Ethical Informal Discovery of Social Media
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
1 18 U.S.C. §2701, et seq.