Great work by the Atlanta Journal Constitution on an issue that’s bugged me for years: the brazen violation of federal law by investigators and the lawyers who hire them.
At issue is the Gramm Leach Bliley Act, meant to protect the confidentiality of banking records. You are not allowed to pretend to be someone…
We’ve had a great response to an Above the Law op-ed here that outlined the kinds of skills lawyers will need as artificial intelligence increases its foothold in law firms.
The piece makes clear that without the right kinds of skills, many of the benefits of AI will be lost on law firms because you…
One lawyer we know has a stock answer when clients ask him how good their case is: “I don’t know. The courts are the most lawless place in America.”
What he means is that even though the law is supposed to foster predictability so that we will know how to act without breaking our society’s…
One of the most fruitful avenues of investigation is to look at material that nobody ever thought would harm them. That’s the kind of material people do not take great pains to hide. Why hide it when it won’t hurt you and there is so much else in the world to worry about?
Trusts set …
Clients often ask us whether we tape-record phone calls we make in the course of an investigation. Our brief answer is, “never.” Here is why:
Some states allow tape recording conversations if one of the two people in the conversation is aware that a tape is rolling, but some require that …
“Three may keep a secret,” wrote Benjamin Franklin, “if two of them are dead.” While attorney-client privilege confers a lot of power on lawyers and their agents to keep a secret, the privilege is never absolute. It can be waived by the client anytime, and can be breached in all sorts of ways.…
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Investigators need to be familiar with all the ins and outs of social media sites in order to best help their clients. For example, through social media we’ve tracked down witnesses for litigation and beneficiaries of wills and trusts. Social media is a great tool for uncovering evidence of adultery in a divorce case. In addition, social media can provide evidence of intellectual property infringements or corporate policy violations.
Unfortunately, keeping up with the changes in social media technology may be easier than keeping up with the changes in Internet law. The legal community and the courts are still trying to figure out how social media, free speech, legal ethics and privacy laws intersect. In fact, it seems like every other week there is an important judicial decision or ethical ruling regarding how social media can and cannot be used in legal and corporate investigations.
Case in point: earlier this month a federal judge in California significantly curtailed the social media postings that defendant Home Depot could obtain in an unlawful termination case brought by a former employee. The Southern California magistrate judge explained that the federal rules dictating that electronic document requests be specific and directly relevant to the lawsuit apply to social media postings as well. Therefore Home Depot’s expansive request for all posts that reveal the plaintiff’s emotional state and every photograph she posted on her social media accounts was impermissibly broad.
So what sort of social media information can investigators working for attorneys obtain for their clients? State Bar associations have been wrestling with this issue for the past several years. The general consensus appears to be that any information that a user made publically available to all members of a network can be obtained without restriction. (see the NYSBA Opinion #843 (9/10/2010) and Philadelphia Bar Opinion 2009-02 (March 2009)) This means that everything is fair game if the user’s privacy settings are turned off.
But what happens if the social media user has privacy settings that block access to anyone who is not a “friend?” In those cases clients will ask if we can overcome this pesky restriction and friend the person using an alias. Our answer is always an unequivocal “No, we can’t.”
Legal ethics decisions dictate that neither an attorney nor an agent working on their behalf, like an investigator, can gain access to any secure information if doing so requires either directly or indirectly deceptive behavior. This means an investigator can’t use an alias and pretend to know the social media user in order to be deemed a “friend” and be granted permission to otherwise restricted information.
Keep in mind that even if the investigator does not use an alias, the act may be deemed unethical. This is because the investigator has omitted a material fact to the social media user–namely that they were being contacted solely to obtain information for an attorney to be used in a pending matter.
The issue is much more complicated if the social media user is a represented or unrepresented party in a pending litigation. If the person is a represented party, then under no circumstances can they be contacted without the prior consent of their lawyer. And if they are unrepresented, then the lawyer can’t claim that they are disinterested in the issue at hand. Furthermore, if the user is unrepresented, the lawyer has an obligation to correct any misunderstandings as to their role and to ensure that they don’t offer any legal advice if the social media user’s interests conflict with those of the attorney’s client.…
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This blog takes no position on the merits of a motion filed to disqualify Kasowitz from representing plaintiffs in a lawsuit against SAC Capital Advisors and others.
We haven’t even read the motion, but are relying solely on a report from New Jersey state court on it via Bloomberg.
The fact pattern reads like …
