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Bar Finds Lawyer Can't Use Third Party to 'Friend' Witness Online

As I discussed here last month, information posted on a Facebook profile -- whether public or private -- is potentially discoverable. But as Doug Cornelius writes at Social Media Today, that doesn't mean lawyers can attempt to access those Facebook pages through deception.

Cornelius reports on a recent opinion by the Philadelphia Bar Association's Professional Guidance Committee that addressed an ethics inquiry by an attorney regarding the propriety of asking a third party to "friend" a witness to access information in her Facebook or MySpace account. According to the inquiry, the lawyer had learned during the course of a deposition that the witness maintained a Facebook or MySpace account. The lawyer sought guidance on whether he could ask a third party to send a "friend" invitation to the witness, which, if granted, would allow the third party to access the Facebook information and transmit the information back to the lawyer.

As a general matter, lawyers cannot use third parties to circumvent ethics rules. So what made this lawyer believe he could do this? As it happens, the lawyer offered a novel argument. He argued that asking a third party to friend a witness is no different from the practice of videotaping the public conduct of plaintiff in a personal injury case. The Committee, however, didn't buy it:

In the video situation, the videographer simply follows the subject and films him as he presents himself to the public. The videographer does not have to ask to enter a private area to make the video. If he did, then similar issues would be confronted, as for example, if the videographer took a hidden camera and gained access to the inside of a house to make a video by presenting himself as a utility worker.

Ultimately, the Committee found that the lawyer's efforts to use a third party to friend a witness violated various ethics rules prohibiting fraud and deception because the effort to friend the witness would be done with deceptive intent.

Over at Deliberations, Anne Reed poses a question as a general rule of thumb for evaluating the propriety of jury conduct online: "If the juror had done the same thing off line, what would we do?" Lawyers should apply the same rule for their own use of social media. If a lawyer asked a third party to befriend a witness under false circumstances in person, the conduct would be deemed unethical. As the Philadelphia Bar confirms, the result is no different if the communication takes place on Facebook.

Posted by Carolyn Elefant on May 5, 2009 at 03:48 PM | Permalink | Comments (2)


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