ETHICAL USE OF EVIDENCE DERIVED FROM MULTIPLE SOCIAL MEDIA OUTLETS

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1 ETHICAL USE OF EVIDENCE DERIVED FROM MULTIPLE SOCIAL MEDIA OUTLETS ASSOCIATION OF CORPORATE COUNSEL PARALEGAL INSTITUTE OCTOBER 7, 2014 Presented by: Mitchell D. Dean, Esq. Heather E. Paradis, Esq. Daley & Heft, LLP 462 Stevens Avenue, Suite 201 Solana Beach, CA Telephone: (858) Facsimile: (858)

2 SOCIAL MEDIA IS EVERYWHERE

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11 PEOPLE V. PERRY 9/29/14 California case. First degree murder. Gang member. Police served search warrant on Instagram account SL_Midnight112 Got photos, captions, user information Photos showed defendant, was defendant s moniker, account was password protected Properly authenticated. Relevant for identity of shooter and gang membership. Defendant convicted.

12 DUTY TO GOOGLE? Many jurisdictions recognize a lawyer s duty to Google. In Munster v. Groce, 829 N.E.2d 52, the court was incredulous that the plaintiff s attorney had not bothered to Google the absent defendant as a matter of due diligence. A Florida court found that an attorney who only checked directory assistance to locate a defendant failed to act diligently. While prior case law has not drawn a bright line between efforts that show due diligence in locating a defendant and those that are insufficient, what was done here falls short of "an honest and conscientious effort. Dubois v. Butler, 901 So. 2d 1029, 1031 (Fla. Dist. Ct. App. 4th Dist. 2005)

13 COMPETENCE ABA Model Rule Competence A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. The Commission commented: To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all legal education requirements to which the lawyer is subject.

14 COMPETENCE Lawyers (and those assisting lawyers) must use the latest technology and social media sources to conduct investigations, engage in legal research, advise clients, and conduct discovery. The more digging around the net becomes the norm, the harder it is for an attorney to say she has met the standard of competence when she has ignored social media avenues. Agree?

15 DILIGENCE ABA Model Rule Diligence A lawyer shall act with reasonable diligence and promptness in representing a client. The Commission notes that an attorney has a duty to act... with zeal in advocacy upon the client s behalf. Thus, it must be considered that a lawyer who fails to search social networking platforms for digital information fails to act competently or diligently for their client. The Commission s revisions to the Model Rules reflect both the reality of conducting a legal practice in the twenty-first century, as well as the trend to hold lawyers professionally accountable for their use of social networking and online resources.

16 ABA MODEL RULES OF PROFESSIONAL CONDUCT Rule 4.1(a) In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person Rule 8.4(c) prohibits conduct involving dishonesty, fraud, deceit or misrepresentation.

17 CALIFORNIA LAWYERS BOUND BY ABA MODEL RULES? NO California has not incorporated the ABA Model Rules into its Rules of Professional Conduct or its State Bar Act. BUT Cal. Business and Professions Code section 6068(d) makes it the duty of a California lawyer [t]o employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with the truth, and never seek to mislead the judge... by an artifice or false statement of fact or law.

18 COMMON LAW DUTY NOT TO DECEIVE [T]he case law is clear that a duty is owed by an attorney not to defraud another, even if that other is an attorney negotiating at arm s length. Cicone v. URS Corp. (1986) 183 Cal.App.3d 194, 202

19 COMMON LAW DUTY NOT TO DECEIVE Accordingly, a lawyer communicating on behalf of a client with a nonclient may not knowingly make a false statement of material fact to the nonclient. Vega v. Jones, Day, Reavis & Pogue (2004) 121 Cal.App.4 th 54,74

20 CALIFORNIA RULES OF PROFESSIONAL CONDUCT Rule Communication With a Represented Party (A) While representing a client, a member shall not communicate directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer, unless the member has the consent of the other lawyer.

21 CALIFORNIA RULES OF PROFESSIONAL CONDUCT Rule (continued) (B) [A] party includes: (1) An officer, director, or managing agent of a corporation...or (2) an... employee of a...corporation. (If that employee can bind the corporation with her statements, or be an admission on behalf of the corporation.)

22 PUBLICLY AVAILABLE INFORMATION FAIR GAME! No improper contact or communication No deceit Available to anyone else as well Out there for the world to see

23 LOOKING AT JUROR S SOCIAL MEDIA? YES, IT IS OK - PUBLIC California has not addressed this yet April 2014 ABA s Standing Committee on Ethics and Responsibility (Opinion 466) said: Unethical for lawyers to communicate with jurors and impermissible to attempt to access jurors social media information that was private. BUT publicly available information was fair game. Just like observing a juror from a car while driving by the juror s home.

24 PRIVATE INFORMATION NO! Facebook example: Add a friend click causes Facebook to send a message asking the would-be friend to confirm you as a friend. It has your name and any mutual friends. Problems: Communication with represented party. Deceit if you don t use your real name.

25 WHAT ABOUT FRIENDING A WITNESS? Not a represented party, so no improper communication, but..

26 SAN DIEGO COUNTY BAR ASSOCIATION LEGAL ETHICS OPINION It is an impermissible deception to seek to friend a witness without disclosing the purpose of the friend request, even if the witness is not a represented party So, an attorney cannot deceive a lay witness.

27 FICTIONAL BABY MAMA Cleveland, Ohio prosecutor FIRED after posing as a murder defendant s baby mama on Facebook in order to communicate with 2 female alibi witnesses for the defense and to try to persuade them not to testify..and Mistrial declared

28 HAVE THE PARALEGALS DO IT! Two New Jersey lawyers faced disciplinary charges Directed paralegal to friend the plaintiff on Facebook during a personal injury suit.

29 HAVE THE PARALEGAL DO IT! The lawyers were charged with numerous New Jersey Rules of Professional Conduct (RPC) violations, including communication with person represented by counsel, failure to supervise a non-lawyer assistant, conduct involving dishonesty and violations of ethics rules through others actions, and conduct prejudicial to the administration of justice. The more-senior attorney was also charged with violations of ethical obligations on supervising lawyers.

30 ETHICAL DUTY TO PRESERVE INFORMATION? ABA Model Rule 3.4 Fairness To Opposing Party And Counsel A lawyer shall not: (a) unlawfully obstruct another party' s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act; (b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;

31 SO, CAN FACEBOOK CONTENT BE DELETED? NOPE. Plaintiff s attorney directed his paralegal (yes, again!) to instruct the client to delete content from his Facebook page that depicted him as something less than a grieving widower. 16 photos deleted. After $10.6 million verdict, defense moved for new trial spoliation of evidence. Verdict cut in half and imposed SANCTIONS of $722,000 on plaintiff s attorney. (Lester v. Allied Concrete (2013) 736 S.E.2d 699)

32 DELETE CONTENT BEFORE ACTION FILED AND BEFORE DISCOVERY REQUESTS? Lester involved the pendency of a lawsuit and after discovery requests made about the content of the Facebook account What about before lawsuit is filed? What about before any discovery requests are made? Change to private settings?

33 Perfectly ok WHAT ABOUT FORMAL DISCOVERY REQUESTS? Interrogatories, requests for production of docs for content of social media Subpoenas to social media sites? Retention of expert to mine and archive social media?

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