By now it has become standard practice for many law enforcement authorities to mine social networking sites like Facebook and My Space for pictures of folks engaged in unlawful activity (e.g. college students engaged in under-age drinking
or minors unlawfully possessing firearms
) in order to bring charges.
Many resourceful litigators know that these social networking sites, and others like LinkedIn, Twitter, etc. can be "evidentiary gold mines
" in civil cases as well. Indeed, if a witness in a case has a profile on a social networking site, an attorney may be able to dig up some pretty juicy (and free) information that could be used to impeach the witness
or gain settlement leverage-- all without leaving the comfort of her computer terminal.
But before going out there and "friending" witnesses willy-nilly, attorneys should carefully review their state's rules of professional conduct with an eye to whether any of the rules could be implicated by this type of investigation. Here are a few Model Rules of Professional Conduct
that could come into play. Has your state adopted a version of these rules?
- Model Rule 4.2 restricts a lawyer's ability to communicate with a represented person about a given matter without the knowledge and consent of the person's counsel. "Friending" a party or witness represented by counsel could clearly run afoul of this provision.
- Model Rule 4.3 addresses a lawyer's communication with unrepresented persons. Again, reaching out an unrepresented witness on a social-networking site could land an attorney in hot water if she is unclear about her identity or her role in the relevant matter.
For more information: If you are are going to be in the Bay Area later this month, you may want to check out U.C. Berkley School of Law's Social Networks: Friends or Foes?
Conference which will explore many of these issues.