Are you completely ignoring social media? Are you blocking access to social media sites at your firm? Are you using social media to get evidence for trial? If you’re not careful, you may be violating your state’s ethics rules.

Federal prosecutors are scouring the Facebook pages of defendants. More and more divorce cases include incriminating evidence captured on social media sites. As the use of social media evidence at trial continues to grow, some courts are beginning to delve into the ethical boundaries of obtaining such evidence and even a lawyer’s ethical obligations to provide competent representation.

In their recent article, Ethical Bounds of Using Evidence From Social Networks, H. Christopher Boehning and Daniel J. Toal, provide a brief synopsis of recent decisions discussing how lawyers in certain jurisdictions may permissibly obtain information on social networking sites. Here are some areas the synopsis covers:

  • Lawyers ability to access Facebook information of a party other than their client in pending litigation.
  • Friending, or directing another to friend, a party or witness to obtain evidence.
  • Monitoring juror activity on social media networks.
  • Competency of representation related to knowledge of social media.
  • Diligent representation related to investigating social media sites.
  • Preservation of social media evidence.
  • Third-party communications related to social media.

That’s right friends, unilaterally ignoring social media might actually get you into hot water with your state bar. And while that might seem absolutely ridiculous to some lawyers, is it any different than competency and diligence issues relating to checking phone records, emails, or even security camera footage?

The admissibility of social media evidence at trial is another interesting issue. Nonetheless, use of such evidence is likely to continue experience dramatic growth. It’s also creating a whole new industry of companies that collect social media information for later use in a variety of context. Couple this with a society that is largely clueless, or perhaps apathetic, about what they’re sharing online, and we have a recipe for a lot very interesting legal issues relating to privacy and various constitutional rights.

Have you run into social media evidence issues in your practice? Let’s hear some war stories.


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