Tag Archives: Griffin v. Maryland

The Affirmative Legal Duty to Address Social Media Evidence (Guest Attorney Blogger Edition)

John G. Browning

Today we are pleased to welcome a guest attorney blogger, John Browning who is a partner in the Dallas office of Lewis Brisbois Bisgaard & Smith LLP.  John is a frequent writer and speaker on issues related to social media and the law, and the author of the book The Lawyer’s Guide to Social Networking: Understanding Social Media’s Impact on the Law (West Publishing 2010):


John Patzakis’ December 12, 2011
, post on attorneys having an affirmative duty to address social media evidence was spot on.  The commentary by the Maryland appellate court in Griffin v. Maryland that lawyers “as a matter of professional competence” should be investigating social media avenues in their cases represents just the latest in a number of opinions from around the country that demonstrate that the lawyer who ignores online resources does so at his own peril.

For example, in a 2010 Missouri Supreme Court case, Johnson v. McCullough, the court appeared to impose an affirmative duty on attorneys to make online investigation a key part of their jury selection.  In the underlying medical malpractice case, plaintiff’s counsel asked the panel during voir dire about any previous history of lawsuits, and one venire member did not respond.  After a defense verdict, the plaintiff’s counsel investigated that juror’s civil litigation history online (using Missouri’s PACER-like service, Case.net), only to discover that the juror had been a defendant in several debt collection matters and a personal injury case. Plaintiff’s counsel moved for a mistrial; after it was granted, the defense appealed.  The Missouri Supreme Court not only upheld the defense verdict, it also added some pretty strong language about attorneys’ responsibilities “[i]n light of advances in technology allowing greater access to information.”  Saying that “it is appropriate to place a greater burden on the parties to bring such matters to the court’s attention earlier on in a case, the court held that “a party must (emphasis added) use reasonable efforts to examine the litigation history on Case.net of those jurors selected but not empanelled and must present to the trial court any relevant information prior to trial.”

Courts in other states considering due diligence issues have recognized a “duty to Google,” if you will.  An Indiana appellate court in Munster v. Groce was incredulous that the plaintiff’s attorney had failed to Google the absent defendant Groce as a matter of due diligence, noting that the court itself had done so and immediately obtained search results that included a different address for Groce as well as an obituary for Groce’s mother listing numerous relatives who might have known his whereabouts.  And in Dubois ex rel. Butler, a Florida appellate court questioned the effectiveness of an attorney who had only checked directory assistance in order to get an address to serve a defendant, calling such a method in the age of the Internet the equivalent of “the horse and buggy and the eight track stereo.”  In a Louisiana case, Weatherly v. Optimum Asset Management, the appellate court upheld a trial judge’s rejection of a party’s due diligence claims where that judge had conducted his own Internet search and concluded that the proper contact information for the defendant was “reasonably ascertainable.”

Beyond this clear trend toward requiring greater digital savvy on the part of attorneys, ethical rules also mandate that a professionally responsible lawyer should not ignore social media.  Rule 1.1 of the ABA Model Rules requires lawyers to be competent in representation of their clients, with Comment 6 advising that lawyers “should keep abreast of changes in the law and its practice.”  In an age in which Facebook has amassed 800 million users worldwide and studies show that 65% of adult Americans have at least one social networking profile, how competent or diligent is the lawyer who fails to take information from social networking sites into account?

John Browning may be contacted at jbrowning@lbbslaw.com.

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Legal Experts: Attorneys Have an Affirmative Duty to Address Social Media Evidence

First, many thanks to all who participated in our legal ethics and social media evidence collection webinar. Special thanks also to the esteemed Ralph Losey of Jackson Lewis for his participation. Ralph provided informative legal insight as always on this topic and there were many excellent questions and comments by participants. For those who did not attend, you can view and listen to the full recording here. (There is 1 hour MCLE ethics credit available for California attorneys who review the recording in its entirety).  

During the webinar, Ralph noted in the Q&A session that given the widespread importance of social media evidence to just about every type of litigation and investigation matter, it is incumbent on attorneys and their hired consultants to understand and address social media evidence as a standard practice. Losey cited the professional ethics and standards relating to the duty of competent representation. He is not the only prominent attorney or even court to proclaim this. In Griffin v. Maryland, which involved key social media evidence, the court opined that “it should now be a matter of professional competence for attorneys to take the time to investigate social networking sites.” (citing, Sharon Nelson et al., The Legal Implications of Social Networking, 22 REGENT U.L. REV. 1, 1-2 (2009/2010))

Additionally, in her excellent and comprehensive Delaware law review article, “Ethical Risks Arising From Lawyers’ Use of (and Refusal to Use) Social Media,” 12 DEL. L. REV. 179 (2011), attorney Margaret M. DiBianca asserts that the legal duties of competency and duty of diligent representation require that attorneys account for social media in the course of their discovery and investigation efforts. DiBianca pointedly notes that “[n]aysayers and late adopters alike may be equally surprised to learn that ignoring social media altogether may constitute a violation of their ethical obligations.”

And as we outlined a few weeks ago, the Plaintiff’s attorney in Lester v. Allied Concrete Company did not equate social media evidence with more traditional forms, causing him to blithely instruct his client to rid his Facebook page of damaging evidence, resulting in what many attorneys believe is the most severe eDiscovery court sanction imposed upon a lawyer. However, for every situation like the Lester case where relevant social media is brought to the forefront, there are presumably many others where important social media evidence is overlooked by attorneys and their service providers who do not include social media as part of their standard eDiscovery process checklist. As it is now established that social media is highly relevant as evidence, it is important that attorneys, paralegals, eDiscovery consultants and investigators proactively seek out such evidence and include its investigation in their standard processes and checklists. Many legal experts would say professional standards of care require it.

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