Journal of American Law

SPRING 2015

The Journal of American Law is a peer-reviewed journal and the only one of its kind in the country. The Journal is a law review focused on important legal issues ranging from complex litigation to Supreme Court rulings.

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Spring 2015 // Journal of American Law 11 inquiry into the facts of the problem 4 . Moreover, under Com- ment 1 to Rule 1.3 Diligence, a lawyer must act with commitment to the interests of the client and with zeal in advocacy on the cli- ent's behalf. 5 Tese concepts extend to social media discovery. Lawyers cannot aford to ignore this technology simply because it appears novel or complicated. Te requirement to provide com- petent representation compels lawyers to pursue this evidence just as they would any other kind of relevant evidence. Attorneys must balance the responsibility to provide competent and zealous representation with ethical duties re- garding fairness and truthfulness. Rule 4.1 Truthfulness in Statements to Others 6 forbids a lawyer from making a false statement of material fact to a third person during the course of representation. It also prohibits failing to disclose a mate- rial fact to a third person when that disclosure is necessary to avoid assisting in a criminal or fraudulent act by a client. Rule 3.3 Candor Toward the Tribunal 7 prohibits a law- yer from making a false statement of fact or law to the court. It also commands lawyers to take remedial measures when a client engages or intends to engage in criminal or fraudulent conduct related to the proceeding. Rule 3.4 Fairness to Opposing Party & Counsel 8 forbids attorneys from unlawfully obstructing another party's access to evidence. Attorneys may not alter, destroy, or conceal ma- terials having potential evidentiary value. Rule 8.4 Misconduct 9 bars lawyers from engaging in dis- honest, fraudulent, or deceitful conduct. It is misconduct to knowingly assist or induce another to violate the rules. A law- yer must ensure that non-lawyer assistants comply with the professional obligations of the lawyer. 10 When the ABA amended the Model Rules in 2013, none of the revisions specifcally addressed social media. Te most relevant change was the addition of a single comment that "a lawyer should always keep abreast of changes in the law and its practice, including the benefts and risks associated with rel- evant technology…." 11 Te ABA's decision not to signifcantly alter the rules constituted an afrmation of the ability of tra- ditional principles to address modern questions. However, the choice lef attorneys with little specifc guidance regarding so- cial media. A patchwork of local bar association opinions has arisen to fll the void. While the opinions are helpful, the results have been inconsistent. false friending Te most controversial is the debated practice of "false friend- 4 Model Rules of Prof'l Conduct R. 1.1 cmt. 5 (2013). 5 Model Rules of Prof'l Conduct R. 1.3 cmt. 1 (2013). 6 Model Rules of Prof'l Conduct R. 4.1 (2013). 7 Model Rules of Prof'l Conduct R. 3.3 (2013). 8 Model Rules of Prof'l Conduct R. 3.4 (2013). 9 Model Rules of Prof'l Conduct R. 8.4 (2013). 10 Model Rules of Prof'l Conduct R. 5.3(b) (2013). 11 Model Rules of Prof'l Conduct R. 1.1 cmt. 8 (2013). ing." 12 Generally, attorneys may access and review public por- tions of an opposing party's or witness' social media page. Tis follows the conventional rule articulated by the Supreme Court of West Virginia in State ex rel. State Farm Fire & Ca- sualty Co. v. Madden. 13 Tere, the court held that lawfully ob- serving a represented party's activity that occurred in the full view of the general public did not violate ethical rules. 14 Not all portions of a social media page are visible to all members of the public. Some parts are accessible only by in- dividuals to whom the author has granted permission. On Facebook, granting this permission is accomplished through a "friend request" or "friending." 15 One party sends an elec- tronic message to another with the option to accept or decline. Te message can include additional text or merely the sender's name. If the target accepts, then both parties may view each other's online content. Te availability of personal informa- tion to online friends creates the potential for false friending. "False friending" refers to the practice of an attorney or agent surreptitiously gaining access to a witness' social media site by sending the witness a friend request. To increase the chances the target will accept, the sender might hide his true identity. Once the individual accepts the request, the investigator gains unfettered access to the author's content. Te New York State Bar Association's Committee on Pro- fessional Ethics addressed this practice in its Opinion 843. 16 Te committee clarifed that a lawyer representing a client in litiga- tion may access the public pages of a witness' social networking site for the purpose of obtaining possible impeachment material. As long as the attorney does not friend the witness, or direct a third person to do so, accessing the social networking pages is not an ethical violation. On the other hand, gaining access to pri- vate pages using deception would violate ethical rules. In partic- ular, false friending implicates Rule 4.1's bar against making false statements and Rule 8.4's prohibition against deceptive conduct. Te Philadelphia Bar Association Professional Guidance Committee also condemned false friending. Opinion 2009-02 addressed whether an attorney can friend an unrepresented adverse witness. 17 Te committee declared that it would be de- ceptive for an investigator to friend such a witness, even if the investigator used his own name. A friend request with no ac- 12 "Te Sedona Conference" refers to this concept as "pretexting," highlighting the fact that the attorney or investigator obtains ac- cess through deception. Te Sedona Conference Primer on Social Media (Oct. 2012). 13 State ex rel. State Farm Fire & Cas. Co. v. Madden, 451 S.E.2d 721 (W. Va. 1994). 14 Id. at 730. 15 Other social media services use diferent terms to describe essen- tially the same function. For example, Google+ uses a "+1" feature, and LinkedIn allows users to "Connect" with other account holders. Although the information presented here is applicable to social net- working generally, this article uses Facebook as an example through- out due to its status as a ubiquitous provider of social media services. 16 N.Y. State Bar Ass'n Comm. on Prof 'l Ethics, Op. 843 (2010). 17 Philadelphia Bar, Op. 2009-02 (2009).

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