Careers

Diversity, Equity & Inclusion

Experience

Innovation

Interactive Maps

Locations

About

Pages

Meet our team of innovators
Ask us how we do it

Professionals

Insights

Services

Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 11 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

Home | Thompson Hine LLP

Atlanta

Chicago

Cincinnati

Cleveland

Columbus

Dayton

Los Angeles

Minneapolis

New York

Silicon Valley

Washington, D.C.

<img style="max-width: 100%;height: auto" width="263" height="347" src="https://www.thelawforlawyerstoday.com/wp-content/uploads/sites/1019/2019/10/Courthouse-columns.jpg" class="attachment-lxb_af_3_of_4-wide size-lxb_af_3_of_4-wide wp-post-image" alt="" loading="lazy" />
			We recently <a href="https://www.thelawforlawyerstoday.com/2025/11/7-key-ethics-rules-for-using-social-media-in-business-development/">discussed</a> the ethics rules that lawyers must bear in mind when trying to attract new clients through social media channels. Practitioners may find it difficult to avoid social media in their daily practice. There are many traps for the unwary when using social media in the context of litigation. It is worthwhile for all lawyers, especially litigators, to review the ABA&rsquo;s handy chart outlining their <a href="https://www.americanbar.org/groups/professional_responsibility/policy/rule_charts/">jurisdiction&rsquo;s interpretations</a> of these Rules.&nbsp; Running afoul of ethical guidelines can lead to disciplinary problems for the lawyer, but it can also be damaging to your client&rsquo;s interests if it happens in the midst of litigation.
1. Trial Publicity
<a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_3_6_trial_publicity/">Rule 3.6</a> is violated when lawyers participating in litigation or investigation of a matter make extrajudicial statements they should know will be disseminated publicly and are likely to materially prejudice an adjudicative proceeding. An <a href="https://ilcourtsaudio.blob.core.windows.net/antilles-resources/resources/ebab997d-8a2f-464a-a482-c7231d883f19/Kroft%20v.%20Viper%20Trans,%20Inc.,%202025%20IL%20App%20(1st)%20240220.pdf">Illinois appellate court</a> recently set aside a $43 million dollar Plaintiffs&rsquo; verdict and ordered a new trial due to the plaintiff&rsquo;s attorneys blog and social media posts about jurors during the trial.&nbsp; The posts, titled &ldquo;What Jurors Should Know But Don&rsquo;t,&rdquo; talked about the case and other matters that they claimed were hidden from the jury.
2. Communications with Jurors
Lawyers must also understand the parameters of permissible jury interaction. <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_3_5_impartiality_decorum_of_the_tribunal/">Model Rule 3.5</a> generally prohibits lawyers from having ex parte communications with jurors or prospective jurors. Lawyers are subject to restrictions even after the juror has been discharged. <a href="https://www.cobar.org/Portals/COBAR/Repository/committees/Ethics/Opinion%20127.pdf?ver=2019-11-01-135059-207">Colorado</a> warns that communications can be prohibited even if initiated by the juror.
What about indirect communications? A lawyer may want to view a juror&rsquo;s internet presence both before and during trial to ascertain attitudes that may not come out during voir dire. The <a href="https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/formal_opinion_466_final_04_23_14.pdf">ABA opines</a> that such research is permitted. However, a lawyer must avoid other direct or indirect communications with the juror. A lawyer is prohibited from requesting access to information the juror has not made available to the public &ndash; that includes making a friend request. Yet, the ABA says that Rule 3.5 would not be violated merely because the juror was notified by the platform&rsquo;s network that the lawyer was looking at his or her information. Such network notification would not be deemed a &ldquo;communication&rdquo; under the Rule.
<a href="https://www.dcbar.org/For-Lawyers/Legal-Ethics/Ethics-Opinions-210-Present/Ethics-Opinion-371">D.C.</a> shares the same view. But New York lawyers may need to be more cautious when viewing a juror&rsquo;s social media. A &nbsp;<a href="https://www.nycbar.org/wp-content/uploads/2023/05/20072303-FormalOpinion2012-02JuryResearchandSocialMedia.pdf">New York</a> ethics opinion concludes that if a lawyer knew the juror would be notified when the lawyer viewed their online presence (even if no friend request was made), and the lawyer viewed the jury&rsquo;s profile anyway, Rule 3.5 would be violated.
3. Truth!
Lawyers are prohibited from making false statements of material fact or law to third persons under <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_4_1_truthfulness_in_statements_to_others/">Rule 4.1</a>. This includes using trickery or deceit on social media. And doing so to obtain evidence, even if done by a nonlawyer agent, can violate this Rule.&nbsp; Numerous courts have excluded evidence obtained through dishonesty, and many states have identified the additional ethical concerns, including <a href="https://www.nycbar.org/pdf/report/uploads/20071997-FormalOpinion2010-2.pdf">New York</a>. Lawyers are advised to be straightforward when making the friend request or simply use formal discovery channels.
4. No contact with represented parties
<a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_4_2_communication_with_person_represented_by_counsel/">Rule 4.2</a> generally prohibits lawyers from communicating about the subject of the representation with a represented person in that matter. <a href="https://www.dcbar.org/For-Lawyers/Legal-Ethics/Ethics-Opinions-210-Present/Ethics-Opinion-371">DC</a> advised that lawyers are permitted to review a represented person&rsquo;s public social media, because viewing does not equate to a communication. Conversely, requesting access to private information, such as &ldquo;friend requesting&rdquo; a represented person, does constitute a communication and thus violates the Rule. Similarly, <a href="https://storage.googleapis.com/msgsndr/Rgd68xOkcVdteTsBkf6O/media/66a7ea7dc87f33d3e149ff03.pdf">West Virginia</a> has opined that lawyers may not friend request represented individuals.
Rule 4.2 (and Rule 4.3) would be violated in <a href="https://nhba.s3.amazonaws.com/wp-content/uploads/2020/01/14111334/2012-13-05-REFORMATTED-Social-Media-Contact-with-Witnesses-in-the-Course-of-Litigation.pdf">New Hampshire</a> where a lawyer, their investigator, or nonlawyer assistant sought a witness&rsquo;s permission to view non-public social media information unless the witness was not represented by counsel and the request identifies the lawyer and the lawyer&rsquo;s involvement in the matter. <a href="https://www.cobar.org/Portals/COBAR/Repository/committees/Ethics/Opinion%20127.pdf?ver=2019-11-01-135059-207">Colorado</a> concluded that lawyers can advise clients on permissible social media communications the client may have with another represented party. However, the lawyer may not use the client to communicate with a represented party to bypass Rule 4.2.
5. Contacting Unrepresented Individuals
Lawyers must be wary of <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_4_3_dealing_with_unrepresented_person/">Rule 4.3</a> when contacting unrepresented individuals, especially adverse parties. <a href="https://www.dcbar.org/For-Lawyers/Legal-Ethics/Ethics-Opinions-210-Present/Ethics-Opinion-371">DC</a> notes that this Rule applies in social media investigations. While viewing an individual&rsquo;s publicly available social media accounts is not a communication and consequently falls out of the Rule, DC warns lawyers that requesting private social media information triggers Rule 4.3. In this context, lawyers must say who they are, state that they&rsquo;re lawyers, and name their client and the matter.
<a href="https://www.osbar.org/_docs/ethics/2013-189.pdf">Oregon</a> permits its lawyers to view public and private social media information of an unrepresented party, but lawyers are cautioned not to state or imply they are disinterested. Lawyers must also correct any misunderstanding as to the lawyer&rsquo;s role. Simply &ldquo;friend requesting&rdquo; an unrepresented person does not suggest the lawyer is disinterested.
<a href="https://storage.googleapis.com/msgsndr/Rgd68xOkcVdteTsBkf6O/media/66a7ea7dc87f33d3e149ff03.pdf">West Virginia</a> allows its lawyers to contact unrepresented individuals through social media, but the line is crossed where the lawyer uses a pretextual basis for viewing the unrepresented person&rsquo;s non-public social media. Accordingly, lawyers who use third parties to view an unrepresented person&rsquo;s privately restricted social media accounts could violate this Rule, as such friend request would be considered &ldquo;<a href="https://storage.googleapis.com/msgsndr/Rgd68xOkcVdteTsBkf6O/media/66a7ea7dc87f33d3e149ff03.pdf">pretextual&rdquo;.</a>&nbsp;
6. Misconduct
Lawyers engaging in deceitful or dishonest conduct will also run afoul of <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_8_4_misconduct/">Rule 8.4</a>, including when the conduct takes place over social media. Lawyers representing&nbsp; clients in a pending litigation, and who have access to the publicly accessible social media of another party, may review that party&rsquo;s pages to look for potential impeachment material, says <a href="https://nysba.org/wp-content/uploads/2010/09/Opn843pdf.pdf">New York</a>. But lawyers must not &ldquo;friend request&rdquo; that party or ask another person to do so.
Likewise, <a href="https://www.nycbar.org/pdf/report/uploads/20071997-FormalOpinion2010-2.pdf">New York</a> lawyers are cautioned that lawyers who &ldquo;friend request&rdquo; a person on social media under false pretenses to obtain evidence are in violation of Rule 8.4. Lawyers trying to circumvent the rule by asking an agent or investigator to do their dirty work will still be in violation of the Rule and will also be in violation of <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_5_3_responsibilities_regarding_nonlawyer_assistant/">Rule 5.3</a>.

6 Key Ethics Rules for Litigators Using Social Media

Services