An Ethical Duty to Use the Internet?

Vol. 41 No. 5

By

Mary Dunnewold is a legal writing instructor at Hamline University School of Law.

But as a practicing lawyer, you may have an ethical responsibility to use the Internet and social media as tools to actually help you in your practice. Obviously, a great deal of attorney advertising, business generation, and client communication occurs over the Internet, and these uses raise their own ethical issues. But these issues aside, using the Internet as an investigation tool can raise a number of potential ethical conundrums for lawyers. Not only do you have a duty to understand and appreciate the potential pitfalls of online investigation, but you may also have a duty to actually use the Internet and social media to gather information in some situations.

Clients.

Lawyers should consider using social media such as Facebook and basic Google searching to screen clients before agreeing to representation. Screening clients this way may be especially important in domestic cases, some criminal cases, and other cases that potentially involve personal information about clients.

In a recent case in federal court (Cajamarca v. Regal Entertainment Group), a lawyer was reprimanded by the judge (and ultimately sanctioned), in part, for essentially failing to adequately investigate his client’s case early in the course of representation. During discovery in the sexual harassment lawsuit, material facts emerged showing that the lawyer’s client had lied about the incidents that led to the claim, the symptoms she experienced as a result, and her personal history. The court stated that “at the very least, [the lawyer] did an extraordinarily poor job of client intake in not learning highly material information about his client.” Much of that information had been available on Facebook, and it was ultimately discovered in the litigation process.

As this case illustrates, failure to perform a diligent screening of a client, including investigating the client’s social media presence, can later lead to ethical trouble in court and even to sanctions. But if you decide to represent the client, your obligations to monitor and advise about the client’s online presence may just be beginning.

There has been a huge increase in the use of information from social networking sites in family law cases. The American Academy of Matrimonial Lawyers reported in a 2010 survey that the use of evidence from social networking sites has increased significantly in recent years, and most divorce lawyers identified Facebook as the primary online source for collecting evidence.

In this context, if you are considering representing a client in a divorce action, you have a duty to investigate your client’s Facebook profile and evaluate it as a source of possible evidence. Because you must assume that the lawyer representing an opposing party will investigate diligently, you should advise your client not to post any information that would negatively affect the case. You should pay particular attention to your client’s use of privacy settings to protect information already posted. To comply with your duty of diligence, imposed by Model Rule of Professional Conduct 1.3, you may also want to monitor information about your client available over the web during the course of representation.

Once a client has posted potentially damaging information on a social media or other website, you have a duty to the court and the opposing party to preserve the evidence. Specifically, under Model Rule 3.4, you may not “unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value.” Further, under this rule, you may not advise your client or anyone else to remove or destroy evidence, and this duty can arise before litigation has even begun.

Because of this ethical duty, it becomes even more important to investigate your client up front and explicitly advise the client about the consequences of posting online. While you can advise your client to make all postings private, a diligent opposing attorney could still gain access to them through the formal discovery process.

Opposing parties and witnesses.

The duty of diligence imposed by Model Rule 1.3 probably does in fact obligate you to use the Internet to investigate opposing parties and witnesses through Google searches and social media sites. Viewing the publicly available social media profiles or websites of parties and witnesses is no different from viewing other kinds of public information. Also, making up-front “friend requests” to witnesses and other unrepresented parties to collect information relevant to representation of your client is permissible.

But contacting witnesses and parties over the Internet can implicate two ethical concerns: the duty of candor and the duty to avoid communicating with represented parties. First, use of deception to gain access to information on the web is not allowed. Under Model Rule 8.4(c), lawyers must “not engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” Model Rule 4.1 also prohibits lawyers from making false statements of material facts to others when representing a client.

Several state ethics commissions have determined that a lawyer violates these rules if he “friends” a potential witness in a case to get information about the witness, without revealing his role or purpose in making the request. Specifically, a lawyer may not ask a third party, like an investigator or assistant, to friend a potential witness, hoping that the witness won’t recognize the third party as an associate of the lawyer (see Phil. Prof’l Guidance Comm., Op. 2009-02 (March 2009) and N.Y.C. Assn. B. Comm. Prof. Jud. Eth., N.Y.C. Eth. Op. 2010-2). Because the request would omit a material fact—that the resulting information would be used essentially to impeach the witness—it would be considered deceptive.

Model Rule 4.2 prohibits a lawyer from communicating with a represented party without the consent of that party’s lawyer, and that rule applies in the context of both Internet and non-Internet communications (see Oregon State Bar Formal Op. 2005-164). While it is okay to Google an opposing party to gather information in a case, and is probably even a requirement of diligence, a lawyer crosses an ethical boundary if online activity goes beyond basic searching and results in actual contact with the party. For instance, “contact” could occur if the lawyer makes a friend request to a party or comments on a party’s blog.

Jurors.

Many of the above considerations also apply in online investigations of jurors. The Internet can be a powerful tool for gathering background information about potential jurors. And in fact, given the duty of diligence, a lawyer may be remiss in failing to investigate potential jurors through web searching. In a 2010 case (Carino v. Muenzen), the New Jersey Superior Court determined that a trial court “acted unreasonably” when it prohibited a lawyer from using a laptop to research jurors during voir dire. The court reasoned that the Internet was available to both parties for that purpose, and opposing counsel’s failure to take advantage of it did not result in an unfair playing field.

Under the rules governing honesty and candor, a lawyer may not use deception to gain access to online information about a juror. Similarly, under Model Rule 3.5, a lawyer may not communicate with a juror, just as she may not communicate with an opposing party or with the judge in a proceeding. In the context of online communications, as in the context of represented parties, this means a lawyer may not make a friend request to a juror and may not otherwise call attention to the fact that she is researching the juror online. The same rules apply to anyone working for the lawyer.

The Internet provides a great opportunity for lawyers to monitor jurors during the course of a trial to make sure the jurors themselves are not communicating inappropriately about the case. Jurors have used the Internet to conduct their own research about cases, have inappropriately tweeted about cases during trial, and have communicated about trials on their Facebook pages. All of these uses of electronic communications raise potential claims of jury misconduct. Lawyers may need to use Internet resources in turn to protect the integrity of the trial process for their clients.

 

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