Pennsylvania Supreme Court on ethically mining social media evidence
Social media can be a gold mine for litigation attorneys. There’s a wealth of information available online that can often be used to the benefit of your client at trial. The trick is knowing how to ethically access social media evidence. Because if you don’t fully understand the ins and outs of the various social media platforms and your ethical obligations, your attempts to obtain online evidence favorable to your client’s case could have the opposite result: it could be precluded from use at trial, and you could even face disciplinary action.
The latter is what occurred when a Pennsylvania attorney’s law license was suspended by the Supreme Court of Pennsylvania. In Office of Disciplinary Counsel v. Stacy Parks Miller, Miller’s license was suspended, in part, due to her deceptive behavior in creating a fictitious Facebook page in order to obtain evidence while serving as the Centre County District Attorney.
Specifically, it was alleged that Miller created a fictitious Facebook page in 2011, with the end goal being to curb criminal activity relating to the illegal sale of bath salts. The Facebook page was based on a fake social media persona and purported to be the social media account of a young woman who had recently dropped out of college.
After creating the page she sent an email encouraging her staff to send “friend requests” to others from the fake account in order to legitimize the fake account. Specifically she suggested that they use the Facebook account to “masquerade” and “snoop” on Facebook. While the account was being used by the District Attorney’s Office, “individuals represented in criminal proceedings either sent friend requests to the page or received friend requests from the page.”
In her defense, Miller asserted that the Facebook page represented a “proper law enforcement operation.” The Disciplinary Board of the Supreme Court of Pennsylvania disagreed. The Board noted that the mere act of “having a third-person send a friend request to a represented party in order to gain access to the private portion of their profile violates RPC 8.4(c), and that the actions of Miller far exceeded that limited scope of impermissible conduct. Not only did she create a fake Facebook page, she provided her staff with access to it and actively encouraged them to use it to repeatedly interact with and connect with other individuals on Facebook who were suspected of engaging in illegal activities, some of whom were known to be represented by counsel."
Accordingly, the Board concluded that her actions were in violation of her ethical obligations. The Board explained that “(t)he Facebook page created by (Miller) and disseminated to her staff was fake and constituted fraudulent and deceptive conduct inn violation of RPC 8.4(c)…(Miller) induced her staff, both attorneys and non-attorneys alike, to engage in dishonest behavior and to imply disinterest in matters, without correcting any misapprehensions. The staff carried out (Miller’s) directives and used the page to “friend” individuals, some of whom were defendants. (Miller) enabled her staff to engage in deceptive conduct, without specific direction, for an unrestricted period of time. This conduct violated RPC 4.3(a), 4.3(c), 5.3(b), 5.3(c)(1), and 5.3(c)(2).” As such the Board recommended that her law license be suspended for one year and one day.
This is yet one more example of lawyers interacting online without fully understanding their ethical obligations. Certainly there is a wealth of information - and potential evidence - available on social media platforms, and in 2019, willfully ignoring its existence is arguably malpractice. But before attempting to access information posted online, make sure that you have full knowledge of how the platforms work and what your ethical obligations are in regard to accessing that data. Tread lightly and intelligently when mining social media for evidence, lest you face the same penalty as Ms. Miller.
Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase law practice management software for small law firms. 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 Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. You can follow her on Twitter at @nikiblack or email her at firstname.lastname@example.org.