The ethics of Facebook evidence gathering

These days, most lawyers are familiar with social media, both its benefits and pitfalls. After all, social media has been around for significantly more than a decade now. As a result many lawyers are comfortable interacting online and using social media platforms to help them in their practices for both business development purposes and evidence gathering.

But that wasn’t always the case. For many years lawyers were reluctant to use social media for any reason, and once they did, they sometimes encountered ethics hurdles that prevented them from using it in the ways they’d intended. One area where this often occurred was in the area of evidence gathering.

When litigation attorneys first started mining social media for evidence, many inadvertently crossed an ethical line, which was often easy to do since the lines weren’t always clear-cut. However, over time ethics committees weighed in and clarified the ways that lawyers could ethically use social media platforms to mine for evidence.

Even so, ethics issues still arise that need to be addressed. Case in point: In the Matter of John J. Robertelli (D-126-19) (084373). The New Jersey Supreme Court handed down this opinion on September 21. At issue in this attorney disciplinary case was “whether Respondent John Robertelli violated Rule of Professional Conduct (RPC) 4.2, which prohibits a lawyer from communicating with another lawyer’s client about the subject of the representation without the other lawyer’s consent.”

The court considered the actions of Robertelli’s paralegal, who sought to become Facebook “friends” with Dennis Hernandez, a man who had filed a civil action against Robertelli’s client. When the friend request was granted, Hernandez did not know that the paralegal he had just become “friends” with was employed by the firm that represented the individual he’d sued.

After the Facebook connection was made, the paralegal obtained evidence from Hernandez’s Facebook page, including a video that showed him wrestling on a date that was believed to have been captured subsequent to the accident at issue in the lawsuit. Notably, the actions at issue occurred in 2008, at a time when there were very few, if any, ethics opinions addressing the permissibility of using social media platforms for evidence gathering purposes. This fact was not lost on the court in reaching its determination.

The court concluded that if the actions taken by the paralegal had occurred today, it would have violated ethics rules since lawyers have an obligation to take reasonable efforts to ensure that the conduct of an employee whom they supervise comports with their own ethical obligations. However, the court acknowledged that the timing of the actions was significant: “What attorneys know or reasonably should know about Facebook and other social media today is not a standard that we can impute to Robertelli in 2008 when Facebook was in its infancy … we find that Robertelli did not violate RPC 4.2 or the other RPCs cited in the complaint.”

According to the court, lawyers today will be held to a different standard and there is an ethical obligation to have technology competence when mining social media for evidence: “Robertelli may have had a good faith misunderstanding about the nature of Facebook in 2008, but there should be no lack of clarity today about the professional strictures guiding attorneys in the use of Facebook and other similar social media platforms … Lawyers should now know where the ethical lines are drawn. Lawyers must educate themselves about commonly used forms of social media to avoid the scenario that arose in this case. The defense of ignorance will not be a safe haven.”

In other words, ignorance regarding your ethical obligations or technology competence is no excuse in 2021. Mine social media knowledgeably, or don’t mine it at all.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase legal practice management software.