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Pretrial Practice & Discovery

Ethics of Using Social Media During Case Investigation and Discovery

By Seth I. Muse – June 13, 2012


As social media become more and more important in the discovery process, so too do the ethical dilemmas attorneys face when tapping this evidentiary source. The Internet as we know it is not the same Internet we once knew. No longer a place to passively receive information, the Internet is now nearly dominated by its social-media component, which has exploded in usage. For example, in February 2012, Facebook reported that it had more than 845 million active users. Social media are turning traditional forms of communication into interactive dialogues generated by the public. The very nature of social media is creative, and this creativity is unearthing new ethical dilemmas for attorneys. With users more prone to “let their guard down” when generating social-media content, the legal relevance, applicability, and value of social media have been proven time and again. A poll administered in 2010, for example, found that 81 percent of matrimonial lawyers have used evidence from social networks.


State bar associations are beginning to tackle the ethical dilemmas arising from the discovery of “statuses,” names, photos, comments, and “friends.” Among the many model rules that may be violated when an attorney uses social media during case investigation and discovery, the most common include:


  • Rule 1.6           Confidentiality of Information
  • Rule 4.1           Truthfulness in Statements to Others
  • Rule 5.3           Responsibility Regarding Nonlawyer Assistant
  • Rule 8.4           Misconduct

ABA Model Rules of Professional Conduct. Generally, lawyers are familiar with how to avoid ethical dilemmas when their clients seek out information relevant to a matter. (The ethical bar prohibiting a lawyer or his or her agent from contacting a represented non-client does not extend to the client of the lawyer or the client’s investigator or other agent.) Restatement (Third) of Lawyers § 99(2). However, directing one’s client to deliver a particular message to a represented opposing party would likely be a violation of Rule 8.4. See, e.g., Or. State Bar Comm. on Legal Ethics, Formal Op. 2005-164 (2005).


Due to the rapid expansion of social media, attorneys will likely encounter a significant number of ethical challenges when discovering social media. Most lawyers must rely on a limited number of state ethics rules, model ethics advisory opinions, and emerging case law when solving these ethical dilemmas. One of the most preeminent ethical dilemmas lawyers face when using social media involves its role in the collection of evidence in preparation for trial. To what extent may an attorney ethically use social media during case investigation and discovery?


As a general rule, attorneys may access and review the public portions of a party’s social-networking pages without facing ethical repercussions. This rule was applied in State ex. Rel. State Farm Fire & Cas. Co. v. Madden where the Supreme Court of West Virginia held that lawfully observing a represented party’s activities that occur in full view of the general public is not an ethical violation. The Lawyer’s Guide to Social Networking, John G. Browning (2010). Furthermore, it is ethical for a client to provide his or her attorney with the client’s login and password to let the attorney research using social media as long as the attorney is passively browsing and not directly communicating with other members. This behavior is deemed ethical because the attorney is only accessing information already available to the client and is acting as the client’s agent. 28 Santa Clara Computer & High Tech. L.J. 31, 64–65 (2011). (However, attorneys should be cognizant of possible violations of the social-networking website’s terms of use.)


A slightly more difficult question arises when the attorney, acting on his or her own accord, seeks access to a non-client’s social-media page. The New York State Bar Ethics Committee recently addressed this ethical dilemma when asked:


May a lawyer view and access the Facebook or MySpace pages of a party other than his or her client in pending litigation in order to secure information about that party for use in the lawsuit, including impeachment material, if the lawyer does not “friend” the party and instead relies on public pages posted by the party that are accessible to all members in the network?


NYSBA Ethics Opinion 843 (2010). The committee concluded that under such circumstances, a lawyer may access and review the public social-networking pages. Because accessing public social media does not require a lawyer to “friend” the other party or direct a third person to do so, “accessing the social network pages of the party will not violate Rule 8.4 (prohibiting deceptive or misleading conduct). “Deception” or “misleading conduct” is not possible 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.” Nor would an attorney violate Rule 4.1 (prohibiting false statements of fact or law), or Rule 5.3(b)(1) (imposing responsibility on lawyers for unethical conduct by nonlawyers acting at their direction).” Therefore, according to the committee, “[ a] lawyer who represents a client in a pending litigation, and who has access to the Facebook or MySpace network used by another party in litigation, may access and review the public social network pages of that party to search for potential impeachment material.” Id. On the other hand, accessing private social media raises additional ethical considerations.


An even more difficult question is whether an attorney may contact a non-client to gain access to the non-client’s private social media. (This process is often done by “friending” the non-client on Facebook). Two notable authorities—the New York City Bar Committee on Professional Ethics and the Philadelphia Bar Association Guidance Committee—are in disagreement. The New York City Bar was asked:


May a lawyer, either directly or through an agent, contact an unrepresented person through a social networking website and request permission to access her web page to obtain information for use in litigation?


N.Y. City Bar Formal Ethics Opinion 2010-2. The committee adopted a broad view in concluding that a lawyer is ethically permitted to use truthful “friending” or a lawful subpoena to gain access to a non-client’s private social media. This decision remains consistent with the New York’s high court’s policy favoring informal discovery in litigation. The committee opined:


[W]e conclude that an attorney or her agent may use her real name and profile to send a “friend request” to obtain information from an unrepresented person's social networking website without also disclosing the reasons for making the request.


The committee did limit this broad view so as not to ethically endorse the use of deception to gain access to a non-client’s social media. According to the committee, “a lawyer may not use deception to access information from a social networking page” (presumably a violation of ABA Model Rule(s) 4.1 or 8.3). Thus, the New York City Bar opinion implies that an attorney who omits his or her intent or rationale for “friending” a non-client is not deceptive and, therefore, not unethical. This conclusion is of particular importance because gaining access to private portions of social media via “friending” or similar actions rarely, if ever, requires an explanation of the underlying motivation.


The Philadelphia Bar Association Guidance Committee has adopted a heightened view on ethically permissible discovery using social media. Unlike the New York City Bar, which has limited “deception” to mean behavior resembling overt deception, the Philadelphia Bar’s view is heightened because it also includes omissions of intent as another form of deception. In 2009, the Philadelphia Bar was asked:


[whether an attorney may] ask a third person, someone whose name a hostile witness will not recognize, to go to the Facebook and Myspace pages of the witness, and seek to “friend” her in order to obtain access to the information on the pages. The third person would state only truthful information, [i.e., his or her true name], but would not reveal that he or she is affiliated with the lawyer or the true purpose for which he or she is seeking access, namely, to provide the information posted on the pages to a lawyer for possible use antagonistic to the witness.


Philadelphia Bar Opinion.


The committee found the proposed conduct was deceptive and, therefore, unethical. Although the conduct was not overt, it remained deceptive because it omitted “a highly material fact, namely, that the third party who asks to be allowed access to the witness’s page is doing so only because he or she is intent on obtaining information and sharing it with a lawyer to impeach the testimony of the witness.” In May 2011, the San Diego County Bar Legal Ethics Committee adopted the Philadelphia Bar’s heightened view. SDCBA Ethics Opinion 2011-2. In agreeing with the scope of the duty set forth in the Philadelphia Bar Association opinion, the committee explained that an “attorney should not send a [friend] request to someone involved in the matter for which he has been retained without disclosing his affiliation and the purpose for the request.” Thus, an attorney attempting to access a non-client’s private social media without disclosing the motivation of the friend request violates California Rule of Professional Conduct 2-100 (prohibiting communication with a represented party unless the attorney has the consent of the other lawyer). Rules of Professional Conduct of the State Bar of California. (The opinion specifically explained that “high-ranking employees” of a represented corporate adversary are considered “parties” for purposes of the rule.) In other words, although one’s motive is rarely, if ever, revealed when gaining access to private social media, “counsel’s motive for making the contact with the represented party [is] at the heart of why the contact [is] prohibited. . . .”


Gaining access to private social media through deception is not always unethical, however. For example, the New York County Bar Association approved in “narrow” circumstances the use of an undercover investigator by non-government lawyers to mislead a party about the investigator’s identity and purpose in gathering evidence of an alleged violation of civil rights or intellectual-property rights. NYCLA Comm. On Prof. Ethics Formal Op. 737, p.1. According to the committee, the type of deception of which it was approving “is commonly associated with discrimination and trademark/copyright testers and undercover investigators and includes, but is not limited to, posing as consumers, tenants, home buyers or job seekers while negotiating or engaging in a transaction that is not by itself lawful.” Thus, some jurisdictions recognize the use of deceptive “friending” as a narrow exception when investigating social media.


Although the New York City Bar and Philadelphia Bar opinions are in disagreement, both views offer well-supported policies. Undoubtedly, the New York City Bar’s opinion permits greater use of informal discovery techniques by deeming truthful friend requests ethical with respect to ABA Model Rule 8.4. It places a certain level of accountability on the social-media user by requiring the user to be cognizant of who the user grants access to. Yet, the Philadelphia Bar’s narrower view offers greater protection for the public by holding attorneys to a higher ethical standard but at the increased expense of time, money, and energy spent on filing formal discovery requests.


Rule 4.1—Truthfulness in Statements to Others
Rule 4.1 prohibits a lawyer, in the course of representing a client, from knowingly “mak[ing] a false statement of material fact or law to a third person.” Model Rules of Prof’l Conduct Ann. R. 4.1 (2010). A fact is material “if it could have influenced the hearer.” Id. The Philadelphia Committee concludes that the omission of intent is a false statement of material fact and “was therefore in violation of Rule 4.1.” Id. In support of its heightened view, the committee cited People v. Pautler, 47 P. 3d 1175 (Colo. 2002) where the Colorado Supreme Court held that under Rule 8.4, “[p]urposeful deception by an attorney . . . is intolerable, even when undertaken as a part of attempting to secure the surrender of a murder suspect. . . .” The heightened view was adopted by the Oregon Supreme Court in In Re Gatti, holding that no deception at all was permissible under Rule 8.4, and even rejecting proposed carve-outs for government or civil-rights investigations. After subsequent amendment, however, Oregon’s Rule 8.4 effectively rejects this view. Currently, lawyers can advise clients about or supervise lawful “covert activity,” which means an effort to obtain information on unlawful activity though the use of misrepresentations of other subterfuge. Under either view, however, ABA Model Rule 5.3, “Responsibility Regarding Nonlawyer Assistants,” holds a lawyer responsible for the proposed interaction that the third party undertakes with the witness. According to the Philadelphia opinion, the fact that the inquirer “is not a lawyer does not insulate the inquirer from ethical responsibility for the conduct.”


The Rule 4.1 comments, however, state that a lawyer “generally has no affirmative duty to inform an opposing party of relevant facts.” Model Rules of Prof’l Conduct Ann. R. 4.1 cmt 1 (2010). This supports the New York City Committee opinion, concluding that Rule 4.1 would not be implicated unless the investigator used a fake profile. Thus, depending upon jurisdiction, even if there is a strict prohibition on the lawyers themselves using subterfuge to gain access to a social-media user’s account, the lawyer might be able to do so through a proxy, but only in limited circumstances. In Oregon, the lawyer could presumably gain access to a user’s social-media account to obtain information on unlawful activity that might not encompass all claim-investigation activities.


Rule 8.4—Misconduct
ABA Model Rule 8.4, “Misconduct,” prohibits “dishonesty, fraud, deceit or misrepresentation.” The Philadelphia opinion concludes that an attorney who contacts a non-client over social media and fails to disclose his or intent when making the request is in violation of Rule 8.4 because it is deceptive. 28 Santa Clara Computer & High Tech. L.J. 31, 72 (2011). According to the committee, the “intent” of the investigator is that the third party is seeking to obtain information and share it with a lawyer to impeach his or her testimony as a witness. “The omission would purposefully conceal” the underlying purpose of “inducing the witness to allow access, when she may not do it if she knew the third person was associated with the inquirer and the true purpose of the access.” Id. The fact that the user freely permitted access to other users requesting to be friends “does not remove the deception.” Id. Therefore, the attorney should simply ask the witness forthrightly for access. “[E]xcusing the deceit on that basis would be improper. Deception is deception, regardless of the victim’s wariness in her interactions on the internet and susceptibility to being deceived.” Id.


On the other hand, the New York City opinion concludes that an attorney who contacts a non-client but omits the underlying purpose or intent does not violate Rule 8.4. In essence, failure to disclose the reason(s) for the friend request is not deception. In support, scholars argue that “friend requests do not explicitly express any intent” and merely symbolize a host of motives including wanting to be friends, establishing business connections, learning more about the person, romantic interests, or sending spam. Id.


Rule 1.6— Confidentiality of Information
Model Rule 1.6, “Confidentiality of Information,” states: “(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).” Time and again, lawyers have violated Rule 1.6 when revealing information regarding clients through social media. For example, in In The Matter of Peshek, No. 6201779, an Illinois attorney was found in violation of Rule 1.6 and subsequently fired for comments contained on her blog regarding her work as a public defender. In the blog posts, Peshek allegedly “identified her client’s jail identification number” and “identified a client by his first name and discussed how the client lied to the court about his drug use and blamed his positive results on his diabetes.” 11 Loy. J. Pub. Int. L. 511, 515 (2010). “In addition to blogs, violations of Rule 1.6 can occur when attorneys write posts on social networking sites about their cases or communicate with their clients via these sites.” Id.


Regardless of whether evidence was collected ethically, is it nevertheless admissible at trial? According to Jonathan Ezor, director of the Touro Law Center Institute for Business, Law and Technology, “[f]or governmental attorneys, such violations could fall under the general principles of the exclusionary rule and deny admissibility.” Ezor, Jonathan, “False Friends: the Ethical Limits of Discovery via Social Media,” Law Technology News. But for attorneys in private practice, “state law may permit use of the information gathered even if the lawyer violated ethics rules to do so. . . .” Id. Moreover, attorneys must remember the broad swath of social media activity that is considered “communication” for purposes of professional conduct. Communication is generally defined broadly so as to constitute a “deliberate action” such as a “tweet” or “poke.” For example, in October 2009, Shannon Jackson of Hendersonville, Tennessee, violated a legal order of protection that had been previously filed against her by “poking” another woman on Facebook. Thus, “communication” is essentially any form of virtual contact asserted by the user.


Keywords: litigation, pretrial practice and discovery, Facebook, Twitter, ABA Model Rules


Seth I. Muse is a law student at Southern Methodist University in University Park, Texas.



 
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