Ethically Managing Your Online Presence

By Elizabeth Aspinall


A lawyer’s online presence can be an effective marketing boost and research tool, or an ethical trap, engaging the competence, professional responsibility and advertising provisions of the Code of Conduct. 

The Code (Rule 3.1-1) stipulates that a competent lawyer has the knowledge, skills and attributes appropriate for each client file. Competent use of technology, including social media, is an implied element of the rule. 

Social media is one element of a lawyer’s online presence. LSO v Guo, 2019 ONLSTH 46 (Guo) and LSO v Forte, 2019 ONLSTH 9 (Forte) illustrate the dangers of using social media without heeding professional responsibility. Guo, a good character hearing for a student, arose from Guo’s use of social media. In her posts, she was “insulting, impudent and rude,” making offensive comments about lawyers, prosecutors, court clerks, the police, justices of the peace, clients and judges. Some of her posts contained confidential information about clients. Her principal, Forte, was found guilty of professional misconduct for failing to supervise her, and for engaging in improper marketing. The panel held Forte “should have taken steps to become conversant enough with social media to be able to effectively supervise his student’s use of it in connection with his practice.”

Client confidentiality, the cornerstone of the solicitor-client relationship, can easily be breached if a lawyer posts about individual cases. The Code states that, with limited exception, a lawyer must maintain client information in strict confidence (Rule 3.3-1). A lawyer who posts about clients on a firm-related or personal website risks breaching the client’s confidentiality, even where the lawyer believes the post is adequately sanitized of information that may identify the client. A lawyer should not make public communications about a client for marketing purposes without client consent. Even posts only to “friends” can be public enough to breach confidentiality. 

Social media also creates temptations for lawyers investigating opposing parties. Private social media accounts may contain a treasure trove of evidence, if only a lawyer could access it without risk of spoliation by the opposing party! That potential risk does not create an exception to the usual means by which lawyers access an opposing party’s relevant and material records, namely, affidavits of records and if necessary an application for a further and better affidavit of records. 

It may be tempting to create a fictional social media account and “friend” the opposing party to access their private postings (and thereby head-off any risk of spoliation). Where the opposing party is represented, this breaches the rule that a lawyer must not approach, communicate or deal with an opposing party, except with their lawyer’s consent (Rule 7.2-8). Using deception to communicate with an opposing party also breaches Rule 2.1, which specifies that “a lawyer has a duty to carry on the practice of law and discharge all responsibilities to clients, tribunals, the public and other members of the profession honourably and with integrity.” 

It is ethical to investigate facts on social media by an informal search for information in support of or in defence of a claim. Competence and the duty to resolutely pursue and protect a client’s interests may require such investigation. It is permissible to access information on a party’s public profile by “friending” a third party who is already a “friend” of that party. It is, however, impermissible to use a third party (e.g., a staff member or investigator) to directly “friend” the opposing party using a real or fake account — doing so is the lawyer indirectly doing what they cannot do directly. 

Less clear is using a platform (e.g., LinkedIn) where notifications may be sent to the person whose profile has been viewed. A party has a lesser expectation of privacy with respect to social media content relevant to claims or defences, particularly when the content is public. However, knowledge that a lawyer has accessed an opposing party’s account may have a chilling effect on the litigation. The lawyer engaging in social media research should set their preferences so that the opposing party does not receive a notice that the lawyer accessed their profile. 

Accessing social media profiles is one side of the coin. The flip side is that, as with all material and relevant records, the lawyer has an obligation to advise their client to preserve the evidence and not destroy any evidence that may undermine the client’s case. Deleting unhelpful social media information is spoliation. 

In the American case Lester v Allied Concrete Co, 736 SE (2d) 699 (2013) (Va.Sup.Ct) a lawyer advised his client to “clean up” his Facebook account to destroy evidence detrimental to the claim. The client first deleted photographs, then deleted his Facebook account, and then swore that he did not have a Facebook account. The Court sanctioned the lawyer and client, ordering them to pay $542,000 and $180,000 respectively to cover the Defendant’s attorney's fees and costs in addressing the spoliation. The lawyer was also suspended.

Lawyers must keep pace with the use of technology, including tools like social media, in their practices. However, using technology without regard to the broader ethical rules can make practice a mine field. Practice advisors are happy to speak with lawyers about the challenges which technology may pose.


Elizabeth Aspinall is a Practice Advisor and the Equity Ombudsperson at the Law Society of Alberta. Prior to joining the Law Society, she practiced at JSS Barristers in Calgary. Elizabeth is a member of the CBA Alberta Editorial and Equality, Diversity & Inclusion Committees.