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Professional Conduct RulesEvidence to Impeach or an Ethical Breach?

Interpreting how social media research aligns with the professional conduct rules

 

By Erin McCartney, Esq.

 

With social media being all the rage, many people are turning to their favorite sites to share the details of their daily lives. Willingness to disclose personal information in such a carefree manner could be particularly helpful in the discovery phase of litigation. Snooping on opposing parties, witnesses, or jurors through social media can provide a treasure-trove of information that ten years ago might have taken a private investigator months to obtain.  A Google search alone can provide a subject’s age, address, occupation and possibly even an embarrassing high school portrait. However, lawyers need to be aware of the emerging ethical violations that could result from their sleuthing activities.

Before Facebook, Instagram and LinkedIn, the Model Rules of Professional Conduct addressing communication with non-clients were a little more cut and dry. For example, Model Rule 4.2 advises that a lawyer shall not communicate with a person known to be represented by another lawyer in the matter, unless the lawyer has consent or is authorized to do so by law.[1] This rule is intended to protect a represented party against possible interference by other lawyers and the uncounseled disclosure of information relating to the representation.  Given the straightforward language of the rule, most lawyers would agree that defense counsel is barred from making a phone call to the plaintiff to obtain information to support their case.  However, trying to interpret how social media’s ever-evolving communication features align with the professional conduct rules has many ethics experts scratching their heads. Although these online forums are fairly new, the professional conduct rules that apply to them are not.

A few bar associations have addressed what constitutes online “communication” as it relates to the professional conduct rules.  The San Diego County Bar Association reviewed a case in which the plaintiff’s attorney was “friending” unhappy current employees of the defendant company with the intent to use information to advance the interests of his client.  The committee acknowledged that social media has opened a broad platform on which people can place personal information, but that the ethics rules impose limits on how attorneys may obtain information shielded by privacy settings. They opined that an attorney is barred from making an ex parte “friend” request of a represented party but that they can “friend” an unrepresented party if they disclose the purpose of the request. Essentially, the opinion determined that no one – represented or not – should be misled into accepting an online “friendship.”[2]  

The New York City Bar Association’s Committee on Professional and Judicial Ethics also considered this query. They agreed with the San Diego opinion that an attorney cannot “friend” a represented party. However, they made a distinction regarding communication with an unrepresented party. The New York opinion determined that if the attorney uses their real name and profile to send a “friend” request to an unrepresented person, they do not have to disclose the reasons for making the request.[3]  Which begs the questionis it ethical to engage a third party, whose name would not be familiar to the represented party, to make contact with a represented party?   

In a recent personal injury case, two New Jersey defense attorneys were scanning the plaintiff’s Facebook page, which was open to the public. They saved comments, pictures and videos that supported their client’s case. Soon after, following the advice of his counsel, the plaintiff made his profile private. Undeterred, the defense attorneys engaged a female paralegal to send the plaintiff a “friend” request, which he accepted. The attorneys started collecting information on the plaintiff, including videos of him wrestling and partying, which they intended to use to impeach his claims of permanent injuries.[4]

Again, Model Rule 4.2 prevents attorneys and their staff from personally contacting represented clients without consent from their counsel. In this case, the plaintiff’s counsel argued that improper party contact occurred when the defense attorneys’ paralegal sent a “friend” request without seeking permission from the plaintiff’s attorney. After an investigation, the New Jersey ethics office filed a formal complaint against the defense attorneys for: (1) communicating with a represented party (2) failing to supervise a subordinate lawyer (3) failing to supervise a non-lawyer assistant (4) inducing another to violate the rules of professional conduct (5) conduct involving dishonesty, fraud, deceit and misrepresentation, and (6) conduct prejudicial to the administration of justice.

The Philadelphia Bar Association Professional Guidance Committee took this analysis a step further by considering whether a lawyer who wishes to access the restricted social networking pages of an adverse, unrepresented witness to obtain impeachment information, may enlist a third person.  Like the New Jersey case, the third person would use their real name, which the witness would not recognize, and would not reveal that they are affiliated with the lawyer or the true purpose for seeking access. The intention would be to provide the information posted on the pages to a lawyer for possible use antagonistic to the witness. Ultimately, the committee opined that a lawyer cannot hire a third person, even if they use their real name, to “friend” an unrepresented party to gain access to their restricted pages because they are merely working on the attorney’s behalf. [5]   

These cases and opinions reveal the challenge that judges and ethics experts are facing in determining the appropriate balance between allowing unfettered access to public information on the Internet and intruding on the attorney-client relationship. However, based on the case law and opinions that have addressed these scenarios, the consensus appears to be that lawyers should avoid communications with represented parties on social media. Consequently, a lawyer should not send “friend”, “follow” or “connect” requests to opposing parties known to be represented by counsel in order to gain access to those parties’ private social media content. On the other hand, viewing publicly accessible social media content, that does not trigger communication with a represented party, is generally considered fair game.

 

When it comes to communicating on social media with unrepresented third parties, a lawyer should err on the side of caution. As with represented parties, publicly viewable social media content is generally acceptable. However, if the information sought is filtered by privacy settings, ethical constraints may limit the lawyer’s options for obtaining it.

Social media profiles could also provide lawyers with valuable insight into a prospective or sitting juror’s mindset. Routinely monitoring the online accounts of jurors to access educational background, political affiliations and what they “follow” could prove useful during the course of a trial. This raises an interesting dilemma, however, for attorneys navigating the ambiguous line between diligently representing the client and complying with the ethical rules regarding communication. 

In a formal opinion, the ABA opined that a lawyer may passively review a juror’s public presence on the Internet, but may not communicate with a juror. Although the opinion acknowledged that an attorney’s ability to conduct internet research on prospective jurors has become a fundamental component of effective client representation in many jurisdictions, requesting access to a private area on a juror’s profile page is considered communication which may be constrained by the ethics rules. [6]

The New York City Bar also issued a formal opinion on this matter. The opinion maintains that attorneys may research jurors online, only if, as a result of the search, the juror does not receive a “communication.”[7]  The opinion specified that if an attorney views a juror’s social media page and the juror receives an automated message that a potential contact has viewed their profile, even if the attorney is entirely unaware that the automated message was sent, the attorney has arguably “communicated” with the juror. This is in contrast to the ABA opinion which is indifferent to whether or not a juror becomes aware that the lawyer is reviewing their social media presence.

Although recent ethics opinions regarding permissible online jury research are not unanimous, most agree that lawyers are permitted to view public posts. However, attorneys should not use deception or conceal their identities by using pseudonyms or other peoples’ accounts to gain access to a juror’s website or to obtain information. Third parties working for the benefit of or on behalf of an attorney should also comport with the same restrictions.  

As previously discussed, perusing non-clients’ online profiles can be useful but attorneys need to be cognizant of their own clients’ social media posts as well. While no lawyer wants to discover embarrassing photos or comments on a client’s profile page, the ethics rules prohibit an attorney from unlawfully altering or destroying evidence or assisting others in doing so. Model Rule 3.4 advises that a lawyer shall not unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. [8]  While setting fire to a bin full of incriminating documents may be tempting, it would most likely land an attorney in front of the disciplinary board! In the world of social media, no matches are needed. With a click of a button, one can edit a post or delete a picture.  The two situations, though, are analogous.

Spoliation of evidence is a serious offense and social media posts and profiles are no exception. There was a wrongful death case in Virginia in which the plaintiff’s attorney instructed the client to delete content from his Facebook page that depicted him as something less than a grieving widower. [9] The attorney also had his client sign sworn interrogatories stating he did not have a Facebook account. Following a large verdict for the plaintiff, defense counsel brought a motion for new trial based on spoliation of evidence.  The trial judge cut the damages award in half and imposed sanctions, most of which were against the plaintiff’s counsel, for an “extensive pattern of deceptive and obstructionist conduct.” The plaintiff’s attorney had his license to practice law suspended for five years.

Although the ethics rules address spoliation of evidence, they are unclear as to whether a lawyer can advise a client to “clean up” their social media pages. A Florida attorney who handled personal injury and wrongful death cases, asked the ethics committee whether she was permitted to advise her client to remove embarrassing posts before filing litigation. The committee opined that a lawyer may advise a client pre-litigation to change privacy settings on the client’s social media pages so that they are not publicly accessible. Provided that there is no violation of the rules or substantive law pertaining to the preservation and/or spoliation of evidence, the lawyer also may advise that a client “take down” social media content relevant to the foreseeable proceeding as long as the information or data is preserved. Unless an appropriate record of the social media content is preserved, a party or nonparty may not delete information from a social media profile that is subject to a duty to preserve. [10]

Although social media sites can provide many benefits, the instant and easy accessibility of them may not leave time for caution or reflection before diving into an online investigation. Much like using a photo-shopped image on a dating site, trickery and deception are not appreciated in the realm of legal ethics. Ethics committees disapprove when lawyers attempt to gain access to non-public social media content by using dishonesty, pretext, false pretenses, or an alias. Being aware of recent decisions and opinions while walking the fine line between minding the ethics rules and zealously defending a client, could make the difference between great trial strategy and a serious ethical violation. When in doubt, think about how a social media communication would translate as a traditional phone call or letter and conduct your actions accordingly. 



[1] ABA Model Rule of Professional Conduct 4.2.

[2] San Diego County Bar Association Legal Ethics Opinion 2011-2. 

 

[3] The Association of the Bar of the City of New York Committee on Professional and Judicial Ethics Formal Opinion 2010-02.

[4] John J. Robertelli v. The New Jersey Office of Attorney Ethics (A-62-14) (075584) (New Jersey Supreme Court 4/19/16). 

[5] The Philadelphia Bar Association Professional Guidance Committee Opinion 2009-02.

[6] The ABA Standing Committee on Ethics and Professional Responsibility Formal Opinion 466.

[7] The Association of the Bar of the City of New York Committee on Professional and Judicial Ethics Formal Opinion Formal Opinion 2012-2 (May 2011).

[8] ABA Model Rule of Professional Conduct 3.4.

[9] Allied Concrete Co. v. Lester, 736 S.E.2d 699 (Va. 2013).

[10] Professional Ethics of the Florida Bar Opinion 14-1.

 

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