With social media for attorneys becoming more ingrained into our everyday routines, it still has a “wild west” feel to it. It’s a new frontier that many legal teams are starting to embrace. An unpretentious Facebook account has the potential to provide more useful information than a surveillance or background investigation could. Photos, comments, and check-ins could reveal if the opposition is being truthful or not.
As more people use social media and become more aware of how much of their personal information could be seen on the internet, many are privatizing their social media profiles so only those that they allow can see their posts. Unfortunately, this hinders what a lawyer could see if they decide to take a peek at the opposition’s social media.
Why not send a friend invite to the subject of the investigation and hope that the subject okays the request? Wouldn’t this open the door to a whole world of posts, photos, and comments that could be helpful to a legal team’s case?
ABA Rule 4.2 and equivalent state ethics rules forbid a lawyer to communicate with a person the lawyer knows to be represented by another lawyer in the matter unless the lawyer has the consent of the other lawyer or is authorized to do so by law or court order. RPC 8.4(a) and similar state rules extend this prohibition to any agents of the lawyer such as private investigators, paralegals, and more.
This shouldn’t dissuade a lawyer from having a social media investigation performed on a represented party. When it comes to social media for attorneys, viewing content on a social media profile that is set to publicly viewable settings, is not seen as communicating with a represented party. This content is viewable by anyone. A publicly viewable post on a social media platform is not viewed to be private in the same manner as an entry in a diary or a text message. A post such as this could be viewed as being the equivalent of a newspaper or magazine article.
Even if the subject of an investigation has been smart enough to privatize a social media profile such as their Facebook, they often may have another social media profile on a platform such as Instagram that is still publicly viewable.
Furthermore, a good investigator always has other avenues to possibly capture useful information about their subject on social media without breaching legal or ethical boundaries.
If a post is made publicly viewable, anyone regardless of their relationship to the profile owner can view this post. If a said post contains information that a lawyer views as being relevant to their case, it can be used in court without being seen as communicating with the represented party.
Any lawyer who violates the ethics rules of communicating with a represented party potentially damages their case and their social media captures could be thrown out. This only underscores the importance for a legal team to hire a private investigator who follows these ethical rules.