The Internet sure isn't Las Vegas. What lawyers say and do online isn't likely to be afforded any measure of discretion or confidentiality: Once posted, tweets, instant messages, and texts have a life of their own. Cell phone videos go viral. And emails can end up marked with evidence tags.
The moral of the story usually is that everyone who wants to avoid trouble is urged to think long and hard before hitting the send button. But for lawyers who must utilize the Internet in their practice, there are other important lessons to be learned. One of them concerns the duty of competence; another, the duty of candor.
Lawyers venturing into cyberspace to prepare their cases need to do more than review black letter rules stated in dusty books. They also need to know how time-honored rules will be applied to online conduct. Ethics opinions issued by various bar associations provide an excellent resource for that advice.
Performing with Competence
Before an attorney turns to the Internet (or to digital media) to investigate or prepare a case for trial, it is imperative to recognize that new and emerging technologies inevitably trigger a lawyer's duty of competence.
The basic principle is simple. A lawyer "shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence." (See Cal. Rule Prof. Conduct (RPC) 3-110.) The term competence
applies to the diligence, learning, and skill reasonably necessary to perform legal services, as well as the mental, emotional, and physical ability needed to do that work. (See RPC 3-110(B).)
Nowadays it is often essential to engage emerging (and fast-changing) technology to perform legal services - especially in the area of e-discovery. But what about counsel who lack tech skills? It may well be that a neophyte lawyer who is tech-savvy can teach an experienced legal hand a thing or two. Consider a "reverse mentoring" arrangement by associating with a lawyer or expert consultant who can add new and needed skills to the matter at hand.
Governing ethical rules clearly invite such a move, for they state that if a lawyer does not possess the learning and skill necessary when the representation is undertaken, he or she may still render competent representation by associating with or consulting another lawyer - or an expert - who does. Alternatively, a lawyer can acquire the necessary learning and skill prior to performing the legal services. (See Rule 3-110(C).)
So far so good. Assuming the competence obligation is satisfied, the lawyer must ensure he or she acts ethically when searching for evidence in cyberspace. This involves the duty of candor.
Honesty Is the Best Policy
From the chat room to the courtroom, being candid and honest is the very heart of legal ethics. Governing rules make clear that a trial lawyer shall employ "means only as are consistent with truth" and shall not seek to mislead the judge or jury "by an artifice or false statement of fact or law." (RPC 5-200(A), (B.) The code echoes this standard. (See Cal. Bus. & Prof. Code § 6068(d).)
California lawyers have a duty to conduct themselves honestly regardless of whether they are in the courtroom. A related statute provides in pertinent part that the commission of any act involving moral turpitude, dishonesty, or corruption - whether committed in the course of work as an attorney or otherwise, and whether the act is a felony or misdemeanor - constitutes cause for disbarment or suspension. (Cal. Bus. & Prof. Code § 6106.)
The rules cited above do not discuss Facebook, Twitter, Vine, or Instagram. Indeed, because technology has outpaced venerable ethics rules, lawyers must consult the various ethics opinions that are starting to explore the issue of lawyer misconduct in cyberspace.
A caveat: Though ethics opinions offer guidance, they are not strictly binding on a court of law. Moreover, when California ethics opinions do not cover a specific subject, the opinions (and rules) promulgated by other jurisdictions and bar associations may be considered. (See RPC 1-100.)
This extends to the ABA Model Rules as well (California is the only state that has not yet adopted a version). Case law establishes that although an ABA formal opinion "does not establish an obligatory standard of conduct imposed on California lawyers," the ABA Model Rules may be considered as a "collateral source" when there is no direct ethics authority in California. (See State Comp. Ins. Fund v. WPS, Inc.
, 70 Cal. App. 4th 644, 656 (1999).)
Notwithstanding the clear rules that frame the duty of candor, the Internet is a place where many lawyers have stooped to dishonest tactics. It seems that cyber sleuthing for evidence is too tempting for many practitioners to pass up. After all, a treasure trove of information is available online - just a click or two away - and much of it is valuable in litigation. The key is knowing how to access it ethically.
Five years ago, a New York State Bar committee determined that it is ethical for lawyers to search the public portions of social networking sites looking for damaging information to use against their opponents in lawsuits. (See N.Y. State Bar Ass'n Comm. on Prof. Ethics, Op. 843 (2010).)
However, snooping around public information isn't enough for some lawyers. As the record of professional misconduct proceedings demonstrates, many counsel have gone further, looking beyond the public portion of websites to gain access to private information. The most common example: seeking out Facebook posts about people who are parties or witnesses in pending litigation.
The ethics issue arises when lawyers step over the line by using trickery to peek behind the curtain that divides public information from private information.
Facebook users are apt to learn the hard way that not all friend requests come from friends. "False friending" is rampant, as lawyers strategize new ways of getting around Facebook's ever-changing privacy settings. The technique works because many users routinely accept friend requests even if they don't recognize the requester.
But when lawyers seek access to private information by sending a phony friend request, it presents a major ethics issue. Often attorneys will pose as someone else out of fear that the targeted person will recognize their real name. Alternatively, they may arrange to have a third party send the request.
Though not all jurisdictions agree, the growing consensus is that in most cases this deceptive type of activity violates a lawyer's duty of candor.
Accessing Private Information
Six years ago, an opinion from the Philadelphia Bar Association analyzed what ethics rules would apply to a lawyer who sought to obtain information from the private social media profile of an opposing witness to use in litigation. (See Phila. Bar Ass'n Prof. Guidance Comm. Op. 2009-02 (2009).)
Specifically, the panel considered whether a lawyer could have a nonlawyer assistant "friend" a witness on Facebook and MySpace without explaining the reason for the contact or disclosing the identity of the assistant's employer. The purpose was to gain access to nonpublic information on the witness's website pages.
The Philadelphia opinion concluded that this conduct would violate several different rules of professional conduct because it involved dishonesty. In particular, it violated ABA Rule 8.4(c) because it constituted deceptive conduct by the lawyer's assistant. "It omits a highly material fact - namely that the third party who asks to be allowed access to the witness's pages is doing so only because he or she is intent on obtaining information and sharing it with a lawyer for use in a lawsuit to impeach the testimony of the witness." (See Op. 2009-02 at 3.)
Because the lawyer in this instance is acting in a supervisory capacity, ABA Rule 5.3 dictates that an attorney can be held responsible for any assistant's deceptive actions. (The rule provides in part that an attorney "shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer.")
In addition, the conduct would violate ABA Rule 8.4(a), which states that it is professional misconduct for a lawyer to personally violate the rules or "knowingly assist or induce another to do so, or do so through the acts of another."
Finally, the Philadelphia opinion concluded that the conduct would also violate ABA Rule 4.1 because it "constitutes the making of a false statement of material fact to the witness."
The opinion reminded lawyers that even noble motives do not justify purposeful deception, citing In Re Gatti
(8 P.3d 966 (Ore. 2000) (rejecting proposed exceptions to the rule prohibiting deception, even for government or civil rights investigations); and People v. Paulter
(47 P.3d 1175 (Colo. 2002) (prosecutor impersonated a public defender in an attempt to procure the surrender of a murder suspect)).
Difference of Opinion
The Philadelphia opinion recognized that the New York County Lawyers' Association had reached a different conclusion: That entity approved the use of deception that did not violate the rights of third parties in a limited situation regarding investigating civil rights or intellectual property right violations that were imminent or actually taking place, and in the absence of other methods of obtaining the evidence. (See N.Y. Cnty. Lawyers Ass'n Formal Op. No. 737 (2007).)
However, the Philadelphia opinion did state that it would have been permissible for the lawyer to ask the witness directly for access to her social media information.
Using Real Names
In the Big Apple, an ethics panel addressed the question of whether a lawyer could send a Facebook friend request using his or her own name to an unrepresented party for the purpose of gaining information to use in a case. (See New York City Bar Ass'n Formal Op. 2010-2 (2010).) The panel concluded that an attorney, or his or her agent, may send a friend request to an unrepresented party using the attorney's real name to obtain information. That opinion further stated that such a request does not need to specify the reason the attorney is making the request.
"While there are ethical boundaries to such friending,'" the opinion notes, "in our view they are not crossed when an attorney or investigator uses only truthful information to obtain access to a website, subject to compliance with all other ethical requirements." (See N.Y. Formal Op. 2010-2 at p. 2.)
The very next year the issue came before the San Diego County Bar Association, which reached the opposite conclusion, opining that an attorney violates the duty not to deceive when a friend request is sent - either to a represented or
unrepresented party - on Facebook without disclosing the sender's motivation. (See San Diego Cnty. Bar Ass'n Legal Ethics Op. 2011-2 (2011).)
The San Diego opinion also noted that friend requests to represented parties violate the rules that require such contacts to be routed through counsel. (See RDC 2-100; Op. 2011-2 at pp. 2-8.)
In addition, the San Diego opinion noted that an attorney violates his ethical duty not to deceive when he sends a friend request to an unrepresented party on Facebook without disclosing his motivation. Although California has not adopted ABA Model Rule 3.3's version of the duty of candor, it does impose a generalized duty not to deceive in Business & Professions Code section 6068(d), which forbids bar members "[t]o employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth, and never seek to mislead the judge ... by an artifice or false statement of fact or law." Typically, this provision is applied to allegations that an attorney misled a judge and the ethics panel found no authority applying the provision to attorney deception of anyone other than a judicial officer - but the opinion concluded that the statutory language is not necessarily so limited.
The San Diego opinion further points out that because the statute is phrased in the conjunctive (using the word and
), it may indicate a general duty not to deceive anyone, coupled with a more specific duty not to mislead a judge. The opinion cited cases demonstrating California courts recognize that an attorney's common law duty not to deceive that extends beyond the courtroom into a wide range of conduct pertinent to the handling of a given matter. (See Op. 2011-2 at p. 9.)
Unethically uncovering crucial information on the Internet is one thing. Telling a client to delete it is quite another. In fact, lawyers must think twice - make that ten times - before telling a client to delete his or her social networking page in order to bolster a pending case. Among other things, lawyers contemplating such action should consider RPC 5-220, which states that a lawyer shall not suppress any evidence that the lawyer (or the lawyer's client) has a legal obligation to reveal or to produce. They should also consider ABA Rule 3.4, which states in pertinent part that a lawyer shall not "unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value ... or counsel or assist another person to do any such act."
Money on the Line
In fact, the improper deletion of a Facebook page or other Internet profile can do much more than trigger a professional misconduct investigation. It could cost the offender a great deal of money. That is exactly what happened in Virginia when a trial court lowered the boom on a lawyer who had his plaintiff client "clean up" a damaging Facebook account prior to trial. The sanction amounted to $180,000 for the client and more than $540,000 for the lawyer. Although the trial court's order was reversed on appeal (see Lester v. Allied Concrete
, 285 Va. 295 (2013)), its impact still echoes in many a courtroom.
But that is not all attorneys have to worry about, for social media spoliation can have other damaging impacts: an adverse jury instruction, for example. (See Gatto v. United Air Lines, Inc.
, 2013 WL 1285285 (D.N.J.).) And if the impetus for the spoliation was trial counsel's misguided advice to the client, it might well trigger something else should the case turn out badly: a malpractice claim.
What to Do?
In this day and age, every lawyer needs to be technically savvy, particularly when e-discovery obligations are involved. Moreover, anyone contemplating cyber sleuthing needs to bone up on the ethical parameters that govern online conduct. A working knowledge of the applicable rules and ethics opinions will facilitate an online investigation that is both effective and
Wendy L. Patrick is a deputy district attorney in San Diego County and past chair of and advisor to the California State Bar Committee on Professional Responsibility and Conduct.