More Advice for Online Contact

May 8th, 2009 · 1 Comment

Following up on my post regarding email negotiation last week, tthe ABA Journal noted this week that there are limits on the use of social spaces in order to gather information:

A lawyer who wants to see what a potential witness says to personal contacts on his or her Facebook or MySpace page has one good option, a recent ethics opinion suggests: Ask for access.

Alternative approaches, such as secretly sending a third party to “friend” a Facebook user, are unethical because they are deceptive, says the Philadelphia Bar Association in a March advisory opinion.

Not telling the potential witness of the third party’s affiliation with the lawyer “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 opinion explains.

“The omission would purposefully conceal that fact from the witness for the purpose of inducing the witness to allow access, when she [might] 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.”

As Legal Blog Watch noted,

As a general matter, lawyers cannot use third parties to circumvent ethics rules. So what made this lawyer believe he could do this? As it happens, the lawyer offered a novel argument. He argued that asking a third party to friend a witness is no different from the practice of videotaping the public conduct of plaintiff in a personal injury case. The Committee, however, didn’t buy it:

In the video situation, the videographer simply follows the subject and films him as he presents himself to the public. 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.

Ultimately, the Committee found that the lawyer’s efforts to use a third party to friend a witness violated various ethics rules prohibiting fraud and deception because the effort to friend the witness would be done with deceptive intent.

Although discovery was not permitted in this case, there are clear lessons here for our clients and for ourselves in what we post on Facebook or My Space and who we let on our pages. These issues are only going to increase as the next generation of clients will have years of information posted on their social networking sites.