Ethical Issues in e-Discovery of Facebook Evidence

By | January 8, 2020

In the previous blog, it was noted that the overwhelming interest by litigating counsel in e-discovery of Facebook evidence in civil litigation gives rise to some ethical concerns. McPeak (2014) has noted that these ethical concerns arise in the context of rules of professional conduct relating to (1) the duty of a lawyer to investigate facts related to the litigation, (2) duty to preserve evidence in litigation, and (3) the rule prohibiting contact with a represented party.

The duty of a lawyer to investigate facts in social media

Rule 3.1 of the Rules of Professional Conduct defined a competent lawyer as one who possesses not just knowledge of legal principles and procedures, but also “relevant…skills and attributes” necessary for “investigating facts”. The commentary to Rule 5.1 goes further to state that a lawyer in a litigation has a duty to raise any issue and advance any argument which in the opinion of the lawyer will advance the client’s case. The Rule also imposes a duty on the lawyer to raise any “defence authorized by law.”

The lawyer’s loyalty to the client is limited by the duty to be honest to court. According to Hutchinson in Legal Ethics and Professional Responsibility, “the court must be able to rely on the fact that it is not being fed out-and-out lies. As advocates, lawyers … ought not to employ strategies that are intended to misled the court or to influence decisions by anything other than open persuasion.” Thus, a lawyer is precluded from assisting or permitting the client to engage in dishonest and dishonourable acts or conducts. This includes deliberate attempt to influence the outcome of a litigation by misstating facts or suppressing facts that ought to be disclosed.  A lawyer should not “knowingly assert as true a fact when its truth cannot reasonably be supported by the evidence.” Before asserting claims on behalf of its client, the lawyer has a duty to thoroughly investigate facts upon which the claims are founded. This duty goes beyond merely accepting as true all information provided by the client without further inquiry.

Considering the growing use of social media evidence in personal injury litigation, a competent plaintiff lawyer may need to investigate social media evidence especially those that relate to its client to ascertain that the claims in the litigation are well-founded. Plaintiffs in personal injury litigation may tend to exaggerate their injury to claim damages which they are not entitled. Hence, where the social media evidence clearly contradicts any of the client’s claim, the lawyer has a duty not to deliberately influence the outcome of litigation by misstating facts, or knowingly asserting as true a fact which is clearly contradicted by evidence.

Duty to preserve evidence in litigation

Where a social media investigation reveals that a claim is not well-founded, the lawyer cannot and should not advise the client to destroy such evidence in order to proceed with the claim(s). Doing so would amount advising the client to engage in dishonest and dishonourable act or conduct. That would also attract serious sanctions from the court. In Lester v. Allied Concrete Co. 736 SE 2d 699 – 2013 the plaintiff lawyer instructed his client to “clean up” his Facebook page – implying he should destroy evidence detrimental to his claim in the case. The lawyer also came up with a plan to deactivate the plaintiff’s Facebook account so that he could respond negatively to any question at examination for discovery regarding his ownership any Facebook account. The court awarded some $722,000 in sanction. Of the sum, $542,000 was awarded against the plaintiff’s lawyer, and $180,000 against the plaintiff for “extensive pattern of deceptive and obstructionist conduct.” The lawyer was also suspended from practice for five years.

The rule prohibiting contact with a represented person

Rule 7.2-6 of the Rules of Professional Conduct prohibits a lawyer from communicating with a represented person on the matter which is the subject of a proceeding, when this rule is read in line with Rule 2.1 and its commentary, it appears that any communications with a represented person which may give rise to an appearance of impropriety is prohibited even if such communication falls outside the subject matter of the litigation. Such a situation may arise where the lawyer uses misrepresentation or deceptive means to communicate with the represented person e.g. posing as a different person.

The “no contact” rule is subject to the “observation exception”. Hence a lawyer can monitor the activity of a represented person while in public setting. The “no contact” rule applies to the lawyers but not the clients. However, the lawyer cannot procure or instruct the clients or their agents to engage in conducts for which the lawyer is prohibited from engaging in himself.

The Rule prohibiting communication with represented persons also applies in the online world especially in relation to communication via social media platforms like Facebook. In various ways, informal e-discovery of Facebook evidence comes with risks of professional misconduct for which a lawyer should be careful to avoid. Facebook as a social media platform provides forum for which a lawyer could “approach or communicate or deal with” a represented person. Thus, applying the “observation exception” to the rule stated above, there is nothing unethical if a lawyer engages in informal discovery of publicly accessible evidence in public profile of a represented person’s Facebook account. Such conduct clearly falls within the “observation exception” discussed above.

However, ethical problems may arise where a lawyer seeks access to information in the private Facebook profile. Attempts to gain such access will require the lawyer ‘approaching or communicating’ with the represented person. This would usually take the form of sending a “friend” request to the owner of the Facebook account. This may occur in any of three ways. First the lawyer could send a “friend” request using his real identity i.e. the lawyers personal or business Facebook profile. Secondly, the lawyer could create a Facebook account using a fake identity to conceal the truth of the lawyer’s identity from the prospective Facebook “friend”. This is also known as “pretexting”. Thirdly, the lawyer could instruct a third party to use any of the two methods above to access the information. In any of these cases, there is a clear violation of ethical rules.

Seeking to gain access to information on a represented person’s private Facebook profile using a fake identity or “pretexting”, not only violates the “no contact” rule but also Rule 2.1-1 relating to integrity in the practice of law. Such dishonourable and questionable conduct has the tendency to reflect adversely upon the integrity of the legal profession and the administration of justice.

In addition, seeking to gain access to private Facebook profile of a represented party by procuring a third party to “friend” the party is prohibited because rules of professional conducts that apply to a lawyer also apply to persons acting under the instructions of the lawyer. There does not appear to be a breach of the Rules if the lawyer obtains evidential information about a represented person through third parties who are already Facebook “friends” with the represented party. Such investigatory technique does not amount to ‘approaching or communicating or dealing with the person on the matter.’ In fact, the position of such third party “friends” of the represented person can be compared to those of potential witnesses in the proceeding. A lawyer can ethically (subject to disclosure) approach and communicate with friends of a litigant for the purpose of investigating and gathering information relevant to the litigation. Such conduct does not amount to ‘approaching or communicating or dealing’ with the represented person.

In the Ontario case of Schuster v. Royal & Sun Alliance Insurance Company of Canada 2009 CanLII 58971 (ON SC), the law firm retained by the defendant insurer accessed and obtained evidential information relating to the plaintiff through the plaintiff’s mother-in-law’s Facebook account. The mother-in-law was a friend of the plaintiff on Facebook. The evidence obtained was used in an affidavit in support of a motion in the proceeding, and there was no imputation of professional misconduct on the part of the lawyer with regards to how the evidence was obtained.

Since the Rules of Professional Conduct does not apply to the clients, a lawyer incurs no ethical responsibility with regards to the conduct of its clients acting independent of the lawyer’s instruction. Thus, a client can use whatever e-discovery technique (no matter how unethical it might appear) to gather evidence from a party’s Facebook account relevant to the litigation. If such evidence is admissible under the relevant Rules of Civil Procedure, there is no ethical rule which prevents the lawyer from using the evidence in the course of the proceeding. It is obvious that many ethical issues arise in informal e-discovery of information in Facebook profile of represented persons in the course of legal proceedings. Where such ethical issues cannot be resolved, there may be need for the lawyer to resort to formal e-discovery of the evidence. The next blog will examine the legal approach in Canada to formal e-discovery of private profile Facebook evidence in civil litigation.

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