Can a North Carolina lawyer view or request access to the social media of an opposing party or witness, and what is off limits?

Plain-English summary

The opinion addresses how a lawyer may seek access to the social network presence (profiles, pages, and posts) of opposing parties and witnesses when preparing or investigating a client's matter. It frames the question against several rules: Rule 4.2 (communications with represented persons), Rule 4.3 (communications with unrepresented persons), Rule 4.1 (false statements of material fact to third persons), Rule 8.4(c) (dishonesty, fraud, deceit, or misrepresentation), and the duty of competence under Rule 1.1, comment [8], which requires keeping abreast of relevant technology.

On public content, the opinion concludes a lawyer may view the public portion of a person's social network presence, because that information is no different from any other publicly available information. An automatic notification the network sends to the viewed person is a communication by the service, not the lawyer (citing ABA Formal Op. 466), but repetitive viewing that generates multiple notifications may violate Rule 4.4(a) if it has no substantial purpose other than to embarrass, delay, or burden the person.

On restricted content, the opinion draws sharp lines. A lawyer may never use deception, dishonesty, or pretext, or instruct a third party to do so, to access restricted content (Rules 4.1 and 8.4(c)). Using his true identity, a lawyer may request access to an unrepresented person's restricted content as a form of informal discovery (Rules 1.1 and 1.3); a simple request does not imply the lawyer is disinterested under Rule 4.3, but if the person asks for more information the lawyer must answer accurately or withdraw the request. A lawyer may not request access to a represented person's restricted content without that person's lawyer's consent (Rule 4.2(a)), and may not direct a third party to do so (Rule 8.4(a)).

Finally, the opinion concludes a lawyer may request or accept information from a third party (or a client) who already has access to restricted content, because such a person is no different from any other witness with relevant information; the lawyer may not, however, direct or encourage that person to use deception when communicating on the network.

In practice

Under the North Carolina rules as they stood at the time of the opinion, the treatment of social-network investigation turns on whether the content is public or restricted and whether the person is represented. Viewing public content is permitted and treated like any other public information, subject to Rule 4.4(a)'s limit on repetitive viewing that serves no substantial purpose other than to burden the person. Deception of any kind to reach restricted content is prohibited, as is instructing someone else to use deception.

For restricted content, the opinion holds that a lawyer using a true identity may ask an unrepresented person for access (and must answer accurately or withdraw if asked for more information), but may not ask a represented person for access without that person's lawyer's consent, and may not route the request through a third party. The opinion concludes a lawyer may receive information that a third party or the client lawfully obtained from restricted content, treating that person as an ordinary witness, so long as the lawyer does not direct or encourage deception.

Common questions

Q: Can a North Carolina lawyer look at an opposing party's public Facebook or Instagram posts?

A: Yes. Opinion #1 concludes a lawyer may view the public portion of a person's social network presence because it is no different from other publicly available information.

Q: Does it matter if the site notifies the person that the lawyer viewed their profile?

A: Opinion #1 treats an automatic notification as a communication by the social network, not the lawyer (citing ABA Formal Op. 466). But repetitive viewing that generates multiple notifications with no substantial purpose other than to embarrass, delay, or burden the person may violate Rule 4.4(a).

Q: Can a lawyer set up a fake profile or use a pretext to see restricted posts?

A: No. Opinion #2 concludes a lawyer may never use deception, dishonesty, or pretext to access restricted content, and may not instruct a third party to do so, citing Rules 4.1 and 8.4(c).

Q: Can a lawyer send a friend request to an unrepresented person under his real name?

A: Yes. Opinion #3 permits a lawyer using his true identity to request access to an unrepresented person's restricted content; a simple request does not imply disinterest under Rule 4.3, but if asked for more information the lawyer must answer accurately or withdraw the request.

Q: Can a lawyer request access to a represented person's restricted social media?

A: No, not without consent. Opinion #4 concludes that, under Rule 4.2(a), the lawyer must have the represented person's lawyer's consent, and may not direct a third party to make the request (Rule 8.4(a)).

Q: Can a lawyer use information a client or witness pulled from someone's private posts?

A: Yes. Opinion #5 concludes a lawyer may request or accept such information from a third party or client who has access, treating them as any other witness, so long as the lawyer does not direct or encourage deception.

Background and rules framework

The opinion interprets North Carolina's rules governing communications with others in a matter. Rule 4.2 (Model Rule 4.2) bars communicating about the subject of a representation with a represented person absent that person's lawyer's consent; Rule 4.3 (Model Rule 4.3) bars implying disinterest to an unrepresented person and requires correcting a misunderstanding of the lawyer's role. Rule 4.1 (Model Rule 4.1) prohibits knowingly making a false statement of material fact to a third person, and Rule 8.4(c) (Model Rule 8.4) prohibits dishonesty, fraud, deceit, or misrepresentation; Rule 8.4(a) bars violating the rules through the acts of another. Rule 4.4(a) (Model Rule 4.4) bars means that have no substantial purpose other than to embarrass, delay, or burden a third person.

The opinion ties competence to technology through Rule 1.1, comment [8] (Model Rule 1.1), and treats social-network investigation as informal discovery within the diligence duty of Rule 1.3 (Model Rule 1.3). It relies on persuasive authority from other jurisdictions, including ABA Formal Op. 466, Colorado Formal Op. 127, NYCBA Formal Op. 2010-2, and Oregon State Bar Formal Op. 2013-189.

Citations and references

Rules of Professional Conduct:

• Model Rule 4.2 / NC Rule 4.2(a) (communication with represented persons)
• Model Rule 4.3 / NC Rule 4.3(b) (communication with unrepresented persons; no implying disinterest)
• Model Rule 4.1 / NC Rule 4.1 (false statement of material fact to a third person)
• Model Rule 8.4 / NC Rule 8.4(a), 8.4(c) (acts through another; dishonesty, deceit, misrepresentation)
• Model Rule 4.4 / NC Rule 4.4(a) (no substantial purpose other than to embarrass, delay, or burden)
• Model Rule 1.1 / NC Rule 1.1, cmt. [8] (competence; technology) and Rule 1.3 (diligence)

Other opinions cited:

• ABA Formal Op. 466 (2014): network-generated notification is a communication by the service, not the lawyer.
• Colorado Formal Op. 127 (2015): viewing public social media does not implicate communication restrictions.
• NYCBA Formal Op. 2010-2 (2010): social network privacy settings and friend requests.
• Oregon State Bar Formal Op. 2013-189 (2016 Revision): a simple access request does not imply the lawyer is disinterested.

See also

• Colorado Bar Op. 127: Social Media Investigation
• Maine Bar Op. 217: Access and Use of Social Media
• ABA Formal Op. 466: Reviewing Jurors' Internet Presence
• DC Bar Op. 371: Social Media Use in Providing Legal Services

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2018-formal-ethics-opinion-5/

Original opinion text

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

Introduction

Social networks are internet-based communities that individuals use to communicate with each other and to view and exchange information, including photographs, digital recordings, and files. Examples of currently popular social networks include, but are not limited to, Facebook, Twitter, Instagram, and LinkedIn. On some forms of social media, such as Facebook, users create a profile page with personal information that other users may access online. Websites that host the social networks often allow the user to establish the level of privacy for the profile page and postings thereon, and to limit those who may view the profile page and postings to “friends”—those who have specifically sent a computerized request to view the profile page which the user has accepted. NYCBA Formal Op. 2010-2 (September 2010).

Lawyers increasingly access social networks to prepare or to investigate a client’s matter. However, the use of social networks has ethical implications. Several rules restrict a lawyer’s communications with people involved in a client’s matter. Rule 4.2 restricts a lawyer’s communications with persons represented by counsel. Rule 4.3 restricts a lawyer’s communications with unrepresented persons. Furthermore, all communications by a lawyer are subject to Rule 4.1’s prohibition on knowingly making a false statement of material fact or law to a third person and to Rule 8.4(c)’s prohibition on conduct involving dishonesty, fraud, deceit, or misrepresentation that reflects adversely on the lawyer’s fitness as a lawyer.

The technology and features of social networks are constantly changing. It is impossible to address every aspect of a lawyer’s ethical obligation when utilizing a social network to prepare or to investigate a client’s legal matter. Every lawyer is required by the duty of competence to keep abreast of the benefits and risks associated with the technology relevant to the lawyer’s practice, including social networks. Rule 1.1, cmt. [8]. Further, when using a social network as an investigative tool, a lawyer’s professional conduct must be guided by the Rules of Professional Conduct.

This opinion will address ethical issues that arise when lawyers, either directly or indirectly, seek access to social network profiles, pages, and posts (collectively referred to as “social network presence”) belonging to another person. Throughout the opinion, “person” refers to opposing parties and to witnesses.

This opinion does not obviate comment [1] to Rule 8.4. The comment explains that the prohibition in Rule 8.4(a) against knowingly assisting another to violate the Rules of Professional Conduct or violating the Rules of Professional Conduct through the acts of another does not prohibit a lawyer from advising a client or, in the case of a government lawyer, investigatory personnel, of action the client, or such investigatory personnel, is lawfully entitled to take. See 2014 FEO 9 (use of tester in investigation that serves a public interest).

For guidance on communicating with a judge on a social network, see 2014 FEO 8. For the restrictions on communicating with a juror or a member of the jury venire, see Rule 3.5.

Inquiry #1:

Regardless of the privacy setting established by a user, some social network sites allow public access to certain limited user information. May a lawyer representing a client in a matter view the public portion of a person’s social network presence?

Opinion #1:

Yes. The public portion of a person’s social network presence refers to any information or posting that is viewable by anyone using the internet or anyone who is a member of the social network. Such information is no different than other information that is publicly available. Nothing in the Rules of Professional Conduct prohibits a lawyer from accessing publicly available information.

As noted by the Colorado Bar Association, “[a] lawyer’s conduct in viewing [the public portion of a person’s social media profile or any public posting made by an individual] does not implicate any of the restrictions upon communications between a lawyer and certain others involved in the legal system.” Colorado Formal Op. 127 (September 2015).

Some social networks automatically notify a person when his or her presence has been viewed. The person whose presence is viewed may receive information about the individual who viewed the presence. Under these circumstances, when a lawyer views a person’s public social network presence, it is the social network sending a communication, not the lawyer. Therefore, the notification generated by the social network is not a prohibited communication by the lawyer. See, e.g., ABA Formal Op. 466 (2014) (communication generated because of technical feature of electronic social media service is communication by the service, not the lawyer). However, a lawyer who engages in repetitive viewing of a person’s social network presence so as to generate multiple notifications from the network may be in violation of Rule 4.4(a). That rule prohibits a lawyer from using means that have no substantial purpose other than to embarrass, delay, or burden a third person, and from using methods of obtaining evidence that violate the legal rights of such a person.

Lawyers may view the public portion of a person’s social network presence. However, the lawyer may not engage in repetitive viewing of a person’s social network presence if doing so would violate Rule 4.4(a).

Inquiry #2:

May a lawyer use deception to access a restricted portion of a person’s social network presence?

Opinion #2:

No. Lawyers must never use deception, dishonesty, or pretext to gain access to a person’s restricted social network presence. Rules 4.1 and 8.4(c). When seeking access to a person’s restricted social network presence, a lawyer must not state or imply that he is someone other than who he is or that he is disinterested. Furthermore, lawyers may not instruct a third party to use deception.

Inquiry #3:

May a lawyer, using his true identity, request access to the restricted portions of an unrepresented person’s social network presence?

Opinion #3:

Yes. A lawyer’s duty of competent and diligent representation under Rules 1.1 and 1.3 encompasses the use of readily available forms of informal discovery. A lawyer who seeks informal discovery may request the same access to an unrepresented person’s social network presence that is available to any nonlawyer, as long as the lawyer uses his true identity and does not engage in deception or dishonesty. The person contacted is free to accept, reject, or ignore the request, or to ask for additional information. If the unrepresented person asks the lawyer for additional information, the lawyer must accurately provide the information or withdraw the request.

Rule 4.3(b) provides that a lawyer, in dealing on behalf of a client with a person who is not represented by counsel, shall not “state or imply that the lawyer is disinterested.” In addition, 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.”

By simply requesting access, the lawyer does not violate Rule 4.3. A lawyer who requests access is not making any statement, nor is he implying disinterest. See Oregon State Bar, Formal Opinion No. 2013-189 (2016 Revision) (“A simple request to access nonpublic information does not imply that Lawyer is ‘disinterested’ in the pending legal matter.”). The person contacted has full control over who views the information on her social network site. A grant of the lawyer’s request, without additional inquiry, does not indicate a misunderstanding of the lawyer’s role.

Inquiry #4:

May a lawyer, using his true identity, request access to the restricted portions of a represented person’s social network presence?

Opinion #4:

No. During the representation of 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 by court order. Rule 4.2(a). Rule 4.2 contributes to the proper functioning of the legal system by protecting a person who has chosen to be represented by a lawyer in a matter against possible overreaching by other lawyers who are participating in the matter, interference by those lawyers with the client-lawyer relationship and the uncounseled disclosure of information relating to the representation. Rule 4.2, comment [1].

Unless the lawyer has obtained express consent from the represented person’s lawyer, the request interferes with the attorney-client relationship and could lead to the uncounseled disclosure of information relating to the representation. Therefore, requesting access to the restricted portions of a represented person’s social network presence is prohibited unless the lawyer obtains consent from the person’s lawyer. Furthermore, the lawyer may not direct a third party to request access to restricted portions of a represented person’s social network presence. See Rule 8.4(a).

Inquiry #5:

May a lawyer request or accept information from a third party with access to restricted portions of a person’s social network presence?

Opinion #5:

Yes. Nothing in the Rules of Professional Conduct prevents a lawyer from engaging in lawful and ethical informal discovery such as communicating with third party witnesses to collect information and evidence to benefit a client. Witnesses who have obtained information from the restricted portions of a person’s (represented or unrepresented) social network presence are no different in this regard than any other witness with information relevant to a client’s matter. Therefore, when a lawyer is informed that a third party has access to restricted portions of a person’s social network presence and can provide helpful information to the lawyer’s client, the lawyer is not prohibited from requesting such information from the third party or accepting information volunteered by the third party. Similarly, a lawyer may accept information from a client who has access to the opposing party’s or a witness’s restricted social network presence.

However, the lawyer may not direct or encourage a third party or a client to use deception or misrepresentation when communicating with a person on a social network site. See Opinion #2.