Lawyers and Social Media: How to Manage the Ethical Pitfalls of Modern Investigative Tools

Posted on 07-17-2015 by
Tags: social media , Latest Headlines & Stories , #SocialLawyering

The internet and social media have become the information hub of this generation. All information is now at our fingertips. This has proven to be a useful development, especially in the legal profession. When it comes to research social media has become a useful tool, but with it comes muddy ethical rules regarding use of social media for research. According LexisNexis Corporate Law Advisory, here are some things to consider.

A paucity of guidance

The ABA offers no clear guidance for conducting social media research within ethical boundaries. Any guidelines may vary by state or apply to a very narrow subject. Another problem lies with the fact that the case law that exists tends to concentrate in narrow subject areas such as divorce, where there has been a rise of using social media research for these types of cases.

An initial step

To make things clearer regarding juror research, the ABA’s Committee on Ethics and Professional Responsibility has said :

  • Attorneys can look at public information on jurors’ and potential jurors’ social media accounts, blogs and websites.
  • Lawyers should not, however, personally, or through others, request access to information that a juror has not made public.
  • A lawyer also may view social media that automatically notifies the juror that the lawyer has viewed it. **The ABA does not consider this impermissible contact with a juror**

Advantages of social media research

You can find photos that help take down opponents. For example for some injury cases, some plaintiffs have posted pictures of themselves doing activities just after the alleged injury occurred. These kind of instances damage their case but help the opponent take them down.

Going about it

You can get information off the internet, but you have to be able to authenticate it in order to use it in court. Normal rules of evidence and authentication still apply. Keep the following in mind:

  • You likely must prove that the information you are capturing accurately reflects the information on the social media website.
  • Printing Documents: provide as much detail as possible because you may have to provide a foundation for the evidence at a later date.
  • Whoever did the work should consider signing a declaration detailing how and when they did the work.

Avoid the gray areas

Avoid getting into areas of uncertainty. Until the guidelines and rules become clearer it is best to stick to publicly available information.

To read more see the full article here.

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