Nicole Black, The Daily Record Newswire
At this point, it’s indisputable: social media is here to stay. It is not the fad that many once believed it was. Instead, it is an Internet phenomenon that has transformed the ways that we connect, interact and communicate.
But for lawyers it’s more than that; the information shared on social media sites is a veritable treasure trove of evidence. For that reason, since 2010, ethics committees across the country have been called upon to opine on the ethics of lawyers mining social media sites for case-related information.
In most decisions, the pivotal issue is whether and how lawyers can ethically access non-public social media information. In other words, can lawyers access information that is only visible by individuals to whom the person being investigated has granted access? In most cases, the answer revolves around whether the
person being investigated is represented by counsel and whether the attorney (or an agent) engaged in deception when attempting to access the data.
See, for example: New York State Bar Opinion No. 843 [9/10/10] (attorney or agent can look at a party’s protected profile as long as no deception was used to gain access to it); New York City Bar Association Formal Opinion 2010-2 (attorney or agent can ethically “friend” unrepresented party without disclosing true purpose, but even so it is better not to engage in “trickery” and instead be truthful or use formal discovery); Philadelphia Bar Association Opinion 2009-02 (attorney or agent cannot “friend” unrepresented party absent disclosure that it relates to pending lawsuit); San Diego County Bar Association Opinion 2011-2 (attorney or agent can never “friend” represented party even if the reason for doing so is disclosed); and New York County Lawyers Association Formal Opinion No. 743 (attorney or agent can monitor jurors’ use of social media, but only if there are no passive notifications of the monitoring. The attorney must tell court if s/he discovers improprieties and can’t use the discovery of improprieties to gain a tactical advantage).
In February, the Oregon State bar Ethics Committee joined the fray. In Op. 2013-189 (Feb 2013) (online: www.osbar.org/_docs/ethics/2013-189.pdf) the committee addressed the following questions: 1. May a lawyer review a person’s publicly available information on a social networking website? 2. May a lawyer, or an agent on behalf of the lawyer, request access to a person’s non-public information? 3. May a lawyer, or an agent on behalf of the lawyer, use a computer username or other alias that does not identify the lawyer when requesting permission from the account holder to view non-public information?
First, the committee concluded that an Oregon lawyer may access an unrepresented individual’s publicly available social media information since doing so is the equivalent of “reading a magazine article or purchasing a book written by an adversary.”
In considering the second question, the committee’s analysis revolved around whether the party was known to be represented by counsel. If the lawyer was unaware that the party was represented, making a “friend” request was permissible, as long as the lawyer responded honestly if the unrepresented party asked for additional information regarding the lawyer’s reason for making the request. However, no such request could be made of a person known to be represented by counsel without express permission from the party’s attorney.
Finally, the committee concluded that under Oregon’s “Covert Activity Exception” (Oregon Rules of Professional Conduct 8.4(b)) — which applies only when only when a lawyer believes in good faith believes there is a reasonable possibility that unlawful activity has occurred — a lawyer may “advise or supervise another’s deception to access a person’s nonpublic information on a social networking website.”
Oregon thus joins a number of other states in addressing this issue and clarifying the circumstances under which a lawyer may ethically mine social media for case-related information.
For those of you who happen to practice law in a jurisdiction that hasn’t yet addressed this issue, the best rule of thumb is to avoid deception when attempting to access non-public social media information. After all, honesty is always the best policy.
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Nicole Black is a director at MyCase.com, a cloud-based law practice management platform. She is also of counsel to Fiandach & Fiandach in Rochester and is a GigaOM Pro analyst. She is the author of the ABA book “Cloud Computing for Lawyers,” co-authors the ABA book “Social Media for Lawyers: the Next Frontier,” and co-authors “Criminal Law in New York,” a West-Thomson treatise. She speaks regularly at conferences regarding the intersection of law and technology. She publishes three legal blogs and can be reached at niki@mycase.com.
