct for a lawyer to assist or induce another to engage in conduct that violates the Rules of Professional Conduct."]

[Footnote 11: Comment 1 to Rule 8.4 provides: "Lawyers are subject to discipline when they violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so or do so through the acts of another, as when they request or instruct an agent to do so on the lawyer's behalf."]

Note to Reader

This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530. The Rule provides that formal opinions are advisory only.