Social Media as a Key Investigative Tool

Social media isn’t just for connecting with friends and family anymore. It’s also a powerful investigative tool – via social media intelligence and threat monitoring – that attorneys need to understand. In December 2014, a federal judge in New Jersey ruled that law enforcement officers lawfully connected with a suspect on social media by creating a fake undercover Instagram account, and could use evidence found on his private site against him during trial (U.S. v. Gatson, 2014 WL 7182275). Stating that “no search warrant was required for the consensual sharing of information,” the court apparently relied on the fact that the defendant chose to accept the unknown follower’s friend request. It also ignored the officers’ false pretenses in creating a fake account. The decision begs the question: As an attorney, can I do that?

Fake Friends and Professional Responsibility

In short, no. It’s tempting: zealously representing your client requires knowledge, competence and due diligence, often accomplished through investigations. And social media sites seemingly offer all the information we need at the touch of a button – confessions in the form of status updates, party admissions disguised as wall posts, profile pictures featuring the getaway car, the list goes on.

Attorneys, however, must conduct social media investigations the way they would any real-life investigation: ethically. Using the informal discovery tool of social media doesn’t exempt you from following the Professional Rules of Responsibility and your state’s corresponding rules of conduct.

Old Rules, New Age

  • You’ve known since your law school professional responsibility class that a rule (4.2) forbids lawyers from having contact with a represented party. This now includes online contact.
  • You also know about the rule (4.3) that requires you to communicate clearly with unrepresented parties, such as witnesses, in order to prevent any misunderstandings they might have about your role representing your client.
  1. Ethics opinions in the Facebook age have taken differing approaches to this requirement.
  2. A New York state ethics committee, for example, concluded that attorneys may friend-request a witness if they disclose their true identity as attorneys, even if they don’t identify the purpose for contacting the witness.
  3. A Philadelphia ethics opinion, on the other hand, suggested that attorneys may only friend-request a witness if they disclose their true identity and also reveal the evidence-gathering purpose of their request. The opinion also concluded that an attorney may not direct a third person, who is not known to the witness, to connect with that witness. Remember the rule about attorneys being responsible for the ethical violations of their paralegals, assistants and investigative agents (rule 5.3).

Four Tips on Ethically Viewing Your Client’s Online Connections

Here are some key guidelines to keep in mind:

  1. Accessing the social media site of an opposing party or hostile witness who is already friends with your client is probably ethically appropriate, so long as your client did not connect with the other person only after litigation has begun or for the sole purpose of gathering evidence.
  2. If your client gives you her social media passwords to view the page of an opposing party with whom she has previously connected, passively browsing or reviewing the site likely falls within ethical boundaries. Actively commenting, poking or “liking” anything does not.
  3. The same holds true for investigating potential jurors on social media. While pretrial juror investigation is nothing new, social media searches have presented a new method. New York and Pennsylvania ethics opinions have concluded that an attorney may conduct a pretrial social media search of potential jurors so long as he does not contact, connect or communicate with, or tweet at them. 
  4. And creating a fake profile to connect with a party (or juror) to gather impeaching (or disqualifying) evidence? Not only is it deceitful, it’s also unethical, violating the rule against fraud and dishonesty (8.4). Although government agencies have long enjoyed latitude in their use of undercover investigations, covert audio recordings and now private social media searches, private attorneys have not. Posing as someone else, even a fake person, is dishonest, online or otherwise.

Bottom Line? Follow the Rules of Professional Responsibility

It’s easier to deceive, and to justify deceptive conduct online than it is to deceive in person or on the phone. But ignorance of social media is no longer an excuse. If you’re unsure what to use, view only public profiles or the public portions of private profiles. And let the rules of professional responsibility be your guide.

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