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.
Those 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 unethical conduct?
Pretexting is the use of impersonation or fraud to trick another person into releasing personal information.
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.
Ø Model Rule 4.1(a) forbids a lawyer from making false statements of material fact to a third person. Accordingly, failure to identify the true purpose of a contact with a third party constitutes a "false statement" could violate this Rule.
Ø Model Rule 4.4 prohibits attorneys from gaining evidence in a way that violates the rights of another:
(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.
Ø Model Rule 8.4(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.
Ø Model Rule 1.2 prohibits attorneys from advising their clients to engage in fraudulent behavior:
(d) 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.
Ø Model Rule 3.4 specifies that attorneys shall not perpetuate fraud:
(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.
Ø Model Rule 8.4 bars attorneys from hiring agents to engage in unethical practices:
It is professional misconduct for a lawyer to:
(a) 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;
New 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) 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
that 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. …
Rather 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-lineIn 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.
Moreover, 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.
The 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 )
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:
Even 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.
The San Diego Bar, SDCBA Legal Ethics Opinion 2011-2
The SDCBA was confronted with a question as to whether an attorney who was representing a plaintiff former employee in a wrongful discharge action could send a friend request to two high-ranking company employees who the client had identified as being dissatisfied with the employer and therefore likely to make disparaging comments about the employer on their social media page. The attorney was aware that the company was represented by counsel, and the friend request would give only the attorney’s name. The SDCBA agreed with the Philadelphia Bar opinion that such contact would not be ethical, notwithstanding the value in informal discovery on which the NYCBA focused.
“There is substantial case law authority for the proposition that the duty of an attorney under the State Bar Act not to deceive extends beyond the courtroom….Even where an attorney may overcome other ethical objections to sending a friend request, the attorney should not send such a request to someone involved in the matter for which he has been retained without disclosing his affiliation and the purpose for the request.”
The SDCBA recommended an absolute bar on “friending” both represented parties and unrepresented parties based on communication with represented parties, California Rule of Professional Conduct 2-100, and duty not to deceive, ABA Model Rule 4.1(a) and Business & Professions Code § 6068(d).
Consequences 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 (2008), 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)
Nadine R. Weiskopf, Tweets and Status Updates Meet the Courtroom: How Social Media Continues to be a Challenge for E-Discovery in 2011, http://www.lexisnexis.com/eMarketing_WCS_graphics/145833/Social-Media-and-eDiscovery-Weiskopf.pdf