Social media posts can be helpful in litigation

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The use of social media has become so commonplace that some commentators have suggested that it might be malpractice in some cases if an attorney fails to scour pertinent online information.

But what is the proper process for conducting such online research without violating ethics rules? And how should attorneys handle information learned by visiting social media accounts?

During a CLE held Wednesday at the Monroe County Bar Association’s Rubin Center for Education, a trio of experts, moderated by D4 discovery engineer Rafe Stanley, discussed several questions related to finding and using social media as evidence.

The program included attorneys Nicole Black and Scott Malouf, and Michael L. Fox, assistant professor at Mount Saint Mary College, in Orange County, who participated remotely over an internet connection.

The general advice from attorneys to clients is to be cautious using social media if you are involved in litigation.

“After a litigation starts, don’t advise your client to clean up or remove information from social media, but you can tell them to stop being active,” Fox said.

Malouf said: “If you learn nothing else today, don’t assume that an email or a letter to the client saying, ‘Stop posting, and change your settings,’ is going to cause them to do that.”

Stanley began with the question: Can lawyers research witnesses using information that is publicly available on social media sites?

“That’s absolutely very settled in New York,” Black answered.

“That means if you go to a social media site and you’re not connected with the person, as in friends, or following them, whatever you see when you go to that person’s publicly available profile, whatever you see without any connection, is publicly available,” she said.

An audience member asked if the owner of a social media account will know if you visited their page or profile. On Facebook and Twitter, the account owner won’t be notified that you viewed their profile.

But on some other social media platforms, such as LinkedIn, the owner of the account might get a notification that you visited their page, which could be a problem when researching jurors because attorneys are not permitted to communicate with jurors outside of court.

Attorneys also may visit the publicly available information — including social media accounts — of parties to an action.

“You can’t have contact with parties absent the attorney, but when you’re simply researching publicly available information you can look at that on the internet,” Black said.

But the amount of information you can see by visiting social media sites varies, depending on the way the owner’s privacy settings are configured.

“Some people will have everything locked down so you can’t see anything, and all you can see is their name,” Black said.

But attorneys should be aware that social media platforms, especially Facebook, may change their policies and change what is made publicly available.

“Is it ever OK for us to go online to try to friend someone to pierce that privacy wall?” Stanley asked.

The answer is not as clear for upstate New York attorneys as it is in New York City, Black said.

That’s because the New York State Bar Association has not issued a specific opinion on that subject, while the New York City Bar Association has.

The state bar association has opined that lawyers must avoid the perception of deceit.

The New York City bar took a very permissive view and determined that attorneys and others working on their behalf can ethically friend an unrepresented party without disclosing your true purpose.

Malouf advised a cautious approach and suggested documenting exactly how you obtained any information found on social media platforms.

Fox said attorneys can review social media information on jurors.

“You can view their social media pages passively,” Fox said.

Some legal writers have suggested that failing to check a prospective juror’s online information during voir dire would be malpractice, but Fox said that would depend on the resources available to the firm handling the case.

To avoid have a notification sent to a prospective juror telling them you visited their social media account, especially on LinkedIn, the experts suggested changing your settings to anonymous, or simply logging out of your account before visiting the juror’s page.

Malouf suggested reviewing the American Bar Association Opinion 466 — Lawyer Reviewing Jurors’ Internet Presence.

“That gives you a guideline to walk into your judge and say, ‘Judge, this is what I’m going to do,” Malouf said.

“You’re much better off to prophylactically talk to your judge, figure this out, and say to your judge, ‘We’re taking every precaution I can. If you have particular objections, let me know,’ ” Malouf said.

If an attorney does discover something that appears to be a violation of the juror’s oath, they must notify the court immediately without conducting any further research or investigation on their own.

And attorneys cannot use that information to their tactical advantage, Black said.