I've earlier written about whether it is ethical for family lawyers to tell their clients to delete or to change their Facebook or My Space pages to avoid damaging information coming into the hands of an about-to-be ex-spouse or opposing counsel. Today I address a separate issue: May a family lawyer use deception or have a paralegal or other third party use deception to "friend" an opposing party or potential witness (a "best friend," a daycare provider, etc.) to gain access to social media pages that are "private" and available only to "friends?"
Philadelphia Opinion 2009-02 addressed a situation where a lawyer, during a deposition of a non-party adverse witness, learned that the witness had a Facebook page. The lawyer came to believe that the “personal pages” portion of the witness’ Facebook page contained information he could use to impeach her testimony if the matter went to trial. Access cannot be obtained unless a person has “friended” the Facebook page owner, who accepts the "friend" status.
The Philadelphia lawyer inquired whether he could have a third person--someone whose name the witness would not recognize--attempt to "friend" the witness. This might work since it's a status symbol to have a large number of "friends." The lawyer did not intend that the third person would misrepresent who he was, but there was definitely an intent to gain access for the lawyer that would not be disclosed.
The Philadelphia committee found this to be objectionable for several reasons. The objections had to do with a lawyer's responsibilities regarding non-lawyer assistants and the interwoven obligation to make sure assistants conform their conduct in a manner similar to the lawyer’s professional obligations, including prohibitions against a lawyer engaging in conduct involving dishonesty, fraud deceit or misrepresentation and prohibition against a lawyer making a false statement of material fact to a third person. Quite simply, a lawyer cannot violating the rules “…or to do so through the acts of another...”
" . . . the planned communication by the third party 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. The omission would purposefully conceal that fact from the witness for the purpose of inducing the witness to allow access, when she may not do so if she knew the third person was associated with the inquirer and the true purpose of the access was to obtain information for the purpose of impeaching her testimony.
… The possibility or even the certainty that the witness would permit access to her pages to a person not associated with the inquirer who provided no more identifying information than would be provided by the third person associated with the lawyer does not change the Committee’s conclusion. Even if, by allowing virtually all would-be “friends” onto her FaceBook and MySpace pages, the witness is exposing herself to risks like that in this case, excusing the deceit on that basis would be improper. Deception is deception, regardless of the victim’s wariness in her interactions on the internet and susceptibility to being deceived. The fact that access to the pages may readily be obtained by others who either are or are not deceiving the witness, and that the witness is perhaps insufficiently wary of deceit by unknown internet users, does not mean that deception at the direction of the inquirer is ethical." - Philadelphia Opinion 2009-02
A slightly different scenario was addressed by the Association of the Bar of the New York in Opinion 2010-2. The question presented to the New York City Bar Committee was whether a lawyer or his agent, without revealing his affiliation with the lawyer or the intent to make the non-party’s personal social network pages available to the lawyer, could truthfully identify himself in order to gain access. Could the agent then make the information available to the lawyer?
The New York City Bar committee noted that in the world of social media, it is possible for people to use a real name while using only a plausible profile. For example, a person could create a profile that creates the impression that he/she is a long-lost classmate, neighbor, etc. -- in other words, is an appropriate candidate for "friend" status.
According to the New York opinion, a lawyer or the lawyer’s agent may not use deception to friend the owner of the Facebook page, but can request friend status, so long as he identifies himself using his real name and profile.
…we conclude that an attorney or her agent may use her real name and profile to send a “friend request” to obtain information from an unrepresented person's social networking website without also disclosing the reasons for making the request. While there are ethical boundaries to such “friending,” in our view they are not crossed when an attorney or investigator uses only truthful information to obtain access to a website, subject to compliance with all other ethical requirements. - New York City Bar Opinion 2010-2 (2010).
The New York City Bar Committee stated that lawyers should use legitimate discovery methods such as truthfully friending unrepresented persons or the more formal discovery devices such as subpoenas, rather than using deception to gain access to such information. Thus, both the name and the profile must be truthful.
In New York State Bar Association Opinion 843 (2010), the ethics committee concluded that a lawyer may access the public portions of another party’s public Facebook or MySpace page to obtain information about that party for use in subsequent litigation because the information is publicly available in much the same way as materials are available on a publicly available website. However, the etchics committee said that the lawyer may not “friend” the other party nor direct someone else to do so. - New York State Bar Opinion 843
These ethics opinions and others from Iowa and Oregon addressing similar means of gathering evidence are discussed in Geraghty, Peter. "Facebook: State bar opinions address information gathering." Your ABA November 2010.