CBA Record January 2018

Y O U N G L A W Y E R S J O U R N A L

INTERPRETING HOW SOCIAL MEDIA RESEARCH ALIGNS WITH THE PROFESSIONAL CONDUCT RULES Evidence to Impeach or an Ethical Breach? By Erin McCartney

W ith the pervasiveness of social media, many people turn to their favorite sites to share details of their daily lives. For those who become involved in litigation, though, their willingness to disclose personal infor- mation in such a carefree manner could be particularly helpful in the discovery phase of litigation. Researching opposing parties, witnesses, or jurors through social media can provide a treasure-trove of informa- tion that 10 years ago might have taken a private investigator months to obtain. A Google search alone can provide a subject’s

how social media’s ever-evolving commu- nication features align with the professional conduct rules has many ethics experts scratching their heads. For example, ABA Model Rule of Professional Conduct 4.2 advises that a lawyer shall not communicate with a person known to be represented by another lawyer in the matter, unless the lawyer has consent or is authorized to do so by law. This rule is intended to protect a represented party against possible interfer- ence by other lawyers and the uncounseled disclosure of information relating to the representation. Given the straightforward

age, address, occupation and possibly even an embarrassing high school portrait–or worse. However, lawyers need to be aware of the emerging ethical violations that could result from their sleuthing activities. Represented and Unrepresented Parties Before Facebook, Instagram and LinkedIn, the Model Rules of Professional Conduct addressing communication with non- clients were more cut and dried. Although these online forums are fairly new, the professional conduct rules that apply to them are not. Indeed, trying to interpret

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