United States: Ethical Implications of Social Media Mining

Originally published on CyberInquirer.

It has become common practice for lawyers to mine social media pages of parties and witnesses for discovery purposes. The posts and photos may show a party to be lying about the extent of his or her claimed injury or disability, or they couldundermine or support other claims. Facebook and other social media sites also have become fertile ground for cutting edge ethical questions posed to state Bar ethics committees.

In a recent ethics opinion issued by the Sand Diego County Bar Association, a lawyer asked if it was proper to "friend" request high-ranking employees of a company the lawyer was suing on behalf of a former employee pursuing a wrongful discharge case. The lawyer believed that these high-ranking employees were dissatisfied with the company and likely had been posting negative information on their social media pages that were accessible only to those persons who had been accepted as "friends".

The ethics committee concluded in Opinion 2011-2 (May 24, 2011) that it was unethical for the lawyer to friend the company's high-level employees, particularly insofar as the entity was represented in the lawsuit by counsel. Specifically, the ethics committee opined that high-ranking employees of a represented corporate party cannot be contacted directly without the consent of the company's attorney or their own personal counsel. In other words, such employees, typically officers, directors or managing agents who supervise or directly consult with the company's counsel, are off limits in the sense that opposing counsel may not contact or communicate with them about the subject matter of the lawsuit.

The ethics opinion relied upon California Rule of Professional Conduct 2-100. The ABA Model Rule counterpart is Rule 4.2, which provides that: "[i]n representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or court order."

The San Diego ethics opinion falls in line with a series of recent ethics opinions addressing social media issues. The leading opinion, issued by the Philadelphia Bar Association Professional Guidance Committee (20009-02), concluded that it would be deceptive conduct for an attorney or her paralegal to "friend" a personal injury claimant to gain access to a restricted social media site, reasoning that the lawyer was not in fact a "friend," but rather was acting contrary to the other party's interests.

Conversely, in 2010, the City of New York Committee on Professional and Judicial Ethics issued a narrower opinion, concluding that friending an unrepresented party was permissible, so long as the friend request accurately identified the sender. More recently, there have been several court opinions ruling on discovery motions in cases where lawyers sought court permission to access the opposing party's social website information. Those court opinions also have been less than consistent, but as a general rule, if there is a good faith reason to believe that the social media pages will contain relevant information to the claims in the lawsuit, it is likely that courts will grant at least limited access.

In sum, the law regarding the use of social media sites to mine information relevant to pending litigation is still evolving and jurisdiction specific. Attorneys, claims professionals and their agents should be mindful not only of court decisions, but of local ethics committees' decisions in order to avoid running afoul of prevailing legal and ethical standards. Attorneys may not just place their clients' cases in jeopardy, they also could adversely impact their own licensure status. As such, the mining of social media for use a discovery tool, while potentially helpful to the prosecution or defense of a case, should be done with care.

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