By now, there is now question that your law firm should be searching opposing parties, witnesses, and even your own client’s social media profiles for discoverable information. But, if your attorneys and paralegals are doing the investigations themselves, they may be putting your law firm at risk. Let’s break down the ethical and legal risks that your law firm may face when its attorneys and paralegals conduct social media investigations themselves.
If your attorneys and paralegals are doing their own searches on an opposing party’s LinkedIn profile, the person they are searching is going to know about it
Ethical Risks Arising from Law Firm Social Media Investigations
There’s a ton of discoverable information on your opposing party and witnesses social media profiles, but oftentimes this information is hidden behind privacy settings. This means you may have to send a friend request or a LinkedIn connection in order to get access to that information. However, if your attorneys and paralegals are sending a friend request, they may be communicating with a represented party in violation of the legal ethics rules.
There are various legal ethics opinions across the country that say when your attorneys or paralegal send a friend request, or a LinkedIn connection, that is a communication to a represented party. In a nutshell, the communication is that “I want to access your profile for use in litigation” which would violate the ethics rule unless you had consent to contact the represented party.
Furthermore, if your attorneys and paralegals are doing their own searches on an opposing party’s LinkedIn profile, the person they are searching is going to know about it because LinkedIn tells people who was viewing their profile. That’s going to have them lock up their information and let them know that your law firm is on the trail.
Legal Risks When Law Firms Conduct Social Media Investigations
Let’s say that your attorneys were able to get access to an opposing party or witness’s social media information. The question is: who is going to authenticate it? If your attorneys and paralegals are the ones conducting the search and want to admit that information into evidence, they’re going to have to authenticate it themself. This may result in your attorneys or paralegals being called to the witness stand, having to authenticate the social media content that they collected. This will be uncomfortable for your attorneys, your paralegals, and most importantly, your clients to see their own attorney on the stand, having to authenticate vital social media evidence.
How Can Your Law Firm Conduct Legal and Ethical Social Media investigations?
With these risks in mind, how can your law firm collect social media evidence in a way that’s going to advance your cases, but not run into ethical rules or risk putting your attorneys and paralegals on the stand? The answer is to work with SMI Aware. SMI Aware’s team of independent social media investigation experts can collect all of the information that you need in each of their cases. SMI’s proprietary application will collect the information the same way every time, using the same tools, the same method, the same processes, and therefore, the same compliance with the legal ethics rules. You owe it to yourself to collect the information in a way that’s going to help your cases, but not run into ethical risks or risk putting your attorneys and staff on the stand.