SPECIAL FEATURE Lawyers
the attorney should investigate the opposing
party through social media tools. ER 4. 2 (regarding communication with individuals represented by an attorney) and ER 4. 3
(working with unrepresented individuals) are two common ethical
issues for attorneys who use social media in litigation. 25
A 2005 Oregon ethics opinion provides guidance on discovery of information communicated through social media. 26 The
opinion specifically addresses the ethical implications of investigating a party’s website. Its reasoning, however, can apply to
investigations using Facebook, Twitter and other social media
forums. According to the Oregon ethics opinion, “Accessing an
adversary’s public website is no different from reading a magazine article or purchasing a book written by the adversary. … A
lawyer who reads information posted for general public consumption simply is not communicating with the represented
owner of the website.” 27 Similarly, investigating an opposing
party’s public Facebook account or blog is fair game pursuant to
the Oregon opinion, because the information is “for general
However, it is possible for an investigation to go too far. As a
New York ethics opinion instructs, in contrast to a public website
or an unsecured Facebook page, a lawyer cannot “gain access to
a social networking website under false pretenses, either directly
or through an agent.” 28 For example, it is impermissible for attorneys, or their agent, to “contact an unrepresented person
through a social networking website and request permission to
access her webpage to obtain information for use in litigation.” 29
An instructive social media policy regarding investigations
helps lawyers navigate what is and is not permissible conduct
when using social media in litigation.
Attorneys increasingly rely on social media to develop business,
network with colleagues, and further their practices. Accordingly,
they should embrace social media while thoughtfully adhering to
ethical obligations. Aware of these risks, it is incumbent on attorneys to develop and implement policies that will guide them in
the ethical and professional use of social media. AZ AT
1. Distinguishing between personal communications and advertisements in social
media can be tough. ‘If I get a substantial
verdict in a case and I put all the details of
the case on my Facebook page, is that
advertising or am I just communicating to
my 149 friends on Facebook?’” Steven
Seidenberg, Seduced: For Lawyers, the
Appeal of Social Media is Obvious. It’s Also
Dangerous, ABA J., Feb 1. 2011, available
2. See ER 7. 2, Rule 42, ARIZ.R.S.CT.
3. Seidenberg, supra note 1.
4. According to one author:
“Some experts … think the answer is
fairly clear. ‘A long series of ethics opinions [including ABA Formal Opinion
10-457 (2010) and Arizona Ethics
Opinion 97-04 (1997)] indicate that if
online activities promote a law practice,
it is attorney advertising,’ says Michael P.
Downey, a partner at Hinshaw &
Culbertson in St. Louis and a member
of the working group. ‘If I announce a
court victory on Twitter, it is an ad.
[But] if you blog and never mention
you’re a lawyer and never mention your
firm, it is probably not an ad.’”
Seidenberg, supra note 1.
5. Ariz. Ethics Op. No. 97-04 (1997).
6. See ABA Commission on Ethics 20/20
Working Group on the Implications of
New Technologies, Issues Paper
Concerning Client Confidentiality and
Lawyers’ Use of Technology, Sept. 20, 2010,
available at www.abanet.org/ethics2020/
at 3; Ariz. Ethics Op. No. 97-04; ABA
Formal Op. No. 10-457 (2010) (
addressing “some of the ethical obligations that
lawyers should address in considering the
content and features of their website.”).
7. Ariz. Ethics Op. No. 97-04.
9. See also Catherine J. Lanctot, Attorney–
Client Relationships in Cyberspace: The
Peril and the Promise, 49 DUKE L. J. 147,
159 n. 28 (1999), available at
Duke+L.+J.+147#B28 (citing several state
bar opinions that discuss the ethical issues
at play when attorneys provided advice
10. See Seidenberg, supra note 1; Debra
Cassens Weiss, Blogging Assistant PD Gets
60-Day Suspension for Posts on Little-Disguised Clients, ABA J., May 26, 2010,
available at www.abajournal.com/
11. Weiss, supra note 10.
13. Mike Frisch, Blogging PD Suspended,
LEGAL PROFESSION BLOG, May 22, 2010,