With the increasing use of social media evidence, what may a lawyer do to gather the evidence (or to prevent it from being gathered)? More and more, social media is finding its way into court cases. Family law matters may be leading the way.
A 2013 Third Department decision affirmed the imposition of an order of protection against a mother prohibiting her from posting any communications to or about the children on any social network site (prior blog post). Several decisions have made use of material posted on Facebook (see, e.g., Terzani ; Elissa N. ; B.M. ). A 2015 case authorized Facebook as a method of court-approved substituted service of a divorce summons. A 2014 Family Court case authorized such service of a child support petition (prior blog post).
A 2016 decision of New Jersey’s highest court upheld the jurisdiction of the Office of Attorney Ethics (OAE) to consider a complaint against an attorney after the local District Ethics Committee declined to consider the matter. The OAE is the investigative and prosecutorial arm of the state’s highest court for discharging that court’s constitutional responsibility to supervise and discipline New Jersey attorneys.
In that case, a police car driven by a police sergeant allegedly struck a pedestrian, Dennis Hernandez, who claimed that he suffered permanent injuries. He commenced suit against the Borough, the police department, and the sergeant. In order to obtain information about Hernandez, the personal injury action attorneys for the defendants directed a paralegal employed by the firm to search the internet. Among other sources, she accessed Hernandez’s Facebook page. Initially, the page was open to the public. At a later point, the privacy settings on the account were changed to limit access to Facebook users who were Hernandez’s friends. Allegedly, the attorneys directed the paralegal to access and continue to monitor the non-public pages of Hernandez’s Facebook account. The paralegal submitted a friend request to Hernandez, without revealing that she worked for the law firm representing defendants or that she was investigating him in connection with the lawsuit. Hernandez accepted the friend request, and the paralegal was able to obtain information from the non-public pages of his Facebook account.
When an ethics complaint was files against the attorney, the District Ethics Committee declined to prosecute, concluding that the allegations, even if proven, would not constitute unethical conduct. Hernandez’s attorney then contacted the Director of the OAE who reviewed the matter and docketed it for a full investigation and potential hearing. The attorneys filed a court action to prevent reconsideration. Ultimately, the state’s highest court concluded that the OAE could hear the matter.
This matter presents a novel ethical issue: whether an attorney can direct someone to friend an adverse, represented party on Facebook and gather information about the person that is not otherwise available to the public. No reported case law in our State addresses the question. Consistent with the goals of the disciplinary process, the court rules do not close off further inquiry if a DEC Secretary declines to docket an important, novel issue as to which there is little guidance, or mistakenly declines to docket an allegation of egregious, unethical conduct.
The issue of attorneys accessing Facebook pages has been considered in New York. The Guideline 4B of the 2015 Social Media Ethics Guidelines of the Commercial and Federal Litigation Section of the New York State Bar Association upheld fully-disclosed access. The Guideline states:
A lawyer may request permission to view the restricted portion of an unrepresented person’s social media website or profile.50 However, the lawyer must use her full name and an accurate profile, and she may not create a different or false profile in order to mask her identity. If the person asks for additional information from the lawyer in response to the request that seeks permission to view her social media profile, the lawyer must accurately provide the information requested by the person or withdraw her request.
In 2010, the New York State Bar Association’s Committee on Professional Ethics held that it was permissible for a lawyer to view and access the Facebook or MySpace pages of a party other than his or her client in pending litigation in order to secure information about that party for use in the lawsuit, including impeachment material, if the lawyer does not “friend” the party and instead relies on public pages posted by the party that are accessible to all members in the network. As long as the lawyer does not “friend” the other party or direct a third person to do so, accessing the social network pages of the party will not violate Rule 8.4 (prohibiting deceptive or misleading conduct), Rule 4.1 (prohibiting false statements of fact or law), or Rule 5.3(b)(1) (imposing responsibility on lawyers for unethical conduct by nonlawyers acting at their direction).
The Committee noted that if a lawyer attempts to “friend” a represented party in a pending litigation, then the lawyer’s conduct is governed by Rule 4.2 (the “no-contact” rule), which prohibits a lawyer from communicating with the represented party about the subject of the representation absent prior consent from the represented party’s lawyer. If the lawyer attempts to “friend” an unrepresented party, then the lawyer’s conduct is governed by Rule 4.3, which prohibits a lawyer from stating or implying that he or she is disinterested, requires the lawyer to correct any misunderstanding as to the lawyer’s role, and prohibits the lawyer from giving legal advice other than the advice to secure counsel if the other party’s interests are likely to conflict with those of the lawyer’s client. The Committee’s opinion expressly did not address those scenarios.
Guideline 4C, Viewing a Represented Party’s Restricted Social Media Website, provides:
A lawyer shall not contact a represented person to seek to review the restricted portion of the person’s social media profile unless an express authorization has been furnished by the person’s counsel.
Guideline 4D extends the rule to the lawyer’s agents:
As it relates to viewing a person’s social media account, a lawyer shall not order or direct an agent to engage in specific conduct, or with knowledge of the specific conduct by such person, ratify it, where such conduct if engaged in by the lawyer would violate any ethics rules.
Guideline 4A considered in a different context whether an attorney may access the social media of the adverse party in litigation. As the social medium might automatically notify the owner of the accessed account of the attorney’s viewing, such could be viewed as an improper communication with someone who is represented by counsel. The guideline states:
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. However, the lawyer must be aware that certain social media networks may send an automatic message to the person whose account is being viewed which identifies the person viewing the account as well as other information about such person.
The Commercial and Federal Litigation Committee’s Guidelines go on to discuss to what extent a lawyer may advise a client as to what content may be maintained or made private on a social media account and what content may be taken down or removed, while noting that a party’s duty to preserve could be involved.
As noted in the 2016 article by Robert D. Boyd and K. Jeanette Holmes, Social Media and Technological Concerns In Divorce Law:
It is tricky for both clients and attorneys to balance the risks of spoliation against the risks of social media evidence undermining a legal case. While many people obviously want to present the best version of themselves online, clients involved in litigation should not permanently delete their accounts or social media activity. Destroying social media evidence, even before litigation begins, can be considered spoliation of evidence, and may subject a party, or his or her counsel, to sanctions.
The State Bar Committee also notes that the lawyer may also advise a client with regard to the posting of new content, as long as the proposed content is not known to be false by the lawyer. A lawyer is prohibited from using false statements if the lawyer learns from a client’s social media posting that a client’s lawsuit involves the assertion of false factual statements.
Parties to divorce another litigation must recognize that it is open season on their social media. On the other hand, lawyers must recognize that the ethical rules are very much in play in the gathering and use of such evidence.