The New York City and State Bars,30 the Philadelphia Bar31 and the San Diego County Bar32 Associations have provided a number of relevant Discovery of Social Media guidance opinions surrounding issues related to performing research using social media.
First, it is perfectly acceptable to search and access social media sites that are freely accessible. The New York Guidance Opinion states, “[an attorney] may access the public pages of another party’s social networking website (such as Facebook or MySpace) for the purpose of obtaining possible impeachment material for use in the litigation.”33 On the other hand, the 2009 Philadelphia Opinion makes it clear that an effort to obtain access to the account through deceptive or illegal means is unacceptable.34
Friending a Witness
In the 2009 Philadelphia opinion, the attorney asked whether it would be acceptable for the attorney to have a third party request a witness to “friend”35 the opposing client. The third party did not intend to lie, but neither did he intend to reveal his relationship to the attorney.
The opinion noted that such behavior would violate several rules of ethical conduct. The lawyer would be “procuring conduct [and be] responsible for [that] conduct” in violation of Pennsylvania Rule 5.3 (Responsibilities Regarding Nonlawyer Assistants.) Also, the lawyer would be violating Rule 8.4 (Misconduct) by engaging in “deceptive” conduct. In addition, the attorney would be encouraging a third party to violate Rule 4.1 (Truthfulness in Statements to Others) by having the third party “omit a highly material fact.”36 Based upon the Philadelphia Bar Association’s 2009 Guidance Opinion, it is very clear that having a third party (or the attorney herself) friend a witness without revealing her relationship to the case would be highly inappropriate.
A real world example of what can happen when an attorney lies to potential witnesses comes from a lawyer who is learning a hard lesson in negative publicity. This attorney, a prosecutor in Ohio, posed as the ex-girlfriend of a murder defendant on Facebook. The attorney’s stated goal was to convince the two female alibi witnesses to change their stories. In the end, the prosecutor was fired and has seen numerous stories written about this conduct online.37 The lesson from this case is that lawyers may not lie when communicating with anyone through social media, including witnesses.
Communicating with a Represented Party
The San Diego County Bar Association took on the issue of communicating with a represented party. In short, as is the case offline, it is inappropriate to communicate with a represented party online. In the instant case, the attorney did not identify himself as the attorney, which made the effort to communicate all the more grievous. An additional issue, of concern for those involved in employee cases, includes an analysis of whether the contacted employees were represented parties.38
In 2012, the issue of friending represented parties came up in New Jersey where two attorneys are likely to face sanctions due to their paralegal friending the opposing party in a case.39 The issue came to light during a deposition when it became clear that the attorneys had access to the private areas of the plaintiff’s Facebook account. The attorneys denied responsibility because they asked the paralegal simply to perform a general search of the web. The issue with this defense is that attorneys are responsible for the behavior of their staff. The attorneys are charged with violating New Jersey Rules 4.2 (communications with represented parties,) 5.3(a), (b), and (c) (failure to supervise a nonlawyer assistant,) 8.4(c) (conduct involving dishonesty and violation of ethics rules through someone else’s actions or inducing those violations,) and 8.4(d) (conduct prejudicial to the administration of justice.) In addition, the more senior of the two attorneys is charged with RPC 5.1(b) and (c) (ethical obligation in relation to supervising another attorney.) These are all very serious charges, and regardless of the outcome, the publicity, which will spread rapidly through social media, will no doubt be very harmful to the two attorneys in question.
At this point it seems well settled that the action of friending someone or seeking to access their accounts through some form of communication is considered contact. Therefore, attorneys should never seek to friend or obtain access to the account of an opposing party through any form of communication with a represented party. If seeking to friend a witness, the attorney or individual assisting the attorney must make clear her relationship to the case.
30 New York State Bar Association Guidance Opinion 843 (2010).
31 Philadelphia Bar Association Guidance Opinion 2009-02 (2009).
32 SDCBA Ethics Opinion 2011-2 (May 24, 2011).
33 New York State Bar Association Guidance Opinion 843.
34 Philadelphia Bar Association Guidance Opinion 2009-02.
35 Friend is Facebook’s term for two people who are connected to each other on the service. Different social media providers use different terms. For example, LinkedIn uses contact and connection. Friending someone requires the affirmative action of a request on the part of the individual seeking the connection and an affirmative action on the part of the individual accepting the connection. See Facebook, “How do I add a Friend?” www.facebook.com/help/?faq=12062.
36 Philadelphia Bar Association Guidance Opinion 2009-02 (2009).
37 Martha Neil, Prosecutor fired after posing as ex-girlfriend in Facebook chat with defendant’s
alibi witnesses (June 2013). .
38 SDCBA Ethics Opinion 2011-2, May 24, 2011.
39 Eric Meyer, Ethics charges for two lawyers over Facebook friending a litigant (2012).
Find the Best Technology for Your Dollar
This post was adapted from the Law Practice Division’s publication The 2015 Solo and Small Firm Legal Technology Guide. In this book, authors John Simek, Michael Maschke and Sharon D Nelson share the most current information and recommendations on computers, servers, networking equipment, legal software, printers, security products, smartphones, the iPad, and anything else a law office will need.