Law Times

Law Times • December 14, 2015 Page 9 www.lawtimesnews.com Criminal lawyers need to be online sleuths Proliferation of social media makes investigating cases a challenge BY SHANNON KARI For Law Times awyers who are confident they are up to speed on social media sites such as Facebook, Twitter, Linke- dIn, 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 tak- ing place that might be of use in a criminal court proceeding. Kik Messenger and WhatsApp are two more recent texting ap- plications 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 automati- cally deleted from the cyber world. New online communication tools are cropping up regularly at an al- most overwhelming pace. e question for defence law- yers in this time of rapidly chang- ing 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 infor- mation online about potential wit- nesses or a complainant is essential. "e way I look at it is that the more knowledge and informa- tion that you have can only be an advantage for your client," says Weisberg. Something as basic as a Google search is not sufficient, says de- fence lawyer Daniel Brown. "We live in a culture where people share things about them- selves you would never expect them to share," he notes. Understanding how to access that information can be as im- portant 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 On- tario have not kept pace with the changes in technology. In the United States, for ex- ample, the model rules of pro- fessional conduct issued by the American Bar Association refer to the ability to conduct searches of publicly accessible informa- tion as an obligation for a lawyer. e 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 informa- tion from that person's account. While the Law Society of Up- per Canada's professional con- duct rules do not address this scenario explicitly, Brown be- lieves setting up a fake account would be improper. "at is the bright line. We are not allowed to encourage dishonesty to ob- tain evidence," says Brown. However, both Brown and Weisberg say if a client or a friend of the client has access to a Face- book page of interest and is will- ing to share that information without any attempt at dishon- esty, this should be permissible. e same restrictions apply to private investigators retained by lawyers or law firms to conduct these searches, says Brian King, president and CEO of King Inter- national 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 for- mer 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 stan- dards and complying with all rel- evant privacy statutes is essential. e 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 me- dia sites and accessible databases can also be a significant help in tracking down witnesses, when the information has not been pro- vided 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 rel- evant information, says Weisberg. "e primary source [initially] is going to be your client," he says. at is the first step in determining which social media sites to search. While it may be more likely that these searches are impor- tant in cases involving younger people, it should still be a con- sideration in any case, says Weis- berg. He says he has come across publicly accessible online conver- sations about the actual incident that led to a criminal charge, as well as information about the background of witnesses that may help determine what ques- tions not to ask. e amount of detail avail- able 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 neigh- bourhood only to have residents slam their doors and refuse to talk to him. LT 'The more knowledge and infor- mation that you have can only be an advantage for your client,' says Adam Weisberg. 'We live in a culture where people share things about themselves you would never expect them to share,' says Daniel Brown. 'Once you start using ruses, you are stepping over the line," warns Brian King. FOCUS ON Criminal Law L Essential Tools for Family Law Professionals For more information, visit www.divorcemate.com 1.800.653.0925 x407 | sales@divorcemate.com NOW AVAILABLE! ADD FREEDOM & FLEXIBILITY TO YOUR PRACTICE DM Tools Cloud Work anywhere, anytime, on any device. For child and spousal support calculations. Available for PC, Mac, tablets and smartphones. Untitled-1 1 2015-11-04 9:02 AM

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