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Lawyers, ethics, and social media

January 24, 2011 1 comment

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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