Last week, I discussed issues around viewing a represented party’s social media pages. This week, we’ll look at the ethical way lawyers can contact unrepresented people via social media.
A lawyer’s communications with an unrepresented person are generally governed by Rule of Professional Conduct 4.3 or some similar equivalent. (See, e.g., Georgia Rule 4.3). Most versions of Rule 4.3:
- prohibit a lawyer from stating or implying that the lawyer is disinterested;
- require a lawyer to make reasonable efforts to correct any misunderstanding, when the lawyer knows or should know that the unrepresented person misunderstands the lawyer’s role in the matter; and
- prohibit a lawyer from giving advice other than the advice to secure counsel, if he or she knows or should know that the person’s interests are or might be in conflict with the interests of the lawyer’s client.
A contact that violates Rule 4.3 is prohibited, whether made through social media or any other form of communication.
General Guidelines Regarding Social Media Contacts With An Unrepresented Person
Assuming a communication does not violate your jurisdiction’s version of Rule 4.3, here are general guidelines related to contacting unrepresented people via social media:
- You may communicate with an unrepresented person or witness and also request permission to view a restricted portion of the person’s social media profile. But you cannot use deception. (Philadelphia; Kentucky; Oregon; New York City Bar; San Diego County Bar).
- You must use your full name and an accurate profile, and may not create a different or false profile to hide your identity.
- In most jurisdictions, you probably must also state your purpose for the request. (yes – New Hampshire; Philadelphia; Massachusetts; no – New York)
- If the unrepresented person or witness asks for additional information in response to a communication or access request, you must accurately provide the information requested or stop all further communications and withdraw the request, if applicable.