Ethics of Using Social Media During Case Investigation and Discovery

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?

[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.