New Tools, Same Rules

Nearly half of all attorneys now use social media as an investigative instrument. While legal tactics may be expanding, ethics obligations remain unchanged.

By JAMES CARLSON and AMY DEVAN, ESQ.

Summer 2013

As a Cleveland-area prosecutor prepared for a murder trial earlier this summer, he turned to the power of social media. The prosecutor, Aaron Brockler, posed as a woman on Facebook and contacted an alibi witness of the accused killer, engaging her in online chats in an attempt to encourage her to change her story.

“Unless I could break this guy’s alibi, a murderer might be walking on the street,” he told a local newspaper after his actions were discovered. “There was such a small window of opportunity, I had to act fast.”

He also had to act ethically.

Ethics opinions from across the country over the past few years have concluded that lawyers shouldn’t use deception while mining social media for investigative information. Brockler’s own boss called Brockler’s tactics “unethical behavior.” Brockler was fired for his actions.

The incident is instructive to the increasing number of lawyers who harness social media. In 2010, 6 percent of attorneys reported using sites such as Facebook for investigation, according to the American Bar Association. By 2012, 44 percent were doing so. Most states, including Colorado, don’t have rules specifically addressing its use. The newness of such tools, however, does not dismiss lawyers from their ethical responsibilities.

So what pitfalls do attorneys face when using social media for investigation? And how can they do it ethically? Here are some quick DOs and DON’Ts, and some tips for using social media as an investigative tool.

DO

·         Review information that a Facebook user makes available to the public.

·         Make a “friend” request seeking non-public information of an unrepresented party if you truthfully identify yourself and your purpose.

DON’T

·         Use pretexting. Donning an alias and “friending” someone on Facebook to gain access to restricted information is prohibited.

·         Use a third party. If that third-party uses false pretenses to gain access to a restricted social media account, you’re responsible for that behavior.

·         Attempt to “friend” a represented party, even if you are truthful about your identity and purpose.

(For more information on the legal ethics of social media outside of investigation, refer to the resources at the end of this article.[1][2])

Drop the mask

An easy guide to using social media in your practice is if you wouldn’t do it in person, don’t do it online.

Many Facebook users allow full access to their page’s most personal information only to those they have accepted as “friends.” Just as you would not pose as a utility worker to gain access to someone’s house, you shouldn’t assume an alias to access someone’s personal Facebook page.

“A lawyer may not attempt to gain access to a social networking website under false pretenses,” a 2010 opinion of the New York City Bar Association concluded. (Ethics committees for the San Diego County Bar and the Oregon State Bar have reached similar conclusions.)

These opinions are largely based on two rules found in the Colorado Rules of Professional Conduct. CRPC 4.1 says, “In the course of representing a client a lawyer shall not knowingly (a) make a false statement of material fact or law to a third person.” CRPC 8.4(c) similarly prohibits lawyers from engaging in “conduct involving dishonesty, fraud, deceit or misrepresentation.”

But what if you feel the deception is justified?

Noble Equals Ethical?

Brockler never hid his actions from the court. Instead, he argued they were necessary to impeach a witness. But in most instances, that doesn’t matter when it comes to the Rules of Professional Conduct. Justifiable deception is not a defense in most disciplinary proceedings.

Some states such as Oregon have carved out exceptions to the prohibition on deception, but those exceptions are normally to prove criminal behavior, a civil rights violation and/or because there are no other means by which to obtain the information ethically.

In Colorado, the argument is moot. In the case of People v. Pautler, the Colorado Supreme Court ruled there are no justifiable exceptions to the rules. In its decision, the court restated a previous ruling: “Even a noble motive does not warrant departure from the Rules of Professional Conduct.”

Hired hands

Getting a non-lawyer to engage in the trickery isn’t an excusable method, either.

CRPC 5.3 says, “With respect to a nonlawyer employed or retained by or associated with a lawyer: (c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer …”

Based on that rule, the Philadelphia Bar Association said in a 2009 opinion that “the fact that the actual interaction with the witness would be undertaken by a third party who, the committee assumes, is not a lawyers does not insulate the inquirer from the ethical responsibility for the conduct.”

So wait, how can you ethically use social media sites for investigation?

The right way

By being honest and forthright, for starters.

“Rather than engage in ‘trickery,’ lawyers can -- and should -- seek information maintained on social networking sites, such as Facebook, by availing themselves of informal discovery, such as the truthful ‘friending’ of unrepresented parties,” the New York City Bar Association said in its 2010 opinion. Essentially, if you include in your “friend” request your identity and purpose, that’s a fair request.

Be mindful, however, that CRPC 4.2 likely prohibits an attorney from “friending” a person who is represented. That request would have to go through the person’s counsel.

And you can always review information that a Facebook user has posted publicly.

Social media may provide a new ethical minefield for attorneys to navigate, but the core issues it raises are as old as any. Therefore, approach such dilemmas in the same manner you would face more traditional ethical questions: Consult your colleagues, read the ethics opinions and review the pertinent rules.

James Carlson is the Information Resources Coordinator with the Office of Attorney Regulation Counsel.

Amy DeVan is Assistant Regulation Counsel in the office’s intake division.