Agnieszka McPeak.
Social media has entered the mainstream as a go-to source for personal information about others, and many litigators have taken notice. Yet, despite the increased use of social media in informal civil discovery, little guidance exists as to the ethical duties—and limitations—that govern social media snooping. Even further, the peculiar challenges created by social media amplify ambiguities in the existing framework of ethics rules and highlight the need for additional guidance for the bench and bar.
This article offers an in-depth analysis of the soundness and shortcomings of the existing legal ethics framework, including the 2013 revisions to the American Bar Association’s model rules, when dealing with novel issues surrounding informal social media discovery. It analyzes three predominant ethics issues that arise: (1) the duty to investigate facts on social media, (2) the no-contact rule and prohibitions against deception, and (3) the duty to preserve social media evidence. While the first two issues can be adequately addressed under the existing framework, the rules fall short in dealing with the third issue, preservation duties. Further, even though the existing ethics rules can suffice for the most part, non-binding, supplemental guidelines, or “best practices,” should be created to help practitioners and judges navigate the ethical issues created by new technology like social media.