When looking for evidence in a case, social media is an obvious choice. People share so much of their lives and their opinions on social media. Social media accounts can provide additional information beyond what can be obtained through traditional means of gathering evidence. People are often much more open about providing information through public posts, chats, and photos that they share on their social media accounts. These accounts often provide clues and information about habits, lifestyle, assets, current physical and mental conditions, and even infidelity. This information could be valuable evidence in a worker’s compensation case, product liability suit , or other forms of litigation.
But accessing that information can be a challenge. It can be tempting to consider friending someone to avoid having to seek consent or to avoid the cost associated with getting a subpoena for the social media outlet and its users. But friending someone can be the wrong choice as many states have adopted the Model Rule of Professional Conduct 8.4.
Model Rule of Professional Conduct, Rule 8.4
Rule 8.4 addresses maintaining the integrity of the legal professional. It defines several behaviors that are professional misconduct for a lawyer to participate in:
- (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another
- (b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects
- (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation
- (d) engage in conduct that is prejudicial to the administration of justice
- (e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law
- (f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law
- (g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline, or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.
The portion of Rule 8.4 that applies to friending is subsection C. It is professional misconduct for any lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
Two bar opinions have addressed the role that Rule 8.4 plays in friending a person to gather evidence. The Philadelphia Bar Professional Guidance Committee concluded that an investigator working for a lawyer could not send a friend request to a hostile third-party witness. They concluded that this was deceptive since the investigator was omitting a highly material fact when requesting to ‘friend’ the witness – that the purpose was to provide access to an attorney.
On the other hand, the Bar of the City of New York Committee on Professional Ethics determined that a lawyer or an agent could send a friend request to an unrepresented individual to obtain their personal information published on a third party’s social media account. They concluded that it is ethical networking as long as the person making the friend request uses their real name and social media profile. SMI Aware does not condone or recommend the friending of any subject during the investigation process.
Some may view the friending of an opposing party or witness to be similar to an undercover investigation. But in both instances (friending or undercover investigating), the attorney is placing themselves in a situation where misrepresentation is far more likely to occur and often key to obtaining information that is relevant to their case. But you want to ensure that any evidence you gather is obtained legally and ethically and preserved in the correct manner.
SMI Aware employs proprietary e-discovery technology along with expert human analysis to process searches efficiently without sacrificing accuracy. We can replicate specific searches and answer questions for all involved parties in a consistent and defensible manner.
With over two-thirds of adults sharing information on social media, there’s a good chance that information relevant to your investigation is available – if you can find it.
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