Evidence From Internet/social Media in Criminal Cases

Once you start affirmatively creating content and inviting a discussion. The risk profile goes way up. And you need to be sure that what you don’t do is initiate a communication or have a conversation with someone known to be represented. And I should point out although it is a bit wage in the rules, my own view is the rules prohibits in the modal rules that’s just ambiguous in Texas rules. The rules out right prohibit you from having the communication even if the other party starts it.

Once you figure out that that’s who you are talking to, you are supposed to terminate that conversation unless you have consent of the lawyer even though that you’re not the one that started it. And I will acknowledge the rules are not as clear under Texas as they are under model but when you read the case law it’s pretty plain that’s what they prohibit.

So reaching on the conclusions on that front, that do tread cautiously. Beyond that, the rule implies even though the representative person—oh there is the model rule on that point. I’m going to keep moving pass that and dealing on the behalf of the client with the person who is not represented by the council, lawyer should not state or imply that the lawyer is desensitize when the lawyer knows and reasonably should know the end representative person misunderstands lawyers role, though he has to clear that up.

This can happen a lot when you start doing self-help investigation on the internet. You start making posts, the people that respond like to that last post I talked about. O yeah I know all about that and something like that happened to me, here is my problem, in sharing my problem, I may think at this point you represent me. That now you represent me and I have created at least one very uncomfortable moment for a plaintiff’s lawyer during a deposition where the spouse of the employee, who was not his client said “no I can’t tell you that because that would get into an attorney client communication between me and my lawyer.” And pointed to the lawyer who looked at him and I looked at the council with a grin. And said “so on the record, do you represent him?” We need to take a break, they went and had a talk for about 30 minutes, came back in, resumed the deposition, this firm now represents so and so. Okay let’s move along.

That’s not when you want to find out you have been representing someone for the last 12 months is during their deposition that is not the time to discover you have been laboring under the obligations of the attorney client privilege, if there is any doubt, clear it out.
Now I’m going to shift of the ethics rules to at least touch on some statutory rules and then I’m going to move directly to formal discovery. Stored communications act fact is the federal law that gets the closest to regulating what we would consider privacy in this country when it comes to electronic content.

Very briefly what is it says is if any messages in electronic storage which every email you’ve ever read in the electronic storage when you read it. That’s how you read it. It gets transmitted busted into a thousand parts, come backs on the other end reassembled, drop downed into the storage, you download it and then you read it but while you are reading it is in the electronic storage, I don’t get to look at that unless I have the consent of the person either who owns all that the equipment’s and service which usually in my instance is a company. But not of it is an individual or to the consent and authorization of someone who was authorized to receive it by the person who has sent it.