Lawyers and Social Media in 2016
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New Jersey Court On Ethical Implications Of Lawyers Mining Social Media

 

Stacked3Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

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New Jersey Court On Ethical Implications Of Lawyers Mining Social Media

I’ve written many times in the past about how lawyers can ethically mine social media for evidence to support their clients’ cases. A number of ethics committees have already addressed this issue and most recently, the New Jersey Supreme Court considered whether the head of the state’s attorney disciplinary body could prosecute the lawyers for their agent’s alleged Facebook spying on their client’s adversary while litigation was pending, despite a local disciplinary commission concluding that the lawyers’ conduct was ethical.

In this case, John J. Robertelli v. The New Jersey Office of Attorney Ethics (A-62-14) (075584) (online: http://www.judiciary.state.nj.us/opinions/supreme/A6214JohnRobNJ.pdf), the plaintiffs in this case represented the defendants in a personal injury lawsuit. It was alleged that during the pendency of the personal injury claim, the defendants asked one of their paralegals to research the Internet, including social media sites, for evidence relevant to the case. The paralegal did so and initially discovered a Facebook profile belonging to the injured plaintiff that was publicly accessible.

However, at a later pointing time, the injured plaintiff revised his Facebook profile’s privacy settings, making it so that his posts could only be viewed by his Facebook “friends.” Once this occurred, according to the opinion, “plaintiffs directed the paralegal to access and continue to monitor the non-public pages, and she submitted a ‘friend request’ to (the injured plaintiff).”

In doing so, “the paralegal did not misrepresent her identity, but she also did not reveal that she worked for defendants’ law firm and was investigating (the injured plaintiff).” Her friend request was accepted and the injured plaintiff later learned of the paralegal’s actions. As a result, among other things, his counsel filed an ethics grievance alleging that her actions were improper since she contacted their client without first reaching out to them. The Secretary of the District II Ethics Committee then reviewed this claim and concluded that even the allegations were true, they did not amount to unethical conduct.

The issue was appealed and eventually made its way to the New Jersey Supreme Court, which was tasked with deciding the very limited issue of whether “the Office of Attorney Ethics (OAE) may investigate a grievance against an attorney alleging misconduct violating the Rules of Professional Conduct (RPCs) after the Secretary of a District Ethics Committee (DEC) has declined to docket the matter.”

The Court concluded that the ethics probe could go forward, explaining that “No reported case law in our State addresses the sort of conduct alleged.” This conclusion was based, in part, on the fact that the defendants’ attorneys alleged in their complaint that because they lacked familiarity with how Facebook worked, they did not intentionally act unethically. As explained in the Court’s decision, they claimed “that they acted in good faith at all times and had not committed any unethical conduct. They explained, in part, that they were unfamiliar with the different privacy settings on Facebook.”

This defense does not bode well for the defendants’ attorneys. That they failed to learn about the ins and outs of Facebook prior to directing their agent to mine it for evidence is an unconvincing argument. If you’re going to use a particular type of technology in your practice, you’d be wise to ensure that you understand how it works. In fact, recent amendments to the comments to the ABA’s Model Rule 1.1, which have in turn been adopted by many states, suggest that lawyers have an obligation to stay abreast of changes in technology. The failure to do so may very well amount to an ethical violation at best and malpractice at worst.

This case is yet another example of what I often tell lawyers: when mining social media for evidence, err on the side of caution. If you’re not sure whether it’s ethically permissible to engage in a certain action, then don’t do it. Better safe than sorry.

 

Nicole Black is a Rochester, New York attorney and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for the modern law firm. She is also 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.