Legal Ethics and Social Media Discovery
By Justin D. Hodson, CPI CSMIE
The web, an entangled mess of content that is ripe for any diligent legal sleuth to peruse. In this day of age, most Americans are ready and willing to publish their most personal information online for anyone to view. These postings of photos, videos, and other content are a legal cornucopia of content for discovery purposes. But, there are pitfalls to our exploring, and any principled attorney needs to know of the ethical implications.
Pew Research conducted a survey and found that 86% of American adults have used social media. Social media is prevalent in our daily lives and is not going away. With the number of people using social media and the content that is publicly available, every attorney should consider using these online resources during their research. In the following article, we will go over the ethics rule, social media, your responsibility with overseeing agents, and bar rulings on the subject.
So, what ethical implications or pitfalls may a diligent attorney come across during their online research? Well, one of the most important would be Ethics Rule 2-100(a) of the California Rule of Professional Conduct. This rule prohibits any lawyer from communicating about a matter with a party known to be represented by a lawyer without the prior consent of that lawyer.
The rule classifies “party” as anyone including an organization and their officers, directors, and managing agents, and potentially other employees, as well as potentially in-house counsel, (Snider v. Superior Court (2003) 113 Cal. App. 4th 1187, 1207-09). The rule must be interpreted narrowly because the violation could result in disqualification and possible disciplinary action.
Further, actual knowledge that a lawyer represents the party is required for a violation to be found. However, the party need not be the “opposing” party. The contact must be about the matter where the opposing party is represented.
Does simply viewing a social media profile constitute “communication” or “contact” of an opposing party? First, “communication” is defined as “a process by which information is imparted or exchanged between individuals through a common system of symbols, signs, or behavior.” In the following, we will explain why viewing a social media profile might be classified as communications and a possible violation of the ethics rule.
So, how does this rule apply to social media? First, there are numerous ways one can inadvertently contact an opposing party. The most common mistake would be by simply viewing their profile. One must be aware of each platform’s peculiarities and how they work. For instance, SnapChat alerts the users that you viewed their profile. LinkedIn records when you click onto another user’s profile and notifies them of this visit to their profile. The same occurs when viewing a user’s “stories” on Facebook and Instagram.
Knowing how each platform works is critical when conducting research. If you do research in-house, make sure that you and your staff have full knowledge of social media platforms and how they work.
So, you may ponder that most investigators, researches, law clerks, and legal secretaries are fully cognizant of ethics rules when conducting research. Well, this might not always be the case. As an attorney, you have a duty to supervise the work of subordinate attorneys and non-attorney employees or agents. It is important that your staff and investigators are fully aware of the rules attorneys must follow while conducting research. If you have an agent conducting social media research make sure they too know how the platforms work and the ethical implications of the work they are conducting.
There are several bar rulings on contacting an opposing party. When it comes to “friending” to reveal additional information on a party, this is a clear violation of the ethics rule. The following rulings were made at the San Diego County Bar Association, Oregon State Bar, and the New York City Bar.
The San Diego County Bar Association Ethics Opinion 2011-2 ruled that an attorney is prohibited from making an ex parte friend request of any represented party. An attorney’s ex parte communication to a represented party intended to elicit information about the subject matter of the representation is impermissible no matter what words are used in the communication and no matter how that communication is transmitted to the represented party.
The Oregon State Bar ruled that a Lawyer may access publicly available information on a social networking website. The lawyer may request access to nonpublic information if the person is not represented by counsel in that matter and no actual representation of disinterest is made by lawyer. To access nonpublic information on a social networking website, a lawyer may need to make a specific request to the holder of the account. The lawyer may not advise or supervise the use of deception in obtaining access to nonpublic information unless Oregon RPC 8.4(b) applies.
The New York State Bar ruled that lawyers increasingly have turned to social networking sites, such as Facebook, Twitter, and YouTube, as potential sources of evidence for use in litigation. The potential ethical pitfalls associated with social networking sites arise in part from the informality of communications on the web. The bar concluded the “virtual world” should be treated as the real world.
Under the New York Rules of Professional Conduct, an attorney and those in their employ are prohibited from engaging in this type of conduct. We believe these rules are violated whenever an attorney “friends” an individual under pretenses to obtain evidence from a social networking website.
Viewing Public Profiles
Under the ABA Model Rules, a lawyer can generally view online public profiles of any person without raising an ethical issue. Public profiles can usually be found by a search query within the social media platform. Because access to a public profile usually can be gained without contacting the person who posted the profile, viewing it is a passive act not constituting a “communication” or “dealing” with a represented or unrepresented party. Thus, information posted on a public profile can generally be collected without concern for use in litigation.
However, attorneys must be mindful of each social media platform’s peculiarities. For example, LinkedIn notifies users when someone has viewed their profile. At least three bar associations have addressed this issue, with conflicting results. The New York City Bar Association (NYCBA) and the New York State Bar Association (NYSBA) concluded that the “who’s viewed my profile” message on LinkedIn is communication to that person, which, depending on the circumstances, could constitute an ethical violation. The ABA, however, concluded that the message does not constitute communication. Thus, lawyers must be vigilant to learn the functions of each social media platform, as well as their jurisdiction’s ethical guidance.
Viewing Non-Public Profiles
Many social media profiles are private, meaning a third-party cannot access a profile’s content without user consent. Requesting access to another’s social media account is commonly referred to as “friending.” As opposed to viewing a public profile, friending—the overture to friend someone—almost certainly constitutes a communication with the social media owner, subjecting friending to ethical constraints. Ethical consequences of friending vary, depending on whether the account owner is a represented or unrepresented party. A lawyer will likely commit an ethical violation by friending represented parties to gain access to their profiles, unless the lawyer has the consent of opposing counsel. However, if the person profiled is unrepresented, friending does not necessarily violate an ethical rule, depending on the lawyer’s jurisdiction. Bar disciplinary authorities have reached different conclusions on this topic, subjecting lawyers to different rules. At least three bar authorities suggest that lawyers may friend an unrepresented person if no deception is involved. Others require lawyers to disclose their identity and reason for friending affirmatively. These jurisdictions require attorneys seeking access to social media profiles to disclose their identities to the owner of the social media accounts. The rules requiring disclosure can be read in conjunction with the “no deception” rules to require lawyers, at a minimum, to reveal their identities when friending unrepresented persons. Yet, there are no ethical implications if a client, without direction from a lawyer, obtains access to social media posts by friending. Here, the attorney does not commit an ethical violation because the client, not subject to the ethical rules, is the one doing the friending. Lawyers can receive social media evidence procured by a client only if the client obtains the evidence on the client’s initiative.
About the Author
Justin D. Hodson, CPI, CSMIE is a professional private investigator and owner of Hodson P.I., LLC based in California. Hodson has been conducting investigations since 1999. Hodson works primarily with law firms, insurance companies, municipalities, and large corporations to discover information. He is also an MCLE instructor approved by the California State Bar.
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