The social media investigation raises several ethical concerns about contacting the opposing party and the duty of diligence. First, any actions by the investigator is likely to be imputed to the firm and the lawyers, because of Rule 5.3. Second, social media investigation is likely to raise ethical concerns such as violating third party rights under Rule 4.4, communications with a represented party under Rule 4.2, and misrepresentation under Rule 8.4. Competing against these concerns is the duty of diligence, which requires attorneys to protect their client’s interest to the fullest extent possible. Importantly, the way in which the investigator pursues the evidence will likely determine whether it is ethically permissible. The firm should likely ask the investigator to look into the plaintiff’s social media, but only for information that is publicly available.
Responsibility for Non-Lawyers
Lawyers are responsible for the actions of non-lawyers that they supervisor, and therefore ethical violations by a non-lawyer may be imputed to the lawyer. Lawyers must make reasonable efforts to ensure that non-lawyers that work for them comply with ethical rules. Rule 5.3(b). The comments specifically lists investigative services as the type of agent that lawyers need to ensure do not violate the ethics rules. R.5.3, cmt. 3. If the non-lawyer acts on the lawyer’s orders then any violations of the ethical rules can be imputed to lawyer. R.5.3(c). Therefore, if the investigator violates any ethical rules while looking into the plaintiff’s social media, then such a violation will be imputed to the firm. As such, we need to take reasonable steps to ensure that our investigator does not violate the ethical rules. R...
... middle of paper ...
...3 requires us to go after important evidence for our client, we may be required to pursue the evidence in some fashion even with some ethical concerns.
The firm should likely ask the investigator to use social media to find information about the plaintiff’s injuries, but they should ask the investigator to only look at public information. Otherwise, the firm risks violating Rule 8.4 if the investigator mispresents himself or Rule 4.2 if the investigator communicates with the opposing party. Furthermore, Rule 1.3 may even require this effort. It should be noted the firm should consider pursing other means such as discovery requests to get this information. If such means are not pursued, then the firm should likely use the investigator to pursue the social media evidence, but should take reasonable steps to ensure that an ethical violation does not occur.
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