The ethical tightrope of social media as a litigation tool

Savvy lawyers today use social media to mine and collect important data about litigants. But cross that line from savvy to shady, and you may find yourself in deep do-do.

(Kinda like the blow-out I encountered when I reached inside the back of my youngest’s wetsuit at the pool this weekend to check his diaper. But different. And TMI. Anyway…)

James McCarty of the The Plain Dealer reported here last week that an Ohio prosecutor was fired for pretending to be a woman in a Facebook chat with an accused killer’s alibi witnesses in an attempt to persuade them to change their testimony.

The former prosecutor told The Plain Dealer, “I think the public is better off for what I did.” 

His employer vehemently disagreed.

“This office does not condone and will not tolerate such unethical behavior. He disgraced this office and everyone who works here.”

Not being a criminal lawyer, I do not know how the rules of ethics that govern my practice cross over. But rest assured that chicanery like this will likely earn a civil litigator an ethics charge.

Remember last year, when I posted here about two NJ defense lawyers who were charged with violating ethics rules governing communications with represented parties. The charges arose after a paralegal for the two lawyers allegedly friended an attorney-represented plaintiff in a personal injury case to get additional information to undermine the plaintiff’s claims. Each lawyer disclaimed any knowledge of Facebook’s privacy settings.

My suggestion to you, as it was back then, is to get familiar with social media as a litigation tool. The lesson is also the same: always consider the ethical implications of your actions, whether offline or online. 

And ignorance — of social media or these rules of professional conduct — is no excuse.

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