Ethical Informal Discovery of Social Media

By Carole J. Buckner, member, LACBA Professional Responsibility and Ethics Committee, and dean of Abraham Lincoln University School of Law. She can be reached at cbuckner@cox.net. The views expressed are her own.

Lawyers investigating an adverse party or witness through social networking media such as Facebook or MySpace face several ethical constraints. Some social media is private, while some is considered public. The lines are not always clear. Formal discovery directed at social media service providers may be precluded by the Stored Communications Act (SCA)¹ and the Electronic Communications Privacy Act (ECPA).² One California court held that where a plaintiff published an Ode on MySpace, she “opened the article to the public at large. Her potential audience was vast.”³ But formal discovery focused on obtaining private messaging via Facebook and MySpace may be quashed under the SCA and ECPA.⁴ Informal investigation aimed at social networking sites is an obvious alternative. However, caution is advised.

Avoiding deception. Out-of-state ethics opinions, which are advisory only, indicate that as long as lawyers do not employ dishonesty, obtaining information from an opposing party’s publicly available social networking “landing pages” is permissible where the pages are available to social network members.⁵ While some states permit lawyer deception in specific contexts,⁶ California law generally provides that an attorney who commits or consents to deceit or collusion with intent to deceive a party is guilty of a misdemeanor.⁷ In addition, “any person who knowingly and without consent credibly impersonates another actual person...on an Internet Web site or by other electronic means for purposes of harming, intimidating, threatening, or defrauding another person” is also guilty of a misdemeanor and is liable for civil and injunctive relief.⁸

California law further prohibits lawyers from engaging in acts involving moral turpitude, corruption, or dishonesty, whether as an attorney or otherwise⁹ and requires that lawyers employ such “means only as are consistent with truth.”¹⁰ California ethics rules prohibit lawyers from advising the violation of law, unless the lawyer has a good faith belief that the law is invalid.¹¹ Rules regarding acting in concert with third parties provide that lawyers shall not knowingly assist in, solicit, or induce violation of the Rules of Professional Conduct.¹² Finally, lawyers directing a third party’s investigatory efforts have an ethical duty to supervise nonlawyers working under their direction.¹³

Out-of-state ethics opinions regarding investigation of social media indicate that the use of deception by a lawyer or the lawyer’s agent or employee, such as employing a false identity to initiate a “friend” request to an adverse party or witness, generally is prohibited.¹⁴ Even the use of an agent acting on behalf of a lawyer to make a technically truthful friend request to a witness (in the agent’s truthful name) was characterized as deceptive where the agent’s affiliation with the lawyer is concealed from the recipient of the request.¹⁵ One ethics opinion further concludes that the witness’s habit of readily accepting friend requests does not excuse the lawyer’s dishonesty, because “[d]eception is deception, regardless of the [witness’s] susceptibility to being deceived.”¹⁶ Deception stemming from “over-zealous efforts to effectuate a legal strategy” reflects a disregard of ethical duties that can constitute moral turpitude.¹⁷ Accordingly, truthful “friending” of unrepresented parties or witnesses, or issuance of formal discovery best permits the lawyer to obtain information from social networking sites.¹⁸

Investigation of adverse parties. The lawyer pursuing investigation of adverse parties through social networking sites triggers another ethics constraint: the “no-contact” rule, which generally prohibits a lawyer from contacting a represented party—without the party’s counsel’s consent—where the contact concerns the subject matter of the representation, unless such communications are otherwise authorized by law.¹⁹ Where a party is the object of the investigation and represented by counsel, even a nondeceptive “friend” request initiated by the adverse lawyer will violate the no-contact rule.²⁰ Where the target of informal discovery is a corporate employee of an adverse corporate party represented by counsel, further analysis is required regarding the employee’s status as an officer, agent or managing agent, or partner, in which case even truthful “friending” efforts that steer clear of deception will violate the no-contact rule.²¹ Truthful friend requests to former employees are less problematic, assuming confidential and privileged information is not sought.²²

Lawyers must proceed with caution when conducting informal discovery of social networking sites, restricting such efforts to truthful requests to nonparties to avoid ethical perils.

¹ 18 U.S.C. §2701, et seq.

² 18 U.S.C. §2510, et seq.

³ Moreno v. Hanford Sentinel, Inc., 172 Cal. App. 4th 1125, 1130 (2009).

⁴ Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965, 991 (2010).

⁵ New York State Bar Ass’n, Formal Op. 843 (Sept. 10, 2010).

⁶ See, e.g., Oregon State Legal Ethics Comm., Formal Op. 2005-173 (2003) (lawyer supervising covert activity); New York County Lawyers’ Ass’n Ethics Op. 289 (May 2007) (civil rights and intellectual property).

⁷ Cal. Bus. & Prof. Code §6128(A).

⁸ Cal. Penal Code §528.5.

⁹ Cal. Bus. & Prof. Code §6106.

¹⁰ Cal. Bus. & Prof. Code §6068(d).

¹¹ Cal. Rules of Prof'l. Conduct R. 3-210.

¹² Cal. Rules of Prof'l. Conduct R. 1-120.

¹³ Cal. Rules of Prof'l. Conduct R. 3-110, Discussion.

¹⁴ Ass’n of the Bar of City of New York, Comm. on Prof'l. and Judicial Ethics, Formal Op. 2010-2 (September 2010).

¹⁵ Philadelphia Bar Ass’n, Prof'l. Guidance Comm., Op. 2009-02 (March 2009). See also Wayne v. Bureau of Private Investigators & Adjusters, 201 Cal. App. 2d 427 (1962) (revoking license of investigator for deceit regarding his identity).

¹⁶ Op. 2009-02 (March 2009).

¹⁷ See In re Maloney, 4 Cal. State Bar Ct. Rptr. 774 (2005).

¹⁸ See Formal Op. 2010-2, supra note 14.

¹⁹ Cal. Rules of Prof'l. Conduct R. 2-100; United States v. Carona, 630 F. 3d 917 (2011).

²⁰ New York State Bar Ass’n, Formal Op. 843 (Sept. 10, 2010).

²¹ Cal. Rules of Prof'l. Conduct R. 2-100(B).

²² Cal. Rules of Prof'l. Conduct R. 2-100, Discussion; see also Formal Op. 2010-2, supra note 14.