Social networking sites like Facebook and MySpace encourage their users to supply copious amounts of personal information, ranging from their likes and dislikes to regular updates on their daily affairs. As a result, the sites are tempting targets for attorneys investigating adverse parties or potential witnesses.
The Philadelphia Bar Association’s Professional Guidance Committee recently issued an opinion (2009-02 [PDF]) addressing this topic. Specifically, a Pennsylvania attorney inquired whether it would be permissible under the Rules of Professional Conduct to have a third party – acting at the attorney’s behest – approach a potential witness online to request access to her Facebook and MySpace pages (colloquially known as “friending”).
The third party would use only truthful information, but would not disclose an affiliation with the attorney. The attorney believed that the social networking profiles would reveal information that could be used to impeach the witness’s testimony at trial.
In its opinion, the Committee relied primarily on Rule 8.4(c) which partially defines professional misconduct for lawyers as “conduct involving dishonesty, fraud, deceit or misrepresentation.” The Committee stated that “the proposed course of conduct contemplated by the inquirer would violate Rule 8.4(c) because the planned communication by the third party with the witness is deceptive.” The Committee also believed that the proposed conduct would violate the Rule 4.1(a), which prohibits attorneys from knowingly making false statements of material fact or law to a third person.
The Committee also noted that the attorney wouldn’t be insulated from ethical responsibility simply because the action was taken by a third-party. Rather, under Rule 5.3 (or possibly Rule 5.1), the attorney “is responsible for the conduct under the Rules even if he is not himself engaging in the actual conduct that may violate a rule.”
Read the full opinion: Philadelphia Bar Association, Professional Guidance Committee, Opinion 2009-02 (March 2009).
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