As users constantly update their Facebook and other social networking profiles, they may be unwittingly doing something else as well: creating a cache of evidence for a future adversary to use against them in discovery and at trial. Trial courts have increasingly allowed parties to discover the private portions of social networking sites when doing so would likely lead to the disclosure of admissible evidence.1 In the common scenario, a party observes information on the public portion of their adversary's profiles that tends to undercut that adversary's claims—such as pictures of a plaintiff skiing after claiming to have devastating injuries—and present such information to the court as the "factual predicate" that establishes the potential relevance of the private profile.2 While most courts will not allow a party to simply conduct a "fishing expedition" into their adversary's private digital lives, nor will they declare such information categorically undiscoverable.3
Yet the abundance of information stored on an adversary's private social network profile may unfortunately also subject a party's attorney to a dangerous temptation. Often, a user's private social networking data is available to any person with whom that user is connected on that social network, while only a limited amount of information is available to the public at large. Networking sites' privacy settings allow the individual user to modify what is and what is not available to different categories of viewers. The crafty lawyer, then, needs only connect to their client's adversary via such social networking site—the process referred to as "friending" on Facebook. If the unwary adversary accepts the lawyer's "friend" request, the lawyer will thus be privy to a range of photos, status updates and more, that were once private but, upon successful friending, are now wholly accessible. Such conduct, however, may likely be unethical.
As the New Jersey Law Journal recently reported, two New Jersey lawyers have been charged with ethics rule violations for allegedly directing a member of the firm's non-lawyer staff to "friend" their client's adversary without disclosing that staff-person's affiliation with those lawyers.4 The law firm's paralegal was tasked to perform social media research concerning a medical malpractice claimant, and first scanned the publicly available material on the plaintiff's Facebook page. According the complaint, she proceeded to "friend" the claimant, which invitation was accepted, leading to access to another cache of photos, conversations and a video of the plaintiff wrestling with his brother. The lawyers contest the alleged facts, but if such facts are proven, the informal discovery may very well result in discipline.
There is a limited but growing number of precedents on this relatively cutting-edge ethical issue.5 Taken together, these authorities suggest that such conduct is a violation of the following Model Rules of Professional Conduct.
Rule 8.4 – Misconduct.6 Friending an adversary, or instructing a subordinate to do so, would likely violate this rule where the purpose of such a request is not clearly disclosed. Specifically, such a "friend" request made by a subordinate, such as a paralegal, at the direction of the lawyer would be dishonest and deceitful to the extent it "omits a highly material fact, namely, that the third party who asks to be allowed access to the [adversary'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."7 Along these lines, ethics opinions note that an attorney would be free to identify him or herself in tandem with the "friend" request, but presumably would not do so because the lawyer "is not sure that [the adversary] will allow access and wants to adopt an approach that will deal with her possible refusal by deceiving her from the outset."8
Rule 4.1 – Truthfulness in Statements to Others.9 For the same reasons that such conduct would likely violate Rule 8.4, such conduct would likely be deemed to constitute a false statement of material fact to a third party in violation of Rule 4.1.10
Rule 4.2 – Communication With Person Represented By Counsel.11 Friending an adversary who is known to be represented by counsel would likely violate Rule 4.2 as well. Such a "friend" request has been held to constitute "at least an indirect ex parte communication with a represented party" for purposes of the rule.12 Furthermore, such a communication has been deemed to fulfill the requirement that such communication be "about the subject of the representation" in order to violate the rule. Specifically, such a "friend" request is essentially a request for information about the represented party, and "[i]f the communication to the represented party is motivated by the quest for information about the subject of the representation, the communication with the represented party is about the subject matter of that representation."13
In the end, bar ethics committees seem to be well aware that lawyers may employ formal discovery mechanisms where appropriate to obtain the relevant contents of their adversary's private social networking profiles. Outside of these mechanisms, a lawyer would be well advised to refrain from sending "friend" requests "to someone involved in the matter for which he has been retained without disclosing his affiliation and the purpose for the request."14
Footnotes
1. See, e.g., Romano v. Steelchase, 30 Misc.3d 426, 430 (N.Y. Sup. Ct. 2010); Tompkins v. Detroit Metropolitan Airport, 278 F.R.D. 387, 388 (E.D. Mich. 2012.
2. McCann v. Harleysville Ins. Co. of New York, 78 A.D.3d 1524, 1525 (N.Y. App. Div. 2010).
3. Id.
4. Mary Pat Gallagher, Hostile Use of 'Friend' Request Puts Lawyers in Ethics Trouble, New Jersey Law Journal (Aug. 20, 2012).
5. See, e.g., Philadelphia Bar Association's Professional Guidance Committee, Opinion 2009-02; New York City Bar Association, Opinion 2010-02; San Diego County Bar Legal Ethics Committee, Opinion 2011-2.
6. "It is professional misconduct for a lawyer to . . . (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation . . . ."
7. Philadelphia Bar Association's Professional Guidance Committee, Opinion 2009-02 .
8. Id.
9. "In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person . . . ."
10. Philadelphia Bar Association's Professional Guidance Committee, Opinion 2009-02 (so finding).
11. "In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order."
12. San Diego County Bar Legal Ethics Committee, Opinion 2011-2.
13. Id.
14. San Diego County Bar Legal Ethics Committee, Opinion 2011-2.
Originally published on CyberInquirer.
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