As I’ve discussed before, lawyers have an ethical duty to understand social media. If they do not, they may, for example, leave important evidence undiscovered in litigation.
But just because social media sites may contain relevant evidence, does not mean lawyers can do anything to get it.
Lawyers need to be careful when seeking to view a represented party’s social media sites. Here are some guidelines:
Generally speaking, a lawyer may view the public portions of a represented party’s social media sites, profiles, and posts to obtain information about them, even if the lawyer intends to use that information for impeachment purposes in litigation. (New York City Bar; Colorado)
But keep in mind that some social media sites may send notices to their users informing them who has viewed their profiles, so they may become aware that you are poking around.
The law is unclear, but a represented party’s receipt of such an automatic notice might be considered an improper communication with someone who is represented by counsel. (maybe – New York City Bar; New York County Bar) (Maybe not – ABA; D.C.; Colorado)
Unless express consent has been given by a person’s counsel, a lawyer should not contact a represented person or request access to review restricted portions of the person’s social media profiles.
Use of Agents
In short, you can’t do indirectly, what you can’t do directly.
So don’t instruct someone to do the improper conduct above or knowingly ratify their improper conduct.
To be clear, a lawyer can’t hide behind an investigator, assistants, paralegal, staff, or other agents (See N.Y. City Bar; New Hampshire). And probably can’t ask a client to do it either. (See New Hampshire)