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Ethics and Criminal Practice
You meet with a new client, a finance manager of his church. He is being investigated for embezzlement (or is afraid he will be) by law enforcement. As you look at the issue, you become concerned that your client and his supposed cohort, the church treasurer, may have had a meretricious relationship, which might lend credence to the investigation. But your client tells you that is simply not the case.
Your client leaves the office, and you turn to your computer. Don't we all Google everyone these days? Your client's social media page has no security protections, and you start looking around. His background and history look right, nothing unusual about his friends or contacts. The treasurer is one of them, but that is not uncommon these days. Then you begin to look through his photos, and there they are: He and the treasurer raising champagne glasses at Arthur Ashe stadium; smiling at a charity gala; at a business event, animatedly talking; even out to dinner with their spouses. These photos are not inconsistent with them being mere acquaintances, but what of the optics? You, as counsel, begin to visualize what these will look like at a trial if there is a prosecution. Or, forget trial ' what will they look like when the local media gets hold of them in advance of trial?
New York, Philadelphia, Florida, Pennsylvania and, most recently, West Virginia, have weighed in on these and myriad other issues concerning what advice a lawyer can give to a client concerning the client's social media accounts ' West Virginia's opinion being the impetus for this article. New York County Lawyers Association Ethics Op. 745-13 (July 2, 2013) (NY Op.); Florida State Bar Association Committee on Professional Ethics Opinion 14-1, 2015 WL 6484175 (flOp.); Pennsylvania Bar Association Formal Op. 2014-300 (PA Op.); Philadelphia Bar Association Professional Guidance Committee Op. 2014-5 (July 2014) (Phila. Op.); West Virginia Legal Ethics Op. 2015-02 (WV Op.).
Prevalence of Social Media
West Virginia's introductory paragraphs give some insight into the prevalence of social media in society today: 71% of adult Internet users use Facebook and between 23% and 28% use Twitter, LinkedIn, Pinterest and/or Instagram. WV Op. at 1, citing http://pewrsr.ch/1LUOYSq. Not surprisingly, then, an “attorney can reasonably expect that opposing counsel will monitor a client's social media account.” PA Op. at 4.
This is particularly true in the case of law enforcement: As a presentation prepared for the Department of Justice Computer Crime and Intellectual Property Section explains, social media can be used to reveal personal communications, provide location information, prove and disprove alibis, establish crime or criminal enterprise and show instrumentalities or fruits of a crime. And it can (and likely will) be used to map social relationships and networks. U.S. Department of Justice, Computer Crime and Intellectual Property Section, “Obtaining and Using Evidence from Social Networking Sites,” http://bit.ly/1QrBIKs.
In other words, returning to our hypothetical, the social media page of the client under investigation, as presently constituted, would likely reveal that more time was spent with his treasurer than might be wise ' for the case, that is. What do you, as the ethical lawyer, tell your client? Can you tell him to remove the photos? How about tightening his security settings, making it harder for law enforcement (and, very important, the press) to see what is posted? Or, can he leave access open to all and put up only what he (and you) want the world to see? We will discuss these questions in next month's issue.
Joel Cohen is of counsel and James L. Bernard is a partner at Stroock & Stroock & Lavan. They co-teach professional responsibility at Fordham Law School. Dale J. Degenshein, special counsel at Stroock, assisted in the preparation of this article, which also appeared in The New York Law Journal, an ALM sibling publication of this newsletter.
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