Posted on: 2/14/2013
Eric L. Probst, Porzio Bromberg & Newman
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Social media usage statistics are staggering. Facebook has over 800 million active users, up 200 million over the last year. January 3, 2012, Digitalbuzzblog.com. Twitter has over 100 million active users, and LinkedIn over 64 million in North America alone. Id. YouTube is no exception—"[o]ne hour of video is uploaded to YouTube every second—that's 24 hours of video every 24 seconds, 60 hours a minute, 9 months every 2 hours, a decade every single day and a century every 10 days." February 13, 2012, thesocialskinny.com. If Facebook were a country, it would be the world's 3rd largest. Social Media Revolution 2011, youtube.com. Not surprisingly, social media usage impacts litigation. A recent U.K. survey found that more than a third of divorce filings contained the word Facebook in them, and over 80 percent of U.S. attorneys see the effects of social media in their practice. May 21, 2012, blogs.smartmoney.com.
These numbers raise the following questions: If you, as an attorney, are not using social media, then why not? And, if, as an attorney or a firm, you join the twenty first century Century and the social media community, the second question to ask is what Rules of Professional Conduct apply (for they do) to my use of social media?
The purpose of social media usage for attorneys is varied: investigative, networking, marketing, advertising, and, of course, social. Equally as varied are the American Bar Association Model Rules of Professional Conduct ("Model Rules" or "Rules") and state ethics rules that apply. This article will address the Model Rules that most apply to a litigator's use of social media.
Initially, a lawyer should read Model Rule 1.1-Competency-to begin answering the above-posed questions:
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
This Rule would seem to require a working knowledge of social media. In fact, the ABA Commission on Ethics 20/20 recently addressed the interplay of competence and technology in its final resolutions and report to the ABA House of Delegates. Notably, the Commission reported that maintaining competence under Rule 1.1 requires a lawyer "to keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject." ABA Commission on Ethics 20/20, Comment  to Rule 1.1 (emphasis in original). The Commission concluded that "competent lawyers must have some awareness of basic features of technology[,]" and found that:
The proposed amendment, which appears in a Comment, does not impose any new obligations on lawyers. Rather, the amendment is intended to serve as a reminder to lawyers that they should remain aware of technology, including the benefits and risks associated with it, as part of a lawyer's general ethical duty to remain competent.
Id. The Report does not mention social media, but the implication is clear, or, at the least, cannot be ignored.
For litigators, especially those defending personal-injury matters, Rule 1.3-Diligence, likewise, requires reading: "A lawyer shall act with reasonable diligence and promptness in representing a client." At the outset of representation, counsel should ask clients about their social media use. Ample reported decisions exist supporting a defendant's right to request the production of social media postings, text messages, and chat room discussions. For instance, in a case discussed below, defense counsel may have violated Rule 1.3 had they not investigated and ultimately discovered plaintiff's Facebook posts—posts that undercut plaintiff's case. By not diligently (or knowing about) social media, that attorneys' omission could have violated the Rules of Professional Conduct.
Pretexting—Friending the Enemy
"Friending the enemy"—or the enemy's friends—is a valuable way to obtain information about a plaintiff, especially when defending a personal-injury lawsuit. Indeed, social media sites such as Facebook offer a potential treasure trove of discoverable and relevant evidence—photographs, diaries of vacations, status updates, off-color comments, group affiliations, and witnesses. Social media discovery does have its boundaries, some of which are imposed by the technology, and others, by the Model Rules. However, pretexting—using a false motive to obtain information—is circumscribed by the Model Rules and some recent ethics opinions.
The lawyer investigating an individual or company via social media must appreciate that social media—and this is why a working knowledge of it is required under Rule 1.1—is different than more traditional sources of discovery, such as telephone or in-person interviews. Facebook users have a choice of privacy settings that can often limit the information available for public review. Some users choose not to use any privacy settings and their profiles, personal information, pictures, comments, and posts can be seen by anyone. Some users allow only "friends" or "friends of friends" to view this information. Others customize each category of information, which can include or exclude specific groups, friend lists, or specific individuals. In latter case, even if you are "friends" with an individual, they can control the availability of information you see. Additionally, private emails are exchanged via in-box. If a user posts to another user's profile (timeline), the person whose profile (timeline) the post is on controls who can view the post. In other words if Mrs. A posts something on Mr. B's profile, Mrs. A has no control over who views the post. Facebook users can be "tagged" in pictures by other users. If the user does not want the picture to show up on his/her profile, the user must untag themselves. However, the user cannot delete the picture from their friend's profile. So an unflattering or private picture of the user will remain on their friend's Facebook page. So if you are at a party dancing and drinking all night and several other users take pictures of you and put it on their Facebook pages, you cannot remove those pictures (like it or not). Even users who keep their profiles private, usually allow anyone to view their friend lists. Information and pictures of the user can often be found on the pages of their friends' profiles which are more often than not available for public review. Thus, the information is out there for the competent attorney and investigator to find.
However, an attorney cannot deceive a person via a social media site to obtain information about him, a plaintiff, or any other aspect of a case. Further, attorneys cannot instruct their paralegals or their investigators to attempt to "friend" plaintiffs or witnesses if they could not do it themselves. Five Model Rules control "pretexting" and bear reading.
Rules 4.1, 4.2, 4.3, 5.3, and 8.4(a) and (c) place restrictions on a lawyer's, or his/her assistant's or agent's, communications with a third party. Rules 4.1 and 8.4(c) prohibit misrepresentations or "pretexting." Rules 5.3 and 8.4(a) apply to paralegals and non-legal assistants, such as investigators. Simply put, if an attorney cannot contact a represented person (Rule 4.2), or mislead a fact witness into granting him access to social media information, then she cannot instruct her paralegal to do the same.
The Philadelphia Bar Association Professional Guidance Committee addressed a lawyer's ethical obligations in the context of non-lawyer personnel who search for potential litigation evidence on social networking sites. The committee concluded that it would be a violation of Model Rule 8.4 for a lawyer to instruct (or permit) non-lawyer personnel to attempt to "friend" a non-party witness for the purpose of accessing information on the witness's Facebook page, unless the lawyer's agent expressly disclosed who he was and the purpose of his friend request. Phila. Bar Assoc. Op. 2009-02; Westlaw, at 2009 WL 934623. The committee concluded that failing to advise the witness about the purpose of the contact was enough to cause a violation of the Rules. Notably, the witness's practice of accepting all friend requests did not persuade the committee to find that an attorney or her agent could friend the witness without disclosing their identity and intent. It concluded that "[d]eception is deception, regardless of the victim's wariness in her interactions on the internet and susceptibility to being deceived." Id. at 3.
Other ethics committees have reported on this issue as well, with different results. See N.Y. Comm. on Prof'l Ethics, Op. 943 (Sep. 10, 2010) ("Obtaining information about a party available in a [public] Facebook or MySpace profile is similar to obtaining information that is available in publicly accessible online or print media, or through a subscription research service such as Nexis or Factiva, and that is plainly permitted."). However, the distinction between the New York and Philadelphia opinions are significant. In the New York opinion, the attorney did not seek to obtain information directly from a witness, but rather obtained information that was publicly available on a Facebook page that all people could access.
The type of matter also dictates whether pretexting will be allowed. Ethics commissions have been more lenient in allowing pretexting during investigations of civil and intellectual property rights. See N.Y. City Comm. on Prof'l Ethics, Formal Op. 2010-2; Alabama State Bar Office of the Gen. Counsel Op. 2007-05 ("[d]uring pre-litigation investigation of suspected infringers of intellectual property rights, a lawyer may employ private investigators to pose as customers under the pretext of seeking services of the suspected infringers on the same basis or in the same manner as a member of the general public."). Therefore, the nature of the case and the attorney's manner of contact could influence the determination of whether the extent to which an attorney friends the "enemy" or the enemy's friends complies with ethical guidelines.
The advisory opinions implicate several of the rules addressed above. For example, if the non-lawyer personnel had suggested friending the enemy to the attorney, Model Rule 1.1 would require the attorney to understand the concept of "friending" and social media before authorizing the non-lawyer to contact the witness. Model Rule 1.3 can be interpreted to require the diligent attorney to ask the plaintiff and non-party witnesses about social networking use during depositions and through written discovery requests. And Rule 5.3 requires attorneys to affirmatively communicate what the non-lawyer personnel can and cannot do when contacting someone through social media.
An emerging consensus is that it is ethically improper for lawyers or their agents to obtain such information through the use of subterfuge or misrepresentation. However, new opinions support the conclusion that there is no ethical impediment to lawyers obtaining information from social media sites that are already publicly available.
Social media content is evidence. Therefore, Model Rule 3.4(a) applies to prohibit lawyers from unlawfully altering or destroying social media posts and from assisting others from doing so. A lawyer's ethical duty to preserve electronic evidence extends to social networking profiles.
Last year, a Virginia court sanctioned a plaintiff and his attorney for deleting a Facebook profile and pages that contained photographs that undercut a widowed husband's claim for damages stemming from the wrongful death of his wife in an automobile accident. Lester v. Allied Concrete Co., Case No. CL09-223 (Va. Cir. Ct. Sep. 1, 2011), Lester v. Allied Concrete Co., Case Nos. CL08-150, CL09-223 (Va. Cir. Ct. Oct. 21, 2011). During discovery, Defendants discovered a photograph of Plaintiff holding a beer can while wearing an off-color tee-shirt that it planned to use to attack the credibility of post-traumatic stress disorder claim. Subsequently, Plaintiff deleted 16 photographs on Facebook, and then deleted his Facebook page, and then lied that he ever had a Facebook page, though his counsel denied having instructed him to delete the postings. However, testimony revealed that the attorney told his paralegal to tell Plaintiff to "clean up" his Facebook entries because "we do not want blowups of this stuff at trial." After conducting a hearing, the trial court found that Plaintiff's counsel had "created a scheme to take down or deactivate [his client's] Facebook page." Ultimately, the court sanctioned Plaintiff $180,000, and Plaintiff's counsel $542,000, and referred the matter to the Virginia Bar Association and Commonwealth's Attorney for the City of Charlottesville for investigation.
The ABA Commission on Ethics 20/20 also recommended rule changes pertaining to confidentiality. These recommended changes impact how attorneys safeguard a client's documents, communicate with third parties, and advertise recent successes via social media. The Commission recommended adding the following language to Rule 1.6-Confidentiality of Information: "A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client." Explaining their proposed recommendations, the Commission stressed that a lawyer must take reasonable steps to safeguard confidential information. According to the Commission, the circumstances of the representation or the nature of the case may require lawyers to implement "special security measures." Alternatively, such measures could be requested by a client. Thus, a lawyer should be aware of a client's technology capabilities, demands, and security needs at the outset of representation, and address them with adversaries and courts when necessary.
Hitting the send button before editing what you wrote is another danger of social media. Ask any athlete or Charlie Sheen how dangerous Twitter can be. The same is true for lawyers. Legal professionals need to carefully self-edit their social media posts. If using Facebook for social purposes or blogging about a recent court decision or legal victory, lawyers should be mindful not to post a message that discloses, even unintentionally, a client's confidences. See Rule 1.6 ("A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is authorized by paragraph (b)."). Lawyers should draft success stories in the vaguest of terms to avoid disclosing confidential information about the client, the case, or the settlement.
Social media is here to stay and lawyers should embrace it for many reasons. Litigators need to have an understanding of Facebook, Twitter, YouTube, blogs, and chat rooms to effectively investigate, prepare, and try their cases, especially personal-injury and IP cases. Identifying the plaintiff's and client's use of social media is an off-shoot of e-discovery that cannot be ignored. If a lawyer fails to understand the basic workings of social media and the potentially relevant information contained on the sites, he runs a significant risk of violating the most basic of the Model Rules of Professional Conduct.
Eric L. Probst is counsel at Porzio, Bromberg & Newman, P.C. in Morristown, New Jersey and a member of the firm's Commercial Litigation Department. Mr. Probst represents clients in complex commercial, construction, products liability, and consumer fraud cases. He is a member of DRI and DRI's Electronic Discovery Practice Group. Mr. Probst has published and presented on the use of e-discovery requests against plaintiffs in pharmaceutical personal-injury matters.