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Could Failure to Search Social Media in Civil Litigation Violate an Attorney’s Duty to Provide Competent Representation?

social media search

Of all the investigative services we offer at Millennium Intelligence Agency, one service that continues to be regularly requested and routinely included in helping attorneys in civil litigation is social media investigations. A social media history search can be vital to evaluating, establishing or attacking the credibility of a party or witness. In addition, social media posts can provide direct and corroborative evidence that can be useful across the board in litigation, from evaluating a prospective client or opposing party or vetting members of a jury pool to challenging or disproving statements made in depositions or trial testimony.

Social media have become such an integral part of most people’s lives that not only can a social media search prove valuable to a case, but failing to take that step might be considered incompetence on the part of the attorney. We discuss this intriguing (and frightening) concept below. For social media searches or other investigative tools to buttress your civil case, contact Millennium Intelligence Agency to discuss your needs with a skilled and experienced California licensed private investigator.

Rule 1.1 Competence

For more than 40 years, the American Bar Association has published Model Rules of Professional Conduct, and while not binding on lawyers in and of themselves, the ABA Model Rules have formed the basis of legal ethics rules adopted by state courts and bar associations and binding attorneys in all fifty states and the District of Columbia. Although you should familiarize yourself with the rules adopted in your jurisdiction, referring to the model rules in any instance is nearly always a close approximation (if not identical) to your local rules and a worthwhile exercise.

The very first rule governing attorney conduct – Rule 1.1 – is Competence. This brief rule, stated in full, requires that “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”

In 2009, the ABA Ethics 20/20 Commission was appointed in part to study the impact of technology on the practice of law. In 2012, this Commission recommended making certain changes to the Model Rules, changes that resulted in Comment Eight to Rule 1.1. Comment Eight acknowledges the duty to maintain competence by, among other things, keeping abreast of changes in the practice of law, including the “benefits and risks associated with relevant technology.”

In addition, Comment Five to Rule 1.1 speaks to thoroughness and preparation. Taken together, these commentaries and the rule itself have led attorneys in the Professional Liability Department of a major lawyer’s professional liability insurance carrier to suggest that using social media ethically and effectively is part of the duty to provide clients with competent representation in today’s world. Attorneys, they say, are obligated to understand technology, including social media, and use it when it can help a client’s representation. Imagine, for instance, defending a personal injury or workers’ compensation claim and failing to discover the plaintiff/claimant’s social media posts that directly contradict the claimed injury.

Rule 1.3 Diligence

The text of Rule 1.3 is even shorter than 1.1. It says, in full, “A lawyer shall act with reasonable diligence and promptness in representing a client.” As Comment One to the rule states, a lawyer should “take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor.” The commentary charges lawyers to “act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.” It isn’t much of a stretch to suggest that using social media as a discovery and investigatory tool might often be necessary to vindicate a client’s position in litigation.

Contact Millennium Intelligence Agency for Social Media Searches to Boost Your Civil Litigation

Whether you are on the bleeding edge of technology or still use a flip phone, social media is an integral part of modern life, and knowing how to use it lawfully and ethically in pursuit of your claim or defense is part and parcel of providing diligent, competent representation to your client. For social media search history and other investigatory tools to assist with your client or case evaluation, discovery, trial preparation, or other critical aspects of civil litigation, call Millennium Intelligence Agency in Los Angeles at 213-986-9888 or contact us online. We serve clients throughout California and conduct investigations worldwide to meet your needs.

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