Ethical considerations for using social media as a means of discovery and investigation

Ethics Corner Article

Dear Ethics Committee:

I have a client who I represent in a contentious custody proceeding. She came to me recently and adamantly insisted that I “dig deep” into the background of her ex-husband and his new girlfriend. She would like me or an investigator to research her ex-husband and his girlfriend through their online social media pages. She is convinced that there is “gold” there. How far should I go with this and what ethical issues am I likely to encounter?

Thorough investigation and aggressive pre-trial discovery can make the difference between success and failure in litigation. Social media can be an effective way to take a deep dive into the background of a witness and could potentially bring an opponent’s case to a grinding halt. However, the ethical pitfalls in this type of investigation are numerous and a lawyer and a lawyer’s agents are advised to proceed carefully.

Preliminarily, it is important to note that in this area, the actions of your investigator are your own actions, for the purpose of an ethical violation. Specifically, a lawyer is ethically responsible for the conduct of non-lawyers engaged in investigation if the lawyer asked the non-lawyer to take certain action or was aware of such conduct and knowingly failed to make reasonable remedial efforts. See Rule 5.3. Similarly, in discussions with a client about these issues, the lawyer should be mindful that counseling a client to engage in fraudulent conduct, (e.g., misrepresenting one’s identity online) is contrary to Rule 1.2(d).

The following are the primary Rules of Professional Conduct that a lawyer should be familiar with when preparing to undertake investigation via social media.

Rule 4.1 – Truthfulness in statements to others

The pertinent aspect of this rule requires that “in the course of representing a client, a lawyer shall not knowingly…make a false statement of material fact or law to a third person.” See Rule 4.1(a).  Knowingly is defined by the Rules as being “actual knowledge of the fact in question” and may be “inferred from circumstances.” See Rule 1.0.

During investigation, a lawyer must ensure that no misrepresentations are made through social media as a means of gaining access to information relevant to a case. Most social media sites require one’s personal identity to be disclosed in order to gain access to a user’s “private” pages.  Upon receiving such a request, the user decides whether to allow access.  It would be improper to assume a false identity to gain access to a “private” page.  Thus, a lawyer’s access will likely be limited to only the information that the user has decided to make accessible to the public. Certain limited exceptions may exist here such as the use of “discrimination testers” in civil cases and undercover investigators in criminal investigation. Apple Corps Ltd. v. International Collectors Soc., 15 F. Supp. 2d 456, 472-476 (D.N.J. 1998). For a more complete discussion on “friend requests” in social media and the ethical permissibility of certain types of communication in this specific area, see N.H. Bar Ethics Committee Advisory Opinion, #2012-13/05 (“Social Media Contact with Witnesses in the Course of Litigation.”)(N.H. 2013)

Rule 4.2 – Communication with person represented by counsel

The risk of stumbling into communication with a represented party is higher when social media access is as simple as a few keystrokes or the click of a friend request.

In short, the Rules state that a “lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter.” See Rule 4.2.

Certain exceptions apply here as well. A lawyer can seek consent from the represented person’s counsel or request a court order allowing the communication. Id. This rule may also exempt certain investigative activities by governmental entities prior to commencement of criminal or civil enforcement. See 2004 ABA Model Rule 4.2, comment 5. Finally, when approaching a member of a larger entity like a corporation or governmental body, a lawyer must assess whether the member is within the group of people associated with the entity that is “off limits.” For a complete discussion of this “control group” concept, please see Ethics Committee Comment to Rule 4.2.

Rule 8.4 – Misconduct

This overarching rule overlaps substantially with Rule 4.1. When considering Rule 8.4 and application to social media and investigation, one should note that the rule prohibits “conduct involving dishonesty, fraud, deceit or misrepresentation.” See Rule 8.4 (c). However, in light of the overlap, the exceptions applicable to Rule 4.1 should apply as well to Rule 8.4.

Rule 8.4 also includes the prohibition against any “criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.” See Rule 8.4 (b). While this seems perfectly obvious, there are scenarios that may be more subtle. For example, a lawyer should have a plan in place if an investigator comes in contact with evidence on social media, whether in messages received relating to the investigation through social media platforms or in information posted on social media by a client. Mishandling evidence on social media by deleting information or data could constitute a criminal act of falsifying evidence under NH RSA 641:6 and thus misconduct under Rule 8.4.

Rule 3.7 – Lawyer as a witness

Finally, refrain from doing your own investigation or asking another lawyer in your firm to do so, even through social media. If a lawyer, or an associate in the firm, encounters evidence on social media that is relevant to the litigation, it could trigger a situation where the firm would be forced to withdraw if that lawyer is the only witness. See Rule 3.7. Certain background review of parties or witnesses may be acceptable, but a lawyer should be wary of crossing the line into accessing information that could become contested and material to the litigation.

This article is third in a series of Ethics Corner articles on Social Media and Ethics and was submitted for publication to the NHBA Board of Governors at its January 6, 2020.

The Ethics Committee provides general guidance on the New Hampshire Rules of Professional Conduct and publishes brief commentaries in the New Hampshire Bar News. New Hampshire lawyers may contact the Committee for confidential and informal guidance on their own prospective conduct or to suggest topics for Ethics Corner commentaries by emailing the Ethics Committee Staff Liaison.

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