Legal Ethics and Facebook

The Philadelphia Bar Association's Professional Guidance Committee recently issued an opinion concerning a lawyer's proposed investigation of a witness's Facebook page.  The lawyer wanted to ask a third person -- someone whom the witness would not recognize -- to send a "friend" request to the witness.  The lawyer believed that the witness generally granted these requests and that the third person would be able to uncover information that could be used to impeach the witness at trial.  (The information could only be read by the witness's Facebook friends.) 

The Committee, citing Rules 5.3, 8.4, and 4.1, said that the lawyer could not engage in such an investigation.  That seems like the right answer to me.  Anyone disagree?

Thanks to the ABA/BNA's Lawyers' Manual on Professional Conduct for the lead. (For those of you who do not subscribe to the Lawyers' Manual, I highly recommend it.  It has great material on current events relating to legal ethics as well proprietary guides on legal ethics that I have often found to be quite valuable.)

Comments

[Monroe Freedman]

Assume that the lawyer correctly believed that the Facebook entry would turn up impeachable material that would be useful on cross-examination. (Apparently, people are known to put some seriously embarrassing stuff in these entries.) If the lawyer proved to be right, and the question were otherwise admissible, it's very likely that a court would allow the question based on the Facebook entry.

On that assumption, I think the lawyer would be entirely justified in pursuing the information as he did. See "In Praise of Overzealous Representation - Lying to Judges, Deceiving Third Parties, and Other Ethical Conduct, 34 Hofstra L. Rev. 771, 780-781 (2006).

In a case in which I was suing a newspaper for libel, I had my secretary request a copy, in her name, of the back issue of the paper. I wanted the copy to be able to establish that the newspaper was continuing to publish the libel even after my demand that they cease publishing it, and after my filing of the Complaint. They sent the paper to her. The fact of their republication proved useful in negotiating a settlement. Did I act unethically?

[Andrew Perlman]

Monroe,

In my mind, there is a difference between a "tester" and the kind of conduct described in the Philadelphia opinion. In your case, I would categorize your behavior as ethical "testing" to see whether illegal or impermissible conduct is occurring. I think there is a strong public policy reason to support that kind of lawyer behavior.

In contrast, I think the Facebook scenario involves using false pretenses to get at information that would have otherwise have been private and that does not reveal any illicit or impermissible behavior.

This distinction between ethical testing and unethical conduct may be difficult to draw in some cases, but I think it is a line worth drawing. And if it is, the Facebook example and your scenario are conceptually different.

[Monroe Freedman]

If lines are to be drawn, I would not put Facebook information in the "private" category.

Do you disapprove of law firms that require job applicants to provide their Facebook and MySpace entries?

[Andrew Perlman]

I would categorize some Facebook information -- information that can only be viewed if you "friend" someone -- as quasi private. It's not available to the whole world, and it wasn't meant to be. The point is that the person is trying to keep the information from being publicly available, and the lawyer wanted to use a deceptive tactic to get around the attempt for some privacy.

The issue of what a law firm can ask to see seems to be conceptually different. An employer can ask for a lot of things (e.g., drug tests), so asking to see Facebook entries doesn't seem particularly onerous. And if the lawyer doesn't want to reveal the entries, the lawyer can decide to go work elsewhere. In the investigation example, there is deceit involved, making it quite different in my view.

[David McGowan]

I propose a compromise verdict. Prof. Freedman did not deceive the newspaper, which presumably did not care about the particular identity of people asking for copies, and thus did not act unethically. Deceit would be present in the Facebook case, and would be material if the witness cared at all who "friended" them (ugly phrase).

I would amend your point a bit, Andy, in that I am not aware of any restriction on one friend allowing a third party to see another friend's page. The privacy point thus seems much weaker than the deceit claim; if the lawyer found an existing friend willing to let the lawyer look at the relevant page, the case for discipline would be harder to make.
DM

[Andrew Perlman]

David,

I agree with you. I'd be much less concerned if the lawyer viewed the Facebook information through one of the witness's friends, assuming the lawyer did not use misinformation to get the witness's friend's cooperation.

[Monroe Freedman]

At least Andy and I agree that there are situations in which a lawyer can ethically disregard MR 8.4(c) (conduct involving dishonesty...) and MR 4.1(a) (making a materially false statement of fact to another person on behalf of a client). Also, that the line may be difficult to draw, which I take to mean that reasonable, ethical lawyers can disagree about where to draw the line on when to lie. (Note that I put significant weight on whether a court would admit the information in evidence.) Nevertheless, there are no stated exceptions to those salutary rules.

I wonder whether everyone agrees with Andy and me regarding this overzealous conduct. ("Overzealous" meaning actions expressly forbidden by the Model Rules.)

[Andrew Perlman]

Monroe,

Interestingly, the Philadelphia opinion references an Oregon provision that states as follows:
“(a) It is professional misconduct for a lawyer to: . . . (3) engage in conduct involving dishonesty, fraud, deceit or misrepresentation that reflects adversely on the lawyer’s fitness to practice law."

It appears that the last phrase was added to make clear that some communications that are technically misleading might nevertheless be ethically permissible. I like the concept, even though it might be difficult to apply in practice. At the very least, it gives formal ethical cover for what I think should be permissible forms of investigation (such as "testers" and the situation that you describe).

[Doug Cornelius]

Although imperfect, I liked the analogy to a videographer:

"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."

Facebook and MySpace are semi-private, so the user control access to the information.

I found the fatal flaw to be that the attorney requesting the opinion did not request access to the facebook of myspace profile. He or she assumed that the witness would deny access. That assumption degrades the attorney's argument and paints the information as being private.

[Leora Maccabee]

Fascinating opinion by the Philadelphia Bar Association Professional Guidance Committee, and I think they're right (for what that's worth). However, lawyers do not need to become a friend of a potential witness in order to research that person's background online.

Until a greater percentage of people who use Facebook start tweaking their privacy settings to restrict what they post to their friends, much of what a user makes available on the site will be available to people in their "network." Facebook estimates that only 20% of people on the site have tailored their privacy settings for personal and professional use.

So join Facebook, and join the networks that apply to you (your city is usually the most common one). If you and the person you want to research are in the same network, this can open up a lot of new information. Please note - it would be legally unethical and thus likely prohibited by the Bar Association in your state to join a network that was not your own in order to conenct more directly with a potential witness or subject of investigation.

Once you join Facebook, read my article, "Professional Facebook privacy settings in under 10 minutes," to learn how to configure your privacy settings. http://bit.ly/WJjck

Follow me on Twitter @Leoramaccabee or find me on LinkedIn at www.LinkedIn.com/in/Leoramaccabee

[Kim Skinner]

I am in college trying to be a paralegal and in class we read this opinion. As I was reading it immediatly struck me as being unethical and just plain fraud. Why do you have to sneak around and try to trap this 18 year old girl who is a witness... not a suspect to a murder. The lawyers planned to use trickery and deciet* to get the information they could have asked for. A good lawyer could find a different way to ubtain the information and facts they need.

[john steele]

Kim,

Thanks for posting a comment. As you may have learned in your classes (because it can apply to paralegals as well), a lawyer's use of tricks, traps, snares, especially when accompanied with deceit, can violate the ethics rules. Interestingly, some courts have OK'd the use of similar tricks when lawyers try to enforce civil rights statutes by, for example, sending fake couples to rental complexes to see if the managers are discriminating unlawfully.

[Fred]

Would it be legal if he used an investigator to try to get to the Facebook page the way he tried?

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