Under the smattering of ethics opinions and secondary guidance that currently exist, intuitive and common uses of popular social media sites by lawyers seeking information through informal discovery are either prohibited or considered ethically questionable enough so as to chill their use. For example, one local bar association has concluded that lawyers may not seek access to non-public information posted by other litigants on Facebook, either because the automatically generated “friend” request message is an ethically impermissible “communication” with a represented party, or because such a message does not explicitly disclose the motives of the request to an unrepresented party.

The act of clicking the “follow” button on another party’s Twitter page, which normally generates an automatic email notification, could also be ethically impermissible, even though millions of people “follow” public figures and friends on Twitter. Viewing the resumes of friends and strangers alike on a site like LinkedIn is a widely accepted practice in professional circles, yet if a lawyer views a litigant’s page, that too generates a notification message which could conceivably constitute an impermissible “communication.”