By: Robert Keeling, Partner, Sidley Austin LLP and Nicholas Giles, Associate, Sidley Austin LLP.
For corporate defendants, informal discovery can be a powerful litigation tool. Without the costs, delays, and procedural hurdles that accompany formal discovery, attorneys can uncover critical facts that may dramatically alter the course of a case. Informal discovery is nothing new; courts and litigants alike have long recognized that, in the words of the Ninth Circuit Court of Appeals, it is “often the most effective component of the overall discovery process.” (Geibel v. Sears, Roebuck & Co., 1996). But the past decade has seen informal discovery expand into a new arena: the dynamic world of social media.
The numbers are staggering. Today, roughly eighty percent of American adults with Internet access use social media regularly, while fifty-two percent of all Americans have a personalized profile on at least one platform. This breadth makes it a treasure trove for those seeking information on just about anyone—from opposing parties to opposing counsel, experts, lay witnesses, and even jurors. But there is cause for caution. Lawyers engaged (directly or indirectly) in informal discovery via social media have important ethical duties and professional obligations. This article briefly outlines some ethical issues that may arise in this area.
Avoiding Fraud & Dishonesty
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For lawyers, dishonest or fraudulent conduct is strictly forbidden. Embodied in the American Bar Association’s Model Rule 8.4, a version of this broad rule governs lawyers in virtually every jurisdiction. Thus, in-house lawyers and outside counsel alike must be mindful that their social media snooping does not venture into the deceptive. On many social media platforms, users are able to render certain information private, viewable only by those with whom the user connects. Here, the temptation to send a “friend” request, or to otherwise seek access to such information may be great.
The ethics committees of several bar associations, however, have warned that such conduct may violate ethical rules. A 2012 opinion from the New Hampshire Bar Association concluded that a lawyer wishing to gain access to an individual’s non-public social media content must use her real name, reveal that she is an attorney, explain her involvement in the litigation, and reveal the identity of her client. (Opinion 2012-13/05). Likewise, the Virginia State Bar notes on its website that “[/fusion_builder_column][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][p]retextually ‘friending’ someone online to garner information useful to a client or harmful to the opposition violates Virginia Rule 8.4(c) prohibition against ‘dishonest, fraud, deceit or misrepresentation.’” A Committee of the New York City Bar Association has opined that slightly less may be required to remain within ethical bounds, suggesting only that a lawyer must use her full name and real social media account in seeking access to non-public information. (Opinion 2010-2). Nonetheless, caution in this area is important.
Communication with Represented Parties
The lawyer’s ethical obligation to refrain from contacting represented persons concerning the subject of the representation, embodied in Model Rule 4.2, is likewise among the most well-known. A lawyer may not communicate with such persons absent the consent of opposing counsel or court order. This seemingly straightforward principle can become murky when lawyers turn to social media. In this context, what constitutes communication?
On many social media platforms, certain actions—such as the aforementioned “friend” request on Facebook—will prompt an email or other notification to be sent to the individual. If that person is represented by counsel, does such conduct violate ethical rules? An ethics committee of the San Diego County Bar has suggested that it may under certain circumstances. The Committee reasoned that when such a request “is motivated by the quest for information about the subject of the representation,” it is also “about the subject matter of that representation” and thus unethical—even if the attorney uses her own name and makes no representations regarding her motive. (Opinion 2011-2).
None of this is to suggest that social media should be off limits to lawyers. As the Commercial and Federal Litigation Section of the New York State Bar Association made clear in a 2014 opinion, a “lawyer may view the public portion of a person’s social media profile or public posts even if such person is represented by another lawyer.” (Social Media Ethics Guidelines, 2014). Rather, it confirms that lawyers must remain informed and aware. Before resorting to social media in informal discovery, a lawyer should consider whether her attempt to uncover information will result in an email or other notification to a represented party. Both Facebook and LinkedIn—two of the most commonly used social media networks in operation—do precisely this when used in a certain fashion. Remaining abreast of the various avenues of social media may well confer a litigation advantage, but that advantage can be undone if not coupled with an understanding of the mechanics and consequences of those platforms as well.
Supervising the Work of Non-Attorneys
While a typical lawyer is likely comfortable with much informal discovery, she may turn to a paralegal or assistant for help with social media searching. However, as Model Rule 5.3 makes clear, a lawyer violates ethical guidelines when she directs—or later approves—the conduct of a non-lawyer that would violate ethical principles had it been the conduct of the lawyer herself. Applying this principle, a committee of the Philadelphia Bar Association has concluded that an attorney may not ask a non-attorney to request access to non-public information online unless the non-lawyer reveals both her identity and her purpose in doing so. (Opinion 2009-2).
Defending Informal Discovery
Thus far, this article has focused on using social media to advance informal discovery offensively—that is, to gather useful information about an ongoing or potential litigation. However, it is important to keep in mind that an opposing party may resort to similar tactics. Increasingly, corporate defendants have a substantial Internet footprint and a robust social media presence. While careful stewardship of such information is vital to good business, it may also help mitigate litigation risk. Consider, for instance, that a plaintiff bringing an unlawful marketing or copyright infringement claim may rely on information a company disseminates to the public in any manner—including via channels like Facebook and LinkedIn. Moreover, information on social media platforms may even become subject to preservation duties and hold notices. A recent opinion from the Florida bar explored “the ethical obligations on advising clients to ‘clean up’ their social media pages before litigation is filed to remove embarrassing information.” (Opinion 14-1). The opinion concluded that a lawyer “may advise that a client change privacy settings” on social media profiles, in order to render certain information private, and that certain information may even be deleted or removed altogether, provided an adequate record or copy is kept of any information that the client has an obligation to retain.
Conclusion
Discovery is a critical stage of any dispute, and lawyers often serve their clients when they pursue information through a number of different channels—both formal and informal. The explosion of social media has made it an unavoidable component of this strategy. As lawyers familiarize themselves with this ever-changing resource, they should consider how they apply in this new context. A failure to do so may have far-reaching consequences, from a set-back in the litigation to sanctions before the bar.
Robert Keeling, Partner, Sidley Austin LLP and Nicholas Giles, Associate, Sidley Austin LLP. This article has been prepared for informational purposes only and does not constitute legal advice. This information is not intended to create, and the receipt of it does not constitute, a lawyer-client relationship. Readers should not act upon this without seeking advice from professional advisers. The content therein does not reflect the views of the firm.
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