A litigator can look at the publicly-available social media profile of an opposing party or witness on Facebook or other social media sites with no legal complications, even if the party or witness is represented by counsel. Ethical problems can arise, however, when litigators seek to use other methods to obtain information posted on social media sites that is subject to restricted access only by “friends” or others designated by the account holder.
If the opposing party is represented by counsel, a lawyer (or the lawyer’s agent) should not communicate directly with the opposing party to request access to restricted content on a social media site. If that party is not represented by counsel, a May 2017 ethical guidance from the New York State Bar (which surveyed ethics opinions elsewhere) states that the lawyer may request access to the restricted portions but, must (a) use the lawyer’s full name and an accurate profile that does not mask the lawyer’s identity, and (b) respond truthfully if the opposing party makes inquiries about the nature of the lawyer’s interest. (See www.nysba.org/FEDSocialMediaGuidelines). Some states’ bar authorities have issued ethics opinions that require greater disclosures when counsel initially requests access to restricted portions of social media content from an unrepresented person.
