By Sheryl J. Seiden, Esq.[1]

Advances in technology have been shaping the practice of law for several years. Computers have increased productivity and the internet has drastically altered both the legal research and writing process and the mechanism by which many lawyers communicate with the courts, opposing counsel, and clients. The prevalence of social media in today’s society raises several important issues relative to the practice of law generally, and in the area of family law where the clients are all individuals, most of whom are frequent social media users, having a clear understanding of those issues is of particular importance. This article will present a summary of some of the issues raised by the use of social media in family law cases.

  1. Ethical implications when using social media in family law cases.

Attorneys are required to abide by the Rules of Professional Conduct, which set various limitations on communications with third parties. Specifically, RPC 4.1 requires truthfulness in statements to others:

  1. In representing a client a lawyer shall not knowingly:
    1. make a false statement of material fact or law to a third person; or
    2. fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client.
  2. The duties stated in this Rule apply even if compliance requires disclosure of information otherwise protected by RPC 1.6.[2]

RPC 4.2 establishes the guidelines for communicating with individuals who are represented by counsel:

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows, or by the exercise of reasonable diligence should know, to be represented by another lawyer in the matter, including members of an organization's litigation control group as defined by RPC 1.13, unless the lawyer has the consent of the other lawyer, or is authorized by law or court order to do so, or unless the sole purpose of the communication is to ascertain whether the person is in fact represented. Reasonable diligence shall include, but not be limited to, a specific inquiry of the person as to whether that person is represented by counsel. Nothing in this rule shall, however, preclude a lawyer from counseling or representing a member or former member of an organization's litigation control group who seeks independent legal advice.

RPC 4.3 establishes the guidelines for communicating with individuals who are not represented by counsel:

In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. If the person is a director, officer, employee, member, shareholder or other constituent of an organization concerned with the subject of the lawyer's representation but not a person defined by RPC 1.13(a), the lawyer shall also ascertain by reasonable diligence whether the person is actually represented by the organization's attorney pursuant to RPC 1.13(e) or who has a right to such representation on request, and, if the person is not so represented or entitled to representation, the lawyer shall make known to the person that insofar as the lawyer understands, the person is not being represented by the organization's attorney.

RPC 4.4 requires attorneys to respect the rights of third persons:

  1. In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.
  2. A lawyer who receives a document or electronic information and has reasonable cause to believe that the document or information was inadvertently sent shall not read the document or information or, if he or she has begun to do so, shall stop reading it. The lawyer shall (1) promptly notify the sender (2) return the document to the sender and, if in electronic form, delete it and take reasonable measures to assure that the information is inaccessible.

    A lawyer who receives a document or electronic information that contains privileged lawyer-client communications involving an adverse or third party and who has reasonable cause to believe that the document or information was wrongfully obtained shall not read the document or information or, if he or she has begun to do so, shall stop reading it. The lawyer shall (1) promptly notify the lawyer whose communications are contained in the document or information (2) return the document to the other lawyer and, if in electronic form, delete it and take reasonable measures to assure that the information is inaccessible. A lawyer who has been notified about a document containing lawyer-client communications has the obligation to preserve the document.

In order to avoid any ethical quandaries, and the potential for attorney disciplinary proceedings resulting therefrom, attorneys must abide by the limitations set forth in the Rules.

In family law cases, attorneys can often find useful information about the litigants on social media. For example, in the context of a custody dispute, an attorney may seek to find proof of parental unfitness by searching the adversary’s social media profiles. A discovery of “party” photos may give pause to one parent. Similarly, in the context of an alimony dispute, an attorney may seek to find proof of cohabitation, employability, or lack thereof, by searching on social media. It is enticing to use these photos and information in a litigation. However, it is important to conduct such research ethically.

The recent New Jersey Supreme Court case of Robertelli v. New Jersey Office of Attorney Ethics, 224 N.J. 470 (2016) highlighted the limitations on attorneys when researching a litigant online. In Robertelli, an attorney was accused of an ethical violation when a paralegal in the firm accessed an adverse litigant’s Facebook page by sending a “friend request” without revealing that she worked for the adverse law firm and was investigating him in the context of the litigation. The lesson of Robertelli is to use caution when researching litigants online, as attorneys must be careful not to cross the ethical line from research for a case into improper communication with a third party.

  1. Expectations of privacy with regard to social media and computers/electronic devices.

Expectations of privacy have changed over the years with the increasing use of social media and electronic devices. The very existence of “privacy settings” on many social media platforms highlights this issue; users are able to designate what information is shared with the public at large, and what information is restricted to those with whom they are directly connected on social media. It is reasonable to presume that an individual who posts a status on Facebook, and allows the post to be shared with the public at large, has no expectation of privacy relative to that post. It is similarly reasonable to presume that an individual who posts a status on Facebook, and restricts the individuals with whom the post is shared, has some expectation of privacy relative to that post, but the expectation is neither clearly defined nor is it absolute. An analogy can be made to leaving one’s garbage by the curb for pickup as opposed to leaving it in a waste receptacle inside or behind one’s home; once the garbage is curbside, and shared with the public at large, the expectation of privacy is gone. However, the partially private arena of restricted social media posts has yet to be fully examined by our laws.

Information stored on electronic devices is similarly subject to varying levels of the expectation of privacy based primarily on what security features are put in place by the user. The case of White v. White, 344 N.J. Super. 211 (Ch. Div. 2001) established the test to determine whether information obtained by a spouse from the family computer is admissible in a divorce proceeding. There, wife sought to use emails from husband’s email account which she had obtained from the family computer after they were automatically stored onto the family computer by husband’s email software. Husband sought to block the use of his emails, relying on the New Jersey Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A:156A, and his common law right to privacy. The Court found no violation of the Wiretap Statute as wife did not access the emails without authorization and moreover determined that her actions did not constitute an intercept of husband’s electronic communications since the email files were located in post-transmission storage. Finally, analogizing the unprotected email files on the computer to papers in an unlocked filing cabinet, the Court held that as the emails were not password protected, wife did not violate husband’s right to privacy.

The lessons of White are as follows: litigants should be advised to protect sensitive information by establishing security features on their electronic devices; litigants should be advised to use caution not to improperly access protected files on shared electronic devices; and litigants and attorneys alike should be aware of the difference between protected and unprotected files.

  1. Requesting social media posts and other electronic information in discovery.

Attorneys are cautioned not to improperly access private social media posts or seek to use password protected electronic information improperly obtained. However, simply because a social media profile is not public, or because some other electronic information is protected by a security feature, does not designate such information as entirely off-limits for litigation. Nothing prohibits a party from requesting such information in discovery via a Notice to Produce, Interrogatories, and request for documents at a deposition or subpoena. The demand for access to various forms of private electronic communications and information shared on an adversary’s private social media profile has become commonplace in family law cases, and to date, there is no clear guidance from the courts as to the permissibility of such a discovery request. As such, attorneys must grapple with these discovery requests on a case by case basis.

In order to address this emerging area of discovery, we turn to the Court Rules. The broad scope of discovery is defined in R. 4:10-2(a) as follows:

Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, electronically stored information, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence; nor is it ground for objection that the examining party has knowledge of the matters as to which discovery is sought.

The similarly broad scope of demands for the production of documents and electronically stored information is defined in R. 4:18-1(a) as follows:

Any party may serve on any other party a request (1) to produce and permit the party making the request, or someone acting on behalf of that party, to inspect, copy, test, or sample any designated documents (including writings, drawings, graphs, charts, photographs, sound recordings, images, electronically stored information, and any other data or data compilations stored in any medium from which information can be obtained and translated, if necessary, by the respondent into reasonably usable form), or to inspect, copy, test, or sample any designated tangible things that constitute or contain matters within the scope of R. 4:10-2 and that are in the possession, custody or control of the party on whom the request is served.

While the Court Rules generally allow for far-reaching discovery demands, they also provide a procedure for litigants to seek limitations on discovery, in the form of a protective order. R. 4:10-3 provides: “On motion by a party or by the person from whom discovery is sought, the court, for good cause shown or by stipulation of the parties, may make any order that justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” The lessons of social media discovery are still unfolding.

  1. How to use information downloaded from social media and other electronic communications in Court.

Presuming a litigant has properly obtained such information, through discovery or direct access, the next step is getting the information formally admitted into evidence. The standard for admissibility as set forth in the Rules of Evidence is also based on relevance. N.J.R.E. 401 defines relevant evidence broadly as “evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action.” N.J.R.E. 402 provides that all relevant evidence is generally admissible. However, N.J.R.E. 403 provides limitations on admissibility as “relevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence.” The Rules of Evidence also provide further limitations on the admissibility of character and hearsay evidence.

In order to formally admit a piece of evidence in a plenary hearing, the attorney must authenticate and identify the evidence through witness testimony. N.J.R.E. 901 provides that this requirement is satisfied by offering testimony “sufficient to support a finding that the matter is what its proponent claims.” Thereafter, the attorney will offer the document or other item into evidence and the adverse party will be provided an opportunity to state any objections to its admission. This is the process whereby evidence, even relevant evidence, can be subject to exclusion.

In family law cases, documentary evidence is also frequently submitted to the court by way of exhibits attached to certifications in support of pre- and post-judgment motions. When offering such evidence with a motion, it is important to ensure the certification properly identifies and authenticates the document and important to ensure that information attached was properly obtained. The lesson again relates back to relevance: documentary evidence should only be offered where it proves or disproves a fact of consequence to the determination of the issues in the case.

  1. Limitations on the use of information from wifi/tracking devices in Court.

Many social media platforms permit users to share their location as part of a post, and various other forms of electronic communication have similar location tracking features. If this information has been shared publicly, it is most certainly not subject to any expectation of privacy. However, there are important, fact-sensitive limitations on the permissibility of tracking of another’s physical location.

The Appellate Division case of Villanova v. Innovative Investigations, Inc., 420 N.J. Super. 353 (2011) held that wife’s installation of a global positioning system (GPS) tracking device in a family vehicle did not constitute an invasion of husband’s privacy as the device only recorded husband’s location on public roads. However, in the context of domestic violence actions, the use of surveillance equipment has often formed the basis for a finding of domestic violence. SeeH.E.S. v. J.C.S., 175 N.J. 309 (2003) (surveillance by a spouse in the marital home may constitute stalking); L.A.V.H. v. R.J.V.H., 2011 N.J. Super. Unpub. LEXIS 2162 (covert surveillance by an ex-husband of ex-wife’s new boyfriend using a tracking device on his vehicle constituted stalking); A.T. v. R.T., 2012 N.J. Super. Unpub. LEXIS 189 (clandestine tracking of plaintiff’s whereabouts using a GPS device constituted stalking); J.M. v. D.M., 2017 N.J. Super. Unpub. LEXIS 920 (defendant’s admission to following plaintiff using a device defendant claimed to be pre-installed in plaintiff’s vehicle supported a finding of stalking); and K.W. v. J.W., 2017 N.J. Super. Unpub. LEXIS 1618 (implanting listening devices in the plaintiff’s car and home constituted acts of domestic violence). The lesson of this line of cases is clear: litigants must proceed with caution when using surveillance equipment to gather evidence so as not to cross the line from evidence gathering into domestic violence.

Conclusion

In conclusion, the practice of law will continue to evolve with ongoing advances in technology. It is imperative that attorneys and their staff remain current on both the technological advances and the related legal issues that arise therefrom.

[1] Sheryl J. Seiden, Esq. is founding partner of Seiden Family Law, LLC in Cranford. Sheryl is an officer of the Family Law Section of the NJSBA and a fellow of the American Academy of Matrimonial Lawyers – NJ chapter. She is a frequent lecturer for ICLE on many hot topics affecting the practice of family law. Sheryl would like to thank Shari Lee Genser, Esq., for her assistance in preparing this article. Shari joined Seiden Family Law in January 2017. She previously was an associate at a boutique family law firm in Morristown, New Jersey and prior to that she was a Staff Attorney at Essex-Newark Legal Services. Shari clerked for the Honorable Nancy Sivilli, of the Superior Court of New Jersey, Chancery Division, Family Part, County of Essex.

[2] RPC 1.6 provides guidelines for the confidentiality of information:

  1. A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b), (c), and (d).
  2. A lawyer shall reveal such information to the proper authorities, as soon as, and to the extent the lawyer reasonably believes necessary, to prevent the client or another person:
    1. from committing a criminal, illegal or fraudulent act that the lawyer reasonably believes is likely to result in death or substantial bodily harm or substantial injury to the financial interest or property of another;
    2. from committing a criminal, illegal or fraudulent act that the lawyer reasonably believes is likely to perpetrate a fraud upon a tribunal.
  3. If a lawyer reveals information pursuant to RPC 1.6(b), the lawyer also may reveal the information to the person threatened to the extent the lawyer reasonably believes is necessary to protect that person from death, substantial bodily harm, substantial financial injury, or substantial property loss.
  4. A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:
    1. to rectify the consequences of a client's criminal, illegal or fraudulent act in the furtherance of which the lawyer's services had been used;
    2. to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, or to establish a defense to a criminal charge, civil claim or disciplinary complaint against the lawyer based upon the conduct in which the client was involved; or
    3. to prevent the client from causing death or substantial bodily harm to himself or herself;
    4. to comply with other law; or
    5. to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership, or resulting from the sale of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client. Any information so disclosed may be used or further disclosed only to the extent necessary to detect and resolve conflicts of interest.
  5. Reasonable belief for purposes of RPC 1.6 is the belief or conclusion of a reasonable lawyer that is based upon information that has some foundation in fact and constitutes prima facie evidence of the matters referred to in subsections (b), (c), or (d).
  6. A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.