When Law Meets the Internet

A Philadelphia lawyer hired an investigator to pose as a “friend” for the purpose of gathering information from a third party’s Facebook and MySpace pages because the lawyer thought they contained information that would be helpful during a deposition in impeaching the witness, who was not represented by a lawyer.

The Philadelphia Bar Association Professional Guidance Committee addressed this issue in a March 2009 opinion and found the conduct deceptive.

“Deception is deception, regardless of the victim’s wariness in her interactions on the Internet and susceptibility to being deceived,” the committee wrote.

It made a distinction between this action and the practice of videotaping the public conduct of a plaintiff in a personal-injury case when attempting to show that the injured party is capable of performing certain physical acts when a claim is made to the contrary because the videographer “simply follows the subject and films him as he presents himself to the public.  The videographer does not have to ask to enter a private area to make the video,” according to the committees’ opinion.

Many rules of professional conduct regarding the ethical conduct of lawyers come into play when entering the unchartered waters of the Internet: ABA Model Rules of Professional Conduct on Competence (Rule 1.1), Rule 3.2 on Expediting Litigation, Rule 3.3 on Candor Toward the Tribunal, Rule 3.4 on Fairness to Opposing Party and counsel, and Rule 5.3 on Responsibilities Regarding Nonlawyer Assistance.

There issues often arise in intellectual property and employment law as well as for in-house counsel.

Illinois has comparable Rule fo Professional Conduct that became effective Jan. 1 that include extensive comments.

It should be noted that Illinois Supreme Court Rule 201(b) on General Discovery Provisions was amended in 1995 to include “all retrievable information in computer storage” to reflect “the increasing reliability on computer technology and thus obligates a party to produce on paper those relevant materials which have been stored electronically.”

The 7th Circuit is sponsoring the E-Discovery Pilot Program initiated in May 2009 by Chief Judge James F. Holderman and chaired by Magistrate Judge Nan R. Nolan.  After months of collaborative work, the committee, made up of lawyers from the Chicago area in diverse areas of practice, hammered out Principles and a Standing Order. 
The principles are being tested by various judges throughout the 7th Circuit, and a careful survey of the results is being kept.

Holderman expects to report the survey result in June with the goal of achieving reduced costs of discovery.  Some of the principles include 1.03, which provides that discovery proportionality be reasonably targeted, clear and as specific as practicable, as set forth in Fed.R.Civ.P. 26(b)(2)(C), which calls for requests for production of electronically stored information (ESI).

Principle 2.10 to discusses the duty to meet and confer on discovery and to identify disputes for early resolution.  Principle 2.02 allows for the participate of an e-discovery liaison who will aid the parties in discovery dispute resolutions and be allowed to have reasonable access to the parties’ electronic systems and capabilities in order to facilitate the e-discovery process.  Preservation and production format also are dealt with in these well-thought-out principles.

Ready or not, lawyers are being hurled into the technology era, but they should tread with caution.  Whether it is proper advertising, developing a firm policy on social media, complying with e-discovery rules or protecting the attorney-client privilege through inadvertent production of documents, lawyers need to make themselves familiar with what is going on in order to protect their clients and their work.

For example, if a lawyer has a Facebook account, do you really want potential clients seeing a post, “going on a three-week cruise.”  Or with LinkedIn, do you know that every person you are “linked: to will have access to all of the data and contacts you show?  That may be okay for clients; for competitors, probably not.

The Nielsen Co. Reported in 2008 that people spent almost 14 billion minutes on Facebook, 5 billion minutes on MySpace, 300 million minutes on Twitter and 202 million minutes on LinkedIn.  Do you feel like you are missing out on something?  You shouldn’t.

In order to help lawyers wade through some of this, my firm sponsored a free continuing legal education program on Feb. 25 titled “The Ethics of E-Discovery and Social Media,” presented by John M. Barkett, author of the first book that addresses the ethical implications of this subject, and James J. Grogan, chief counsel of the ARDC.  They will speak and take questions for two hours.  They program has been approved for two hours of professional responsibility credit.

For example, Barkett recommends that no firm should engage in electronic document production without a case management order that provides for the return of inadvertently produced information, whether metadata or privileged information.