Social media sites have opened a new avenue on which users may post personal information. Facebook, at least in theory, allows users to limit who may see that information. The ethics rules impose limits on how attorneys may obtain information that is not publicly available, particularly from opposing parties who are represented by counsel. And that has implications for using social media sites to seek incriminating information.
Below are ethics opinions from four different entities that provide a sense of how the ethical contours are developing for attorneys who seek social media evidence.
San Diego County Bar Association Ethics Opinion 2011-2
Says that ethics rules “rules bar an attorney from making an ex-parte friend request of a represented party. An attorney’s ex parte communication to a represented party intended to elicit information about the subject matter of the representation is impermissible no matter what words are used in the communication and no matter how that communication is transmitted to the represented party.”
New York City Bar Association Formal Ethics Opinion 2010-02
Addresses the narrow question of whether a lawyer, acting either alone or through an agent such as a private investigator, may resort to trickery via the Internet to gain access to an otherwise secure social networking page and the potentially helpful information it holds. In particular, focused on an attorney’s direct or indirect use of affirmatively “deceptive” behavior to “friend” potential witnesses.
Concludes: “A lawyer may not attempt to gain access to a social networking website under false pretenses, either directly or through an agent.”
Key observations from the opinion:
- “it may be easier to deceive an individual in the virtual world than in the real world.”
- “it does not matter whether the lawyer employs an agent, such as an investigator, to engage in the ruse.”
New York State Bar Ethics Opinion #843
Addresses a “lawyer’s access to public pages of another party’s social networking site for the purpose of gathering information for client in pending litigation.” Cites rules 4.1; 4.2; 4.3; 5.3(b)(1); 8.4(c).
Concludes: “A lawyer who represents a client in a pending litigation, and who has access to the Facebook or MySpace network used by another party in litigation, may access and review the public social network pages of that party to search for potential impeachment material. As long as the lawyer does not “friend” the other party or direct a third person to do so, accessing the social network pages of the party will not violate Rule 8.4 (prohibiting deceptive or misleading conduct), Rule 4.1 (prohibiting false statements of fact or law), or Rule 5.3(b)(1) (imposing responsibility on lawyers for unethical conduct by nonlawyers acting at their direction).”
Key observations from the opinion:
- Cites Philadelphia opinion and distinguishes facts. (NYC case involved party’s info; Philadelphia was witness info)
- Says “Facebook and MySpace are examples of external social networks that are available to all web users.” (Not exactly true for Facebook)
Philadelphia Bar Association Ethics Opinion 2009-02
The first opinion on ethics of accessing social media. Attorney wanted to have his paralegal “friend” an adverse witness, whom he learned in deposition was using Facebook and MySpace. Question was: could the attorney have his paralegal do the friending so that witness wouldn’t realize that the deposing attorney was trying to get incriminating evidence. Bar Association said, NO. Attorney can’t engage in deception directly, or through a proxy.