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You represent the
defendant in a personal injury case in which the 20-year-old plaintiff claims
that she can no longer enjoy the pleasures of life and is confined to her home.
During the course of examining plaintiff's witness in deposition, the witness
mentions communicating with the plaintiff on her Facebook account. You'd like
to see her Facebook account to determine whether any evidence exists that the
plaintiff is exaggerating her symptoms. Moreover, you'd like to investigate
whether any information exists on the witness' page to impeach her testimony.
well-versed in social media know that Facebook and MySpace allow users to
create personal "pages" on which they post information on any topic, sometimes
including highly personal information. Users may dictate who accesses their
pages by granting or denying permission to those who seek access to the
account. A user can grant access to his or her page with almost no information
about the person seeking access or can ask for detailed information about the
person seeking access before deciding whether to allow access. Where does "friending" cross the line into
Pretexting is the use of
impersonation or fraud to trick another person into releasing personal
The Model Rules of Professional
Conduct (Model Rules), Model Rules of Prof'l Conduct (2009) (http://www.abanet.org/cpr/mrpc/rpc_toc.html), do not specifically address
the use of social media by counsel to obtain discovery by pretextual means;
however, several state bar ethics opinions suggest that the following sections
are implicated with regard to contacts with adverse witnesses.
(a) 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
(c) bans conduct by
a lawyer that involves dishonesty, fraud, deceit, or misrepresentation. Thus,
unless there is an exception that permits misrepresentation for good purpose,
this Rule may also prohibit friending an adverse witness.
The prohibitions against
deceptive practices also apply a lawyer's employment of others to obtain
information through social media accounts by less-than-transparent means.
A lawyer shall not counsel a client to engage, or assist a client, in conduct
that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the
legal consequences of any proposed course of conduct with a client and may
counsel or assist a client to make a good faith effort to determine the
validity, scope, meaning or application of the law.
(b) A lawyer who represents a client in an
adjudicative proceeding and who knows that a person intends to engage, is
engaging or has engaged in criminal or fraudulent conduct related to the
proceeding shall take reasonable remedial measures, including, if necessary,
disclosure to the tribunal.
is professional misconduct for a lawyer to:
violate or attempt to violate the Rules of Professional Conduct, knowingly
assist or induce another to do so, or do so through the acts of another;
York City Bar Ethics Opinion 2010-2
The Association of the Bar of the
City of New York Committee on Professional and Judicial Ethics issued its
Formal Opinion 2010-2, Obtaining Evidence
from Social Networking Websites (available at http://www.nycbar.org/Ethics/eth2010.htm#_ftnref5 and attached hereto with
permission) addressing the issue of friending.
In addressing the question as to whether a lawyer, either directly or
through an agent, may contact an unrepresented person through a social
networking website and request permission to access her web page to obtain
information for use in litigation, the Committee concluded
an attorney or her agent may use her real name and profile to send a "friend
request" to obtain information from an unrepresented person's social networking
website without also disclosing the reasons for making the request. While there
are ethical boundaries to such "friending," in our view they are not crossed
when an attorney or investigator uses only truthful information to obtain
access to a website, subject to compliance with all other ethical requirements.
than engage in "trickery," lawyers can -- and should -- seek information
maintained on social networking sites, such as Facebook, by availing themselves
of informal discovery, such as the truthful "friending" of unrepresented
parties, or by using formal discovery devices such as subpoenas directed to
non-parties in possession of information maintained on an individual's social
networking page. Given the availability of these legitimate discovery methods,
there is and can be no justification for permitting the use of deception to
obtain the information from a witness on-line
In coming to this conclusion, the Committee relied upon N.Y. Prof’l Conduct R. 4.1, 8.4(c) (2010), which the Committee opined are violated whenever an attorney “friends” an individual under false pretenses to obtain evidence from a social networking website. Based on Rules 5.3(b)(1) and 8.4(a), the Committee determined that the prohibition applies regardless of whether the lawyer employs an agent, such as an investigator, to engage in the deception.
the Committee noted that N.Y. Prof'l Conduct R. 4.2 governed the situation
where the witness is known to be represented by counsel, in which case the
prior consent of the party's lawyer must be obtained or the conduct must be
authorized by law. In New York, the term "party" is generally interpreted
broadly to include "represented witnesses, potential witnesses and others with
an interest or right at stake, although they are not nominal parties." N.Y. State 735 (2001). Compare N.Y. State 843 (2010), concerning
whether a lawyer may view and access the Facebook or MySpace pages of a party other than his or her client in
pending litigation in order to secure information about that party for use in
the lawsuit, including impeachment material, if the lawyer does not
"friend" the party and instead relies on public pages posted by the
party that are accessible to all members in the network. While the Committee's opinion addressed
accessing the public profile pages of a party, the Committee's reasoning indicates
that the Committee would find the accessing of a witness' public profile to be
acceptable if no subterfuge were involved.
Philadelphia Bar Association Professional Guidance Committee, Opinion 2009-02
(March 2009) (available at http://www.philadelphiabar.org/WebObjects/PBAReadOnly.woa/Contents/WebServerResources/CMSResources/Opinion_2009-2.pdf and reprinted with permission)
In a fact pattern similar to the
hypothetical above, the inquirer sought guidance on whether he could employ a
third person to friend an adverse witness on Facebook and MySpace. The third person would not use a false name.
If the witness allowed access, the third person would then provide the
information posted on the pages to the inquirer, who would evaluate it for
possible use in the litigation.
Taking a more conservative
approach than New York, the Philadelphia Bar's Committee determined that doing
so would be deceptive and, thus, unethical if the third party did not also
disclose the reason for making the friend request. Relying on Pennsylvania
Rules of Professional Conduct 4.1, 5.3 and 8.4, the Committee opined that the basis
of the friend request was deceit, such that regardless of whether the witness
generally accepted all friend requests, the request would be unethical:
if, by allowing virtually all would-be "friends" onto her FaceBook and MySpace
pages, the witness is exposing herself to risks like that in this case,
excusing the deceit on that basis would be improper. Deception is deception,
regardless of the victim's wariness in her interactions on the internet and
susceptibility to being deceived. The fact that access to the pages may readily
be obtained by others who either are or are not deceiving the witness, and that
the witness is perhaps insufficiently wary of deceit by unknown internet users,
does not mean that deception at the direction of the inquirer is ethical.
N.B. As noted by the Committee
itself, this opinion is advisory only and is not binding upon the Disciplinary
Board of the Supreme Court of Pennsylvania or any other Court.
for Accessing Accounts Wrongfully
Mara E. Zazzali-Hogan and
Jennifer Marino Thibodaux, Ethics of
'Friending' Adverse Witnesses, Law Technology News (available at http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202433484729)
Steven C. Bennett, Ethics of "Pretexting" in a Cyber
World, 41 McGeorge L. Rev. 271 (2010)
Jason Boulette & Tanya
DeMent, Ethical Considerations for
Blog-Related Discovery, 5 Shidler J.L. Com. & Tech. 1
available at http://www.lctjournal.washington.edu/Vol5/a01ouletteDeMent.html (suggesting that "passive
review" of a blog is "comparable to review of an unprivileged
document voluntarily produced by [a] party").
Ken Strutin, Evidence in an Age of Self-Surveillance, N.Y. L.J., Mar. 11, 2009, http://www.law.com/jsp/nylj/PubArticleNY.jsp?id=1202428950936&slreturn=1&hbxlogin=1 ("Internet searching has
emerged as a necessity in legal investigation.").
Francis G.X. Pileggi, Electronic Discovery and Social Networking
Sites (American Inn of Courts, The Bencher-November/December 2010)
(available at http://www.innsofcourt.org/Content/Default.aspx?Id=5500)
This article is an excerpt of the
written materials from Using Facebook
and Other Social Networking Sites as Informal Discovery, a continuing legal
education course presented by the ABA Young Lawyers Division at the 2011 ABA
MidYear Meeting in Atlanta, Georgia. This portion of the course was presented
by Lisa McManus, Web 2.0 Legal Communities Manager at LexisNexis. Other
panelists included Min Cho, an associate with Holland & Knight LLP in
Orlando, Florida, and Stacie S. Winkler, an associate with Baker, Donelson,
Bearman, Caldwell & Berkowitz, PC in Memphis, Tennessee.