[authors: Barry Buchman and Emily Grim]
As we discussed in an earlier post regarding the use of social media to research potential jurors, the information available through social media can be a potent litigation tool.
Indeed, far from being limited to a juror-research device, practitioners in the insurance realm and beyond are now using social media sites as a potential source of impeachment material for use against opposing parties or witnesses. For example, counsel for an insured might attack the credibility of the insurer’s expert witness with evidence from Facebook or LinkedIn of the witness’s past professional or personal affiliation with the insurer or a competitor of the insured.
But, as recent ethics charges filed against two attorneys demonstrate, using social media in this fashion presents serious ethical considerations, just as it does when used for juror research. As a result, it is essential that attorneys learn the boundaries of social media use and stay within them. See M. Gallagher, Hostile Use of ‘Friend’ Request Puts Lawyers in Ethics Trouble, N.J. Law Journal (Aug. 30, 2012).
As with social media research in the juror context, there is little precedent on the ethical aspects of this issue, but the authority that does exist is in general agreement that lawyers can access publicly-available online information of any party or witness, even if the party or witness is represented. The rationale is that if the online information is publicly-available (such as a public Facebook profile), it is no different than if the party or witness had published an article in print or online media. See, e.g., N.Y. State Bar Assoc., Comm. on Prof. Ethics Op. No. 843 (Sept. 10, 2010).
As with jurors, however, the authorities also generally agree that lawyers may not seek to access non-public portions of a represented person’s social media accounts. Moreover, also as with jurors, a lawyer may need to cease viewing even the publicly-available portions of these social media accounts if the represented party or witness learns that the lawyer is monitoring their online activity, as continued monitoring could be viewed as an attempt to intimidate or harass the party or witness. Practitioners should be particularly mindful of this issue when searching sites such as LinkedIn, which show users the names of other site members who have viewed their profile. And, lawyers who delegate this type of online research to paralegals or other non-lawyers should understand and convey these boundaries, as pleading ignorance of precisely how the research could be and was being conducted is risky.
Although a lawyer cannot seek to communicate directly with represented parties or witnesses by, for example, attempting to “friend” them on Facebook, a lawyer may do so with unrepresented parties and witnesses, but only if the lawyer does not use deception to obtain the online connection. Most of the ethics opinions to address this issue have stated that the attorney must disclose both her true identity and the reasons for her connection request; i.e., the lawyer must not suggest that she is disinterested. See, e.g., San Diego County Bar Assoc., Legal Ethics Comm. Op. No. 2011-2 (May 24, 2011).
Practitioners also can avoid the ethical risks associated with using social media to obtain informal discovery of parties and witnesses by serving requests for formal discovery of those persons’ online information. For example, lawyers can serve direct discovery requests on other parties to the case or serve subpoenas on third-party witnesses. Lawyers also may be able to subpoena social media providers to obtain information about a particular individual’s online accounts. Courts generally have been receptive to such discovery requests. See, e.g., Loporcaro v. City of New York, 2012 WL 1231021 (N.Y. Sup. Ct. Apr. 9, 2012).
Social media research in litigation can offer significant tactical benefits, but it also presents ethical risks. Thus, it is important for practitioners to stay abreast of the law in this area, particularly given its rapid and continuing evolution. Among other things, lawyers should know all pertinent procedural and ethical rules, including the procedures of the particular court and judge presiding over their case. We will continue to monitor this topic closely in the coming months.