Social media permeate all facets of our lives, capturing everything from our latest meal to cherished rites of passage. Attorneys who exhibit a dismissive attitude toward this revolution are jeopardizing their practice. Social media are an unrivaled resource, often providing a wealth of information about a user that can be a potential gold mine for litigators. Yet, with great advances in this technology come great responsibilities for attorneys to mold their behavior in accessing and managing this information within the parameters of the Model Rules of Professional Conduct and governing bar association rules. Social media present new ethical dilemmas for attorneys, which have only begun to receive appropriate attention in recent years.
The Deafening Silence of the ABA Model Rules
When the ABA amended the Model Rules of Professional Conduct in 2013, there was no specific mention of social media other than a not-so-subtle reminder that an attorney must stay abreast of changes in technology. The ABA’s silence was incongruous with the everyday demands placed on litigators to harvest information on social media. That said, even without a formal ABA Model Rules acknowledgment, the use of social media is undoubtedly joined to long-standing rules, including Rule 1.6 (Confidentiality of Information),Rule 4.1 (Truthfulness in Statements to Others), Rule 5.3 (Responsibility Regarding Nonlawyer Assistant), and Rule 8.4 (Misconduct).
The ABA’s decision not to expressly address social media has left attorneys little national guidance regarding attorney ethics in the domain of social media. When can an attorney “friend” another individual with relevant knowledge about a case? What must an attorney or the attorney’s agent disclose to these individuals? What is considered spoliation in the modern social media age and what role does an attorney have to preserve his or her client’s social media footprint? A mishmash of state and local bar association opinions and spotlighted case decisions has attempted to fill the chasm left by the ABA’s reluctance to specifically address the issue.
The Complexion of Deceptive Conduct Using Social Media
Modern litigation is replete with ethical dilemmas involving social media. One such concern arises from the information about parties of interest available to attorneys as part of the public domain on social media, which may involve little more than using the search features of social media sites like Facebook.
In 2010, the New York State Bar’s Committee on Professional Ethics, in its Opinion 843, addressed an ethical dilemma arising from this kind of potential access when it considered whether a lawyer may view the Facebook pages of a party other than his or her client in pending litigation in order to secure information about that party for use in a lawsuit and whether the analysis changes if the lawyer does not “friend” the party and instead relies on public pages that are accessible to all members in the network. The committee concluded that under such circumstances, a lawyer may access and review the public social networking pages. Because harvesting public social media does not require a lawyer to “friend” the other party, accessing the social network pages of the party will not violate Rule 8.4, which prohibits deceptive or misleading conduct. In short, Opinion 843 would support that as long as the attorney does not “friend” the witness (or otherwise direct a third party to do so), accessing the social networking pages is not an ethical violation.
Yet, there is a noticeable pivot when one acknowledges that not all social media information is public. The author’s local Philadelphia Bar Association Professional Guidance Committee has affirmatively characterized so-called “fraudulent friending” as unethical. In 2009, the Philadelphia Bar issued Opinion 2009-02, which considered whether an attorney may ask a third person, someone whose name a witness will not recognize, to go to the Facebook and Myspace pages of the witness and seek to “friend” the witness in order to obtain access to the information on the pages. In this scenario, the committee considered the ramifications if the third person would state only truthful information such as his or her name but would not reveal that he or she is affiliated with the lawyer or the true purpose of seeking access, i.e., to provide the information posted on the pages to the lawyer.
The committee found the proposed conduct was deceptive and therefore unethical. This is because such action omitted a highly material fact, i.e., that the third party asking to be allowed access to the witness’s page is doing so with the intent to share information with a lawyer to impeach the testimony of the witness. Other bar associations have followed the Philadelphia model by stating that an attorney should not send a friend request to someone involved in the matter for which the attorney has been retained without disclosing his or her affiliation and the purpose of the request.
Yet, in further evidence that the governing authority on the ethics of social media is truly a patchwork of different opinions, the Bar Association of the City of New York Committee on Professional Ethics diverged from these conclusions in Formal Opinion 2010-2. It stated that an attorney or the attorney’s agent may use his or her real name to “friend” an unrepresented individual in furtherance of obtaining information from that person’s social media page without disclosing the true motive. As long as the attorney used truthful information, the conduct was ethical. Other bar associations, including the Oregon State Bar in Formal Opinion 2013-189, have echoed this sentiment. These opinions reasoned that a request for access to nonpublic information from an unrepresented individual does not establish any transparent ethical transgressions. This line of cases would place a burden on the account holder to appropriately filter “friend” requests.
The fact that a witness has a proclivity to accept “friend” requests or is simply ignorant about the information seeker’s motive does not minimize the high ethical standards applicable to lawyers who are obtaining this type of information. What can be distilled from these various opinions is that an attorney must disclose his or her true identity; must not make misrepresentations or direct others to do so; and when representing a client, must not communicate about the subject of that representation with another person the lawyer knows has representation. These opinions also support that a request is presumptively proper if the true identity of the lawyer and the reason for the request are disclosed.
Preserving Evidence: Social Media and Spoliation
Spoliation in the world of social media renders obsolete classic images of paper shredders or backdoor dumpsters. Today, a simple, single-click request can extinguish evidence permanently or morph it into something it was not the second before. Consider the seminal spoliation case of Allied Concrete Co. v. Lester, 736 S.E. 2d 699 (Va. 2013). There, the plaintiff’s attorney told his client to remove several photos from his Facebook account for fear that they would prejudice his wrongful death case brought after his spouse’s fatal automobile accident. The attorney instructed his client through his assistant to “clean up” his Facebook account to avoid “blow-ups” of those photos at trial, and this instruction was followed.
The court was not amused and held that the defendant was entitled to sanctions against the plaintiff’s attorney to cover the defendant’s costs in defending against the conduct. Also notable was that the plaintiff’s attorney agreed to a five-year suspension for the misconduct.Allied Concrete reflects a view among some attorneys that social media evidence need not be treated with the same importance as paper or electronic discovery. When that happens, courts will show little mercy.
In Gatto v. United Air Lines, Inc., 2013 U.S. Dist. LEXIS 41909 (D.N.J. Mar. 25, 2013), the plaintiff alleged that he suffered permanently disabling injuries while employed as a ground operations supervisor with an airline. He claimed that his injuries prevented him from working and limited his physical and social activities. In July 2011, during discovery, the defendants sought the plaintiff’s social media information dating back to 2008.
The plaintiff later claimed that he inadvertently deactivated his account after receiving a notice that someone was trying to access it (and Facebook later deleted the account in line with its internal policy). The defendants moved for sanctions, arguing that the plaintiff intentionally deleted his account because the postings on his page related to his damages claim. The court opined that even if the plaintiff did not intend to permanently deprive the defendants of the information associated with his Facebook account, there was no dispute that the plaintiff intentionally deactivated the account and thus had failed to preserve the relevant evidence. Thus, the court held that the plaintiff engaged in spoliation, thereby entitling the defendants to an adverse inference instruction at trial.
These pitfalls can be avoided. Lawyers, pursuant to Model Rule 3.4, have a responsibility to oversee preservation of relevant evidence. A recent Philadelphia Bar Professional Guidance Committee opinion, Opinion 2014-5, makes clear that an attorney must take reasonable steps to preserve and produce what is on a client’s social media page. Without question, social media posts are evidence in this new age. An attorney must play an active and ongoing role in a preservation plan, including sending preservation mandates in writing to the client and to other nonparties if necessary. This will help insulate the attorney if spoliation does occur despite these safeguards.
But if outright spoliation is one extreme, there are options that are feasible to implement within the parameters of ethical conduct. For example, attorneys may instruct clients to control their privacy settings to limit what is deemed open for public consumption. That said, nothing can prevent an adversary from seeking a court order unlocking the subject account if the discovery request is narrowly tailored.
The ABA, local and state bars, and courts are grappling with the issues involving discovery and social media. Undoubtedly, some of these guiding authorities that attorneys routinely rely on are lagging behind the times and are often inconsistent. The confusion about recent bar opinions and judicial decisions should not obscure the ethical rules that, if violated, can have severe consequences for an attorney’s practice. Fear of these ethical issues should not undermine an attorney’s advocacy; rather, counsel should equip themselves with a professional, responsible, and ethical course of conduct in accessing social media information to benefit from this potential treasure trove of information.
Keywords: litigation, professional services liability, spoliation, social media, discovery, friending, ethics, ABA Model Rules
Saleel V. Sabnis is an associate with Goldberg Segalla in Philadelphia, Pennsylvania.
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