Virginia ethics committee rules on virtual practices
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Lawyers: Use your head when mining social media for evidence

Stacked3This week's Daily Record column is entitled "Lawyers: Use your head when mining social media for evidence."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

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Lawyers: Use your head when mining social media for evidence

Mining social media for evidence to support a case is all the rage these days. That’s because lawyers are finally comprehending the popularity and vast reach of social media. As a result, attorneys are quickly realizing that social media has the potential to be a gold mine of evidence in support of their clients’ cases.

Of course, as an attorney, you’re subject to ethical rules which necessarily affect how and when you can mine social media for evidence. Most lawyers are aware of these limitations and carefully consider their ethical duties before diving into social media to mine for evidence.

But not all of them, as evidenced by the actions of former Cuyahoga County, Ohio, Prosecutor Aaron Brockler, who has admitted to assuming the alias of a woman on Facebook and then contacting alibi witnesses of an accused killer whom he was prosecuting. He pretended to be a fictitious former girlfriend of the accused and then engaged the witnesses in a Facebook chat, during which he encouraged the witnesses to change their testimony.

Once his actions were discovered, Brockler was terminated for his unethical actions. Surprisingly, Brockler continues to maintain that his deceptive actions were perfectly acceptable and has been quoted by Sun News as saying: “Law enforcement, including prosecutors, have long engaged in the practice of using a ruse to obtain the truth … I think the public is better off for what I did.”

Clearly Brockler has failed to stay abreast of the multitude of ethics decisions that have been handed down over the past few years which address attorneys’ ethical obligations when mining social media sites for evidence. Overwhelmingly, ethics committees across the country have concluded that lawyers may not engage in deception when attempting to obtain information on social media, regardless of whether the party from whom information is sought is represented by counsel.

See, for example: Oregon State bar Ethics Committee Op. 2013-189 (lawyer may access an unrepresented individual’s publicly available social media information but “friending” known represented party impermissible absent express permission from party’s counsel); 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).

Obviously, Brockler didn’t get the “no trickery” memo, since the entirety of his Facebook interactions were rooted in deception. He also seems incapable of understanding the concept that lawyers are governed by a code of ethical conduct not applicable to police officers.

Perhaps now that he has more free time on his hands, he’ll make good use of it by studying the ethical rules of conduct governing Ohio attorneys. And, the next time you decide to mine social media for evidence, why not ensure that you’re complying with the applicable ethical rules of conduct as well? That way, unlike Brockler, you won’t put your job — and quite possibly your law license — at risk.

Nicole Black is a Rochester, New York attorney and Director of Business Development and Community Relations at MyCase, an intuitive cloud-based law practice management platform for the modern law firm. She is also a GigaOM Pro Analyst and 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 is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at niki@mycase.com.

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