More and more attorneys and judges are using social media, either for its intended purpose of social networking (and, for the lesser intended purpose of marketing) or for its unintended purpose of investigative research.

There has been much discussion online amongst legal experts about what sorts of investigative activity is ethical for lawyers to engage in. Most Bar Associations however, have not yet addressed this topic. Two exceptions are the Philadelphia Bar and the New York State Bar. They addressed the following specific questions:

Discovery/Evidentiary Issues: Ethics Opinions

Is it ethical for an attorney to ask a non-lawyer assistant to "friend" an unrepresented witness even if the non-lawyer uses her real name but without also disclosing the reasons for making the request?

An attorney at one our seminars recently pondered how she could access a witness's private (open only to "friends") profile on a social networking site to use it as evidence. The Philadelphia Bar Association's Professional Guidance Committee Opinion 2009-02 (March 2009) available at http://tinyurl.com/cgwgwr, addresses a similar question from a lawyer who wished to gain access to an unrepresented witness' private profile to use the profile information against the witness during litigation.

The inquiring attorney asked if he would be in breach of professional conduct rules if he asked a non-lawyer assistant to "friend" the witness, without the assistant explaining the reason for the request or disclosing that the assistant worked for the attorney.

The opinion concluded that this conduct would violate several rules of professional conduct:

• First, the "proposed course of conduct contemplated by the inquirer [the lawyer] would violate Rule 8.4(c) because the planned communication by the third party [the assistant] with the witness is deceptive. It omits a highly material fact —namely that the third party who asks to be allowed access to the witness's pages is doing so only because he or she is intent on obtaining information and sharing it with a lawyer for use in a lawsuit to impeach the testimony of the witness."

• Second, even though the attorney is not making the actual "friend" request, because of Rule 5.3 (Responsibilities Regarding Nonlawyer Assistants), the attorney is in violation of Rule 8.4(c) because he is responsible for the "violative conduct" of the person he supervises.

• Third, the proposed conduct violates Rule 4.1 because it, "constitutes the making of a false statement of material fact to the witness."

• Fourth, because "the violative conduct would be done through the acts of another third party, this would also be a violation of Rule 8.4(a)."

Would any of the above ethical dilemmas arise if an attorney was trying to access a public profile to use the information contained in the profile as evidence? We’ve always said, “Probably not” when this question has been posed to us. After all, if the profile is open to the public, there would be no actual contact or exchange with the profile's owner.

Could a lawyer representing a client in pending litigation access the public pages of another party's social networking website for the purpose of obtaining possible impeachment material for use in the litigation?

A recent New York State Bar Association Committee on Professional Ethics validated our above supposition in Opinion 843 (September 10, 2010) available at http://linkon.in/nyethicop843. There, the Committee said, “A lawyer representing a client in pending litigation may access the public [emphasis added] pages of another party's [emphasis added] social networking website (such as Facebook or MySpace) for the purpose of obtaining possible impeachment material for use in the litigation.” Further, the Committee explained:

New York’s Rule 8.4 would not be implicated because the lawyer is not engaging in deception by accessing a public website that is available to anyone in the network, provided that the lawyer does not employ deception in any other way (including, for example, employing deception to become a member of the network). Obtaining information about a party available in the Facebook or MySpace profile is similar to obtaining information that is available in publicly accessible online or print media, or through a subscription research service such as Nexis or Factiva, and that is plainly permitted.¹ Accordingly, we conclude that the lawyer may ethically view and access the Facebook and MySpace profiles of a party other than the lawyer’s client in litigation as long as the party’s profile is available to all members in the network and the lawyer neither “friends” the other party nor directs someone else to do so.

While these opinions are specific to the jurisdictions from which they were decided, the precedents set in them may offer guidance to Bar Associations around the country on the topic. It’s also useful to note that not all Bar Associations are in agreement. See information on the Association of the Bar of the City of New York’s position on a similar question.

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