Legal Ethics and Social Media Investigation
Since 2009, seven (7) bar association ethics committees have issued opinions regarding the
ethics of social media investigations. The New York State Bar Association also addressed this
issue in its March 2014 Social Media Ethics Guidelines. State courts have not yet spoken on the
ethical issues raised herein.
Among bar associations, the general consensus seems to be that lawyers can view public
information on a social networking page but cannot request access to private information using a
fake identity—i.e., send a friend request using a made-up name or impersonating someone else.
Bar associations are divided on the ethics of requesting access to private information using the
lawyer’s real name. In New York State, New York City, and Oregon, a real-name friend request
does not involve deceit and is thus permissible. On the contrary, a real-name friend request with
nothing else is deceptive and impermissible in Philadelphia, San Diego, New Hampshire, and
Massachusetts. In these jurisdictions, a lawyer must also include other identifying information,
such as her role in the litigation, her client’s name, the subject of the litigation, and her reason for
seeking access to the person’s private profile. Additionally, several jurisdictions note that a
lawyer can only send a friend request when she has no knowledge that the friend request
recipient is represented by counsel.
The rules that apply to lawyers generally also apply to third parties acting at the direction of the
lawyer. In other words, if a lawyer cannot send a friend request without disclosing her identity
and purpose, neither can her agent.
Public vs. Private Social Networks
Before diving into the ethics of social media investigations, a brief primer on the distinction
between public and private information on social networks may be useful.
Examples of social networks include Facebook, Twitter, MySpace, Instagram, YouTube,
LinkedIn, and various blogging platforms. In each network, the user creates an account or
profile. The user can then customize privacy settings to make that account or profile public or
private. Public information is either available to the general public—and can be found through a
Google search, for instance—or available to everyone on that social network. Private
information is available only to individuals who have specifically requested to friend (Facebook,
Myspace), follow (Twitter, Instagram), subscribe to (YouTube), or connect with (LinkedIn) the
user. Moving forward, this document will refer to such requests as “friending” the user or
sending a “friend request” to the user.
Discussion
What is “legal” and what is “ethical” are not always the same thing. In social media
investigation, what is legally permissible can still get a lawyer into trouble with bar counsel.
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RELEVANT LEGAL PRINCIPLES
It may not be a violation of the Fourth Amendment for police to ask third party “friends” to share
information as informants.
United States v. Meregildo, 883 F.Supp.2d 523 (S.D. New York 2012)
“Where Facebook privacy settings allow viewership of postings by ‘friends,’ the Government
may access them through a cooperating witness who is a ‘friend’ without violating the Fourth
Amendment. Cf. United States v. Barone, 913 F.2d 46, 49 (2d Cir.1990) (finding that a person
does not have a legitimate privacy expectation in telephone calls recorded by the Government
with the consent of at least one party on the call.) While Colon undoubtedly believed that his
Facebook profile would not be shared with law enforcement, he had no justifiable expectation
that his “friends” would keep his profile private. Cf. Barone, 913 F.2d at 49. And the wider his
circle of “friends,” the more likely Colon's posts would be viewed by someone he never expected
to see them. Colon's legitimate expectation of privacy ended when he disseminated posts to his
‘friends’ because those ‘friends’ were free to use the information however they wanted—
including sharing it with the Government. Cf. Guest, 255 F.3d at 333 (finding that an e-mail
sender—like a letter writer—loses their expectation of privacy upon delivery). When Colon
posted to his Facebook profile and then shared those posts with his ‘friends,’ he did so at his
peril. Because Colon surrendered his expectation of privacy, the Government did not violate the
Fourth Amendment when it accessed Colon's Facebook profile through a cooperating witness.”
What is permissible under the Fourth Amendment for police may be different than what is
ethical for attorneys and their investigators. Therefore, defenders must consider their state
rules and ethics opinions carefully before proceeding. Here are some general guidelines:
Questions Involved
In the context of social media investigation ethics, several questions arise, though not every
ethics committee has touched on every question:
 Is it okay if I or my investigator uses my client’s account to look at the client’s
friends/followers? – Probably.
o If you client has access, it shouldn’t be a violation for you to look too.
o However, if the lawyer or investigator goes beyond simply looking to actively
engaging with people in a social network, the lawyer then becomes subject to the
rules on communicating with represented and non-represented parties.
 Is it okay to use my client’s account to friend potential witnesses? – It depends.
o If you’re client is “friending” at your direction in order to investigate the case,
some states may see him as akin to the lawyer’s agent, and thus you susceptible to
sanction for your clients actions.
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

o Other states may take a more protective lawyer-client view, given the greater
ethical leeway some jurisdictions give to lawyers representing criminal and
delinquency clients.
o If your client is acting on his or her own, and then shares that information with
you, most jurisdictions will probably see that as okay.
Can I tell my client to delete information, photos, or an entire account? – Probably
not.
o Most jurisdictions will see this as being akin to destruction of evidence, which is
not only unethical, it may subject you to criminal charges.
o In jurisdictions with broad defense discovery obligations, placing material that is
subject to disclosure out of your reach may also be a violation.
o Telling your client to change the privacy settings on accounts, however, may be
acceptable in many jurisdictions, depending on how the state construes the term
“conceal” in Rule 3.4(a) in conjunction with Rule 3.4(f). The “evidence” is not
destroyed; it is simply placed somewhere non-public. This information may still
be subject to subpoena or discovery requirements and may, therefore, be subject
to disclosure.
Is it okay to set up a fake “dummy” account for investigation purposes? Probably
not.
o If the account does not contain the lawyer’s or investigator’s true name, it is
probably a violation.
o Even if the true name is included, some states require that any contact made must
also include an expressed explanation of the true nature of your legal interest in
making the communications.
RELEVANT MODEL RULES OF PROFESSIONAL CONDUCT
Each of the Rules below is an expert from the Model Rules of Professional Conduct. Each
State’s Rules may differ slightly from those below. Every lawyer should consult his or her
specific state Rules (and their commentary) for greater clarity on any given issue.
Rules about False Statements and Destruction of Evidence
These are the rules implicated when a lawyer sends a friend request to a party or witness (1)
using a fake name, (2) using the lawyer’s real name but without disclosing the purpose for
seeking access to the individual’s private social networking profile, or (3) advises a client to
delete content on a social media account.
Rule 8.4: Misconduct
It is professional misconduct for a lawyer to:
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(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
Rule 4.1: Truthfulness in Statements to Others
In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person; or
(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid
assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by
Rule 1.6.
RULE 3.4 FAIRNESS TO OPPOSING PARTY AND COUNSEL
A lawyer shall not:
(a) unlawfully obstruct another party' s access to evidence or unlawfully alter, destroy or
conceal a document or other material having potential evidentiary value. A lawyer
shall not counsel or assist another person to do any such act;
(b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement
to a witness that is prohibited by law;
(c) knowingly disobey an obligation under the rules of a tribunal except for an open
refusal based on an assertion that no valid obligation exists;
***
(f) request a person other than a client to refrain from voluntarily giving relevant
information to another party unless:
(1) the person is a relative or an employee or other agent of a client; and
(2) the lawyer reasonably believes that the person's interests will not be
adversely affected by refraining from giving such information.
Rules about Agents
These are the rules implicated when a lawyer asks a third party to send a friend request to the
individual, rather than sending the lawyer personally sending the friend request.
Rule 5.3: Responsibilities Regarding Non-Lawyer Assistant
With respect to a non-lawyer employed or retained by or associated with a lawyer:
(c) a lawyer shall be responsible for conduct of such a person that would be a violation of
the Rules of Professional Conduct if engaged in by a lawyer if:
(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the
conduct involved;
Rule 8.4: Misconduct
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;
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Rules about Communication with Non-Clients
These are the rules implicated when a lawyer sends a friend request to an opposing party or
witness who either is or is not represented by counsel.
Rule 4.2: Communication with Person Represented by Counsel
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.
Rule 4.3: Dealing with Unrepresented Person
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, other than the advice
to secure counsel, if the lawyer knows or reasonably should know that the interests of
such a person are or have a reasonable possibility of being in conflict with the interests of
the client.
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ETHICS OPINIONS BY JURISDICTION
This chart summarizes the general conclusions of each ethics opinion:
BAR
ASSOCIATION
PUBLIC
INFORMATION
Philadelphia
NA*
New York State†
Ethical
New York City
NA
San Diego
NA
Oregon
Ethical
New Hampshire
Ethical
Massachusetts
NA
PRIVATE INFORMATION
Fake Friend
Third Party Request
Request
NA
NA
Ethical
(but must disclose
true intent)
Ethical (no need to
Not Ethical
Ethical
disclose true intent)
(no need to disclose
true intent)
Ethical (no need to
Not Ethical
Ethical
disclose true intent)
(no need to disclose
true intent)
Ethical (but must
NA
NA
disclose true intent)
Ethical (if person is
Not Ethical
Ethical
unrepresented)
(exception for
(lawyer can advise
(no need to disclose
violation of civil
and supervise lawful
true intent unless
laws, criminal laws, cover activity when
person asks)
or constitutional
exception applies)
rights)
Ethical (if person is
NA
Ethical
unrepresented)
(but must disclose
(but must disclose
true intent)
true intent)
Ethical (if person is
NA
NA
unrepresented)
(but must disclose
true intent)
Real Friend Request
*
NA = Not Addressed in the opinion.
This chart includes information from New York’s 2010 ethics opinion and its 2014 Social Media Ethics
Guidelines.
†
Philadelphia (2009)
In 2009, the Philadelphia Bar Association’s Professional Guidance Committee was the first to
address social media investigation ethics. See Phila. Bar Ass’n, Prof’l Guidance Comm., Op.
2009-02 (Mar. 2009), http://www.philadelphiabar.org/WebObjects/PBAReadOnly.woa/
Contents/WebServerResources/CMSResources/Opinion_2009-2.pdf. Responding to an inquiry,
the opinion clarified whether a lawyer can direct a third party to friend an adverse witness using
the third party’s real name but without revealing his connection to the lawyer and his intent to
search her social network profiles for impeachment evidence. See Op. at 1.
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The Committee concluded that the friend request would violate Model Rules of Professional
Conduct 8.4(c) and 4.1(a),1 which respectively prohibit a lawyer from “engag[ing] in conduct
involving dishonesty, fraud, deceit or misrepresentation” and from “knowingly . . . mak[ing] a
false statement of material fact or law to a third person.” Op. at 3–4. In the Committee’s
opinion, even if the third party uses his real name in the friend request, the communication would
nevertheless be deceptive and false because it would omit the “highly material fact” of the third
party’s true intent for friending the witness—namely, that he seeks access to the witness’s profile
for the purpose of obtaining information and sharing it with the lawyer to use when impeaching
the witness. Op. at 3.
The third party’s involvement in the friend request would further violate Rules 5.3(c)(1) and
8.4(a). Op. at 2, 4. Rule 5.3(c)(1) holds a lawyer responsible for the conduct of a nonlawyer that
the lawyer orders or knowingly ratifies. Rule 8.4(a) prohibits a lawyer from knowingly assisting
or inducing another person to violate the Rules and from violating the rules herself through the
acts of another. If a lawyer asks a third party to friend the witness, the lawyer would “plainly
[be] procuring the conduct,” Op. at 1, and violating ethical rules through the conduct of that third
party, Op. at 4.
The Committee also raised Rule 4.3, which prohibits a lawyer from stating or implying that she
is disinterested when dealing with a person who is not represented by counsel. Op. at 4 n.1. The
Committee concluded that its scenario did not violate Rule 4.3 because the rule contemplates a
scenario where the unrepresented person knows she is dealing with a lawyer but misunderstands
the lawyer’s role or interest in the case. Op. at 4 n.1. In the Committee’s scenario, the witness
receiving the third-party friend request would not know she was dealing with a lawyer. Op. at 4
n.1.
New York State (2010)
In 2010, the New York State Bar Association Committee on Professional Ethics considered
whether a lawyer can view and access public information on a party’s Facebook and Myspace
profiles to search for information to use in the lawsuit, such as impeachment evidence. N.Y.
State Bar Ass’n, Comm. on Prof’l Ethics, Op. 843 (Sept. 10, 2010), http://www.nysba.org/
CustomTemplates/Content.aspx?id=5162.
The Committee began by distinguishing these facts from those before the Philadelphia Bar
Association: there, a lawyer sought to access private information through a friend request; here,
a lawyer sought to access public information. Op. ¶¶ 4–5. Because public information does not
Where possible, I will discuss ethical opinions in the framework of the ABA’s Model Rules of
Professional Conduct, rather than the specific ethical rules of each state. Where the state rules
and ABA rules differ, I will make a note.
1
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require a friend request, the lawyer need not engage in deception to access the individual’s social
network profiles, so these facts did not implicate Rule 8.4. Op. ¶ 5.
The Committee concluded, “[A] lawyer may ethically view and access the Facebook and
MySpace profiles of a party other than the lawyer’s client in litigation as long as the party’s
profile is available to all members in the network and the lawyer neither ‘friends’ the other party
nor directs someone else to do so.” Op. ¶ 5.
New York State Guidelines (2014)
In March 2014, the New York State Bar Association issued a set of Social Media Ethics
Guidelines, which provides additional guidance on permissible and impermissible
conduct. N.Y. State Bar Ass’n, Social Media Ethics Guidelines (2014),
http://www.nysba.org/workarea/DownloadAsset.aspx?id=47547.
Guideline 3.A permits a lawyer to view public information on a person’s social
networking profile, regardless of whether that person is represented by counsel.
Guideline 3.B permits a lawyer to send a friend request to an unrepresented party if the
lawyer uses her full name. She need not disclose any additional information in the friend
request, but if the person requests additional information, the lawyer must accurately
provide that information or withdraw her request. A lawyer may not use a fake name or
fake profile to mask her identity.
Guideline 3.C prohibits a lawyer from friending a represented party unless that person
gives express authorization.
Guideline 3.D provides that a lawyer may not engage in any prohibited conduct indirectly
through an agent, such as the lawyer’s investigator, legal assistant, secretary, or even
client.
New York City (2010)
The New York City Bar Association Committee on Professional Ethics issued an opinion in
2010 directly contradictory to the Philadelphia Bar Association’s 2009 opinion. See Ass’n of the
Bar of the City of New York, Committee on Prof’l Ethics, Formal Op. 2010-2 (Sept. 2010),
http://www.nycbar.org/pdf/report/uploads/20071997-FormalOpinion2010-2.pdf.
Deciding whether a lawyer—directly or through an agent—can friend an unrepresented person,
Op. at 1, the Committee concluded that a lawyer (or her agent) can send a friend request without
disclosing her reasons for making the request, as long as she uses her real name. Op. at 2
(“While there are ethical boundaries to such ‘friending,’ in our view they are not crossed when
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an attorney or investigator uses only truthful information to obtain access to a website, subject to
compliance with all other ethical requirements.”). This opinion was informed by the New York
Court of Appeals’ policy in favor of informal discovery. See Op. at 2.
The Committee draws the line at fake profiles, however. A lawyer may not send a friend request
using a fake name and profile, such as by falsely portraying herself as a former classmate,
prospective employer, or friend of a friend. Op. at 3. This would violate Rules 8.4(c) and 4.1.
Op. at 3. Furthermore, a lawyer may not employ a third party to deceptively send a friend
request, which would violate Rules 5.3(c)(1) and 8.4(a). Op. at 3.
San Diego (2011)
In 2011, the San Diego County Bar Legal Ethics Committee voiced its support for the
Philadelphia opinion and its disagreement with the New York City opinion. See San Diego Cty.
Bar Ass’n, Legal Ethics Op. 2011-2 (May 24, 2011), https://www.sdcba.org/
index.cfm?pg=LEC2011-2.
The Committee concluded that a lawyer should not friend someone involved in the case “without
disclosing his affiliation and purpose for the request,” as this would violate California’s
equivalent of Rules 8.4(c) and 4.1(a). Op. at Part B. The committee noted, however, that
nothing would preclude the attorney’s client from friending an opposing party or potential
witness. Op. at Part B.
Oregon (2013)
The Oregon State Bar issued an ethical opinion in 2013. See Or. State Bar, Formal Op. 2013189 (Feb. 2013), https://www.osbar.org/_docs/ethics/2013-189.pdf.
In Oregon, a lawyer may access public information on a social networking profile because
viewing a person’s public profile is no different from reading a magazine article or a book
published by that person. Op. at 578.
As to private information, however, a lawyer may send a friend request as long as she has no
actual knowledge that the person is represented by counsel. Op. at 579. The lawyer must be
mindful of Rule 4.3 and refrain from stating or implying that she is disinterested. Op. at 579.
When sending a friend request, a lawyer “may not engage in subterfuge designed to shield [her]
identity from the person when making the request,” Op. at 581—with one exception. Under
Oregon Rule of Professional Conduct 8.4(b), a lawyer may supervise “lawful covert activity in
the investigation of violation of civil or criminal law or constitutional rights,” as long as the
lawyer’s conduct is otherwise in compliance with ethical rules. Op. at 581. In other words, a
lawyer generally cannot send a friend request using a fake name (or supervise this kind of
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deception) but can do so when investigating violations of civil laws, criminal laws, and
constitutional rights.
New Hampshire (2013)
The New Hampshire Bar Association Ethics Committee issued an advisory opinion in 2013. See
N.H. Bar Ass’n, Ethics Comm., Advisory Op. 2012-13/05 (June 20, 2013),
http://www.nhbar.org/legal-links/Ethics-Opinion-2012-13_05.asp.
In New Hampshire, a lawyer may view public information on a social network profile, regardless
of whether the person is represented by counsel, because simply viewing a public page does not
constitute a “communication” under Rules 4.2 and 4.3.
If a lawyer wishes to access private information by friending a witness, the first inquiry is
whether the witness is represented by counsel. If so, the lawyer may not communicate with the
witness outside of Rule 4.2. Op. at 3. If not, the lawyer may send a friend request using her real
name, informing the witness of her involvement in the case, and identifying her client and the
matter in litigation. Op. at 3. A friend request providing only the lawyer’s (or her agent’s) name
violates Rules 8.4(c) if the lawyer knows that the witness may not recognize her name. Op. at 3.
It further violates Rule 4.1(a) because a name-only friend request creates the impression that the
lawyer is disinterested, which constitutes a false statement of material fact. Op. at 3. On this
point, the Committee agrees with the opinions from Philadelphia and San Diego and disagrees
with the opinion from New York City. Op. at 3–4.
Under no circumstance may a lawyer friend a witness using a fake name. Op. at 2. Rule 4.1
prohibits a lawyer from making a false statement of material fact, which encompasses false
statements about the lawyer’s identity and purpose in contacting the witness. Op. at 2. For the
same reasons, a lawyer may not use someone else’s account to friend the witness or direct a third
party to friend the witness, unless the third party identifies himself, the lawyer, the client, and the
cause in the litigation. Op. at 2–3.
The Committee noted, however, that no rule prohibits the client from friending the witness—as
long as the client’s account reasonably reveals his identity to the witness—and then sharing
information from the witness’s profile with the lawyer. Op. at 3. Similarly, no rule prohibits a
lawyer from receiving information obtained by a third party who gained access to the witness’s
social networking profiles not at the behest of the lawyer. Op. at 4.
Massachusetts (2014)
The Massachusetts Bar Association is the latest to issue an opinion on the ethics of social media
investigation. See Mass. Bar Ass’n, Ethics Op. 2014-5 (May 8, 2014),
http://www.massbar.org/publications/ethics-opinions/2010-2019/2014/opinion-2014-5. This
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opinion contemplates a scenario where—prior to filing suit—a lawyer seeks to gain access to the
social networking profile of a potential opposing party and the lawyer has no knowledge that the
party is represented by counsel. Op. at 1.
In this scenario, the lawyer may send a friend request only if she discloses her identity as the
plaintiff’s lawyer. Op. at 1 (disagreeing with the Oregon State Bar’s opinion that “the burden
should be on the unrepresented party to ask about the inquirer’s purpose rather than on the
lawyer to disclose her identity and/or purpose”). If the lawyer learns at any point that the
potential opposing party is represented by counsel, then the lawyer must conform her conduct to
Rule 4.2. Op. at 1.
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