Previously, I blogged about attorneys using social media in the everyday practice of law. For example, I did a post on George Zimmerman’s attorney Mark O’Mara who has turned to social media to get his client’s story out to the press and public. The article below discusses the latest use of social media by practicing attorneys. Specifically, the article talks about how one Colorado attorney (John Pineau) will in certain instances post his depositions on YouTube. These postings occur once the trial is complete and have on certain occasions resulted in better outcomes for his client. This is due primarily to the fact that his opponents are bothered by the information that has been revealed to the public via YouTube. According to Pineau, social media is a way to “take the truth and make it a little more public.”
The National Law Journal: Should Lying About Your Age Online Be a Federal Crime? – Law.com
Washington Times: Tweeters, posters, texters, callers beware: You are creating evidence
Suppose an attorney wants to view the social media site of an unrepresented witness. Can the lawyer look at the site? Yes, there is nothing wrong with the lawyer looking at a public site.
What if the lawyer wants to look at the private portion of the witnesses social media site and in order to do this she must friend or request permission from the witness. Can she friend the witness? If she can friend the witness, what must she disclose when making the request? The answer to the first question is “yes.” The answer to the second question varies on where one practices.
If you practice in Philadelphia or San Diego, the attorney must disclose the fact that the requester is an attorney or the agent of the attorney and that the reason for the request is to assist with upcoming litigation. If you practice in New York City or in Oregon, you don’t have to disclose your identity or reveal the reasons for your friend request. However, the attorney in making this request may not use deception e.g., using a fake name or alias. Oregon has become the most recent jurisdiction to issue an opinion on attorneys accessing private social media data (Oregon State Bar Legal Ethics Committee Opinion 2013-189).
This opinion is noteworthy because it appears to carve out an exception to traditional rules and allow an attorney “to advise clients or others about or to supervise lawful covert activity in the investigation of violations of civil or criminal law or constitutional rights, provided the lawyers conduct is otherwise in compliance with these Rules of Professional Conduct.” Covert activity as defined by this opinion “means an effort to obtain information on unlawful activity through the use of misrepresentations or other subterfuge.”