Lawyers who are confident they are up to speed on social media sites such as Facebook, Twitter, LinkedIn, and maybe even Instagram may be surprised to find those sites, despite their popularity, are now just a few of the platforms where communications are taking place that might be of use in a criminal court proceeding.
Kik Messenger and WhatsApp are two more recent texting applications that are popular among young people, while sites such as Burn Note and Snapchat promise to put time limits on messages and photos before they are automatically deleted from the cyber world. New online communication tools are cropping up regularly at an almost overwhelming pace.
The question for defence lawyers in this time of rapidly changing technology is whether it is an option or an obligation to keep abreast of these tools.
Adam Weisberg, a Toronto defence lawyer, says the ability to search for publicly available information online about potential witnesses or a complainant is essential.
“The way I look at it is that the more knowledge and information that you have can only be an advantage for your client,” says Weisberg.
Something as basic as a Google search is not sufficient, says defence lawyer Daniel Brown.
“We live in a culture where people share things about themselves you would never expect them to share,” he notes.
Understanding how to access that information can be as important to a trial lawyer in some cases as knowing the relevant case law, suggests Brown.
In terms of what type of search or investigation is permitted, the rules that govern lawyers in Ontario have not kept pace with the changes in technology.
In the United States, for example, the model rules of professional conduct issued by the American Bar Association refer to the ability to conduct searches of publicly accessible information as an obligation for a lawyer. The same model rules suggest it would be improper though to set up a fake account on Facebook, for example, to try to “friend” an individual and access information from that person’s account.
While the Law Society of Upper Canada’s professional conduct rules do not address this scenario explicitly, Brown believes setting up a fake account would be improper. “That is the bright line. We are not allowed to encourage dishonesty to obtain evidence,” says Brown.
However, both Brown and Weisberg say if a client or a friend of the client has access to a Facebook page of interest and is willing to share that information without any attempt at dishonesty, this should be permissible.
The same restrictions apply to private investigators retained by lawyers or law firms to conduct these searches, says Brian King, president and CEO of King International Advisory Group.
“Once you start using ruses, you are stepping over the line,” says King, who has more than 35 years of experience in the private investigations field and is a former president of the Council of International Investigators.
Every investigation “needs to be conducted as if the case is going to trial,” says King, which means employing ethical standards and complying with all relevant privacy statutes is essential.
The advances in technology have made it easier for both lawyers and investigators to find potentially relevant information, but King says there is a skillset required to make online searches effective.
“Just surfing the Internet will get about 40 per cent of what is out there. It is about using the right search parameters that can make all the difference,” he suggests.
Online searches of social media sites and accessible databases can also be a significant help in tracking down witnesses, when the information has not been provided to the defence, says King.
Along with developing a search skill, “it also helps to learn the lingo” used in text messages and other online conversations, says Brown. “I think this is an area where younger lawyers might have a bit of an advantage.”
For clients who may not have the resources to retain an investigator, there are still ways for the lawyer to find relevant information, says Weisberg.
“The primary source [initially] is going to be your client,” he says. That is the first step in determining which social media sites to search.
While it may be more likely that these searches are important in cases involving younger people, it should still be a consideration in any case, says Weisberg. He says he has come across publicly accessible online conversations about the actual incident that led to a criminal charge, as well as information about the background of witnesses that may help determine what questions not to ask.
The amount of detail available and what people will share online still comes as a surprise to him, says Weisberg. Contrast that to a few years ago, he jokes, when he was trying to find a key witness for his client and went house to house in one neighbourhood only to have residents slam their doors and refuse to talk to him.