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Lawyers, ethics, and social media

It seems like every other day there is a new article or blog post about social media and the law. The ABA Journal Magazine‘s February 2011 issue features an article by Steven Seidenberg entitled Seduced: For Lawyers, the Appeal of Social Media Is Obvious. It’s Also Dangerous is a bit better than many because it analyzes how specific ethics rules apply to the use of social media.

The article mentions the rich resource that social media can be for investigating people. All of the examples provided are from family law cases. Other examples I have come across involve workers’ compensation cases and the character of witnesses, victims, and defendants in criminal cases. I would be interested in hearing about other examples you have seen.

The ethics issue in performing this type of research is clearly how the attorney acquires the information. If the individual’s profile is publicly available, there seems to be no problem. But many times profiles are not publicly available. Then what? The easiest option is through your client, who may have access to the information. If the individual is represented by counsel, you cannot friend them–sending the friend requests violates ABA Model Rule 4.2 prohibiting communication with a party represented by counsel. The issue is stickier with a person not represented by counsel. It is clear you or your investigator cannot use false pretenses to gain access to social network profiles (ABA Model Rule 4.1(a)), but what about withholding information? For example, your investigator could send a friend request to a witness, knowing that some people accept all friend requests. Is that OK?

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  1. lenael
    January 28, 2011 at 7:57 pm

    In one sense, the warning about being careful about what you put on the internet for the world to see isn’t new. For years now, since the start of some of these social networks like myspace and facebook, students have been told potential employers and schools of higher education check these sites to make decisions on hiring and admissions. I have even filled out applications for scholarships and fellowships specifically asking for any social networks or blogs I have joined.
    Some of the ways my friends have tried to get around the issue include signing up under a pseudonym so people you don’t want to find you can’t, creating multiple accounts (one professional and one for friends), restricting access and limiting what others can post on your page (for example, not having a “wall” for posts), and some have even deleted their accounts altogether.
    Now that more and more adults are using social media, the focus has turned from not getting the job or school of your choice to losing custody of your child or losing your workers’ compensation, like the article mentions. Even as a law student, I worked on a case where the file included pictures on comments posted on the party’s facebook page that undermined his fitness as a parent. To me, this was just another reason to be even more careful about what you post. However, I’ve never considered the ethical ramifications on the one doing the investigating.
    The question you, and the article, posed of whether it is permissible to send a friend request to an unrepresented opponent without stating your reason really made me think. At first I could not give a reason why it would be impermissible as long as the lawyer or investigator did not misrepresent him or herself. The opponent should have thought more carefully about who he accepted. However, there still was an air of deception about the situation. After all, how many people can say they haven’t accepted a friend request or two from someone they weren’t exactly sure if they knew.
    Well, after reading the article, I was interested to find that the New York City Bar Association and Philadelphia Bar Association take opposing views on the issue, with New York City allowing the friend request and Philadelphia forbidding it. However, the other cases in the article concerning laywers and judges interactions and communication through social media seemed a little more cut and dry to me at least. As Dimitri says in a comment to the article, “What would be unacceptable in person is and would be unacceptable through the computer.” (Dimitri, Comment on Steven Seidenberg, Seduced: For Lawyers, the Appeal of Social Media Is Obvious. It’s Also Dangerous, Jan 26, 2011 10:18 AM CST). This seems to be a good rule of thumb.

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