Social media information that reflects a person’s physical condition, activity level, and emotional state is a particularly valuable source of discovery in product liability and personal injury cases. See, e.g., Forman v. Henkin, 30 N.Y.3d 656 (2018). Lawyers must take great care to collect that information ethically.
In the first New Jersey decision to examine the issue, the New Jersey Supreme Court’s Disciplinary Review Board (DRB) concluded that an attorney should receive an admonition for directing a subordinate to “friend” an adverse, represented party on Facebook. In re John J. Robertelli, No. DRB 19-266, No. XIV-2010-0485E (Disciplinary Review Board Apr. 30, 2020).
New Jersey’s Approach to “Friending”
In 2016, the New Jersey Supreme Court suggested that a lawyer’s conduct was problematic and called the “friending” question a “novel ethical issue.” The Court assigned the case to a Special Master, who conducted a three-day hearing and concluded the case should be dismissed.
Four members of the DRB disagreed and decided an admonition was warranted, holding that the lawyer violated the Rules of Professional Conduct by (1) engaging in clandestine communication with a person he knew was represented by counsel (violating Rule 4.2); (2) engaging in conduct involving deceit, fraud, dishonesty, and misrepresentation (violating Rule 8.4(c)); and (3) failing to supervise a non-lawyer assistant (violating Rule 5.3(a), (b), and (c)).
The DRB was divided over the gravity of the conduct. While a four-member majority called for the admonition, two members recommended a more severe censure, and three other members believed the attorney’s conduct did not warrant any penalty.
The DRB majority also recommended that the Supreme Court adopt a policy addressing social media use for discovery purposes. The DRB stated that accessing public portions of a social media page should be permissible, but any attempt by an attorney, their subordinate, their agent, their proxy, or their client to access a represented or unrepresented party’s private social media page should constitute an improper communication in violation of RPC 4.2, and a potential violation of RPC 8.4(c).
The DRB did not find the conduct to be “novel” as much as “modern.” The DRB reasoned, “Although this matter confronts the application of Rules developed in an ‘analog’ world to conduct committed in what is now a ‘digital’ world, the non-existence of technology at the time the Rules were drafted does not transform the conduct under scrutiny into novel behavior. Rather, the respondent’s misconduct, neither unique nor new, simply took place in a more modern forum. The forum does not change the nature of the misconduct or the necessity for the respondent to be aware of his professional obligations.”
The DRB’s decision is subject to final approval by the New Jersey Supreme Court.
Other Jurisdictions’ Approaches to Attorneys’ “Friend” Requests
There is a consensus on this issue as demonstrated by the approach of several states, with the exception of New York.
In an Informal Opinion by the Connecticut Bar Association Committee (Opinion 2011-4), which considered a hypothetical case where a lawyer sought to friend an adverse, represented party, the Committee stated that the friend request would be a “communication” with the adverse party for purposes of gathering information to use in the litigation. If the request were accepted, such direct communication between a represented party and the lawyer representing the opposing party would violate Rule 4.2. The Opinion noted that using a third person to do that which the attorney could not do would violate Rule 4.2 and other rules.
The Philadelphia Bar Association Professional Guidance Committee issued Opinion 2009-02 (the Philadelphia Opinion), discussing Facebook and Myspace accounts maintained by a witness deposed in connection with the litigation. The Committee opined that a friend request from an attorney to a third party made without identifying himself as counsel would violate RPC 8.4(c) because the planned communication with the witness was deceptive. Omitting the lawyer’s identity would conceal a key fact in order to induce the witness to allow access to her personal information.
The San Diego County Bar Association published Legal Ethics Opinion 2011-2 (the San Diego Opinion), noting that “friending” someone is not the same as viewing publicly available information on that person’s social network page.
The San Diego Opinion states that an attorney violates his ethical duty not to deceive by making a friend request of a represented party without disclosing why the request is being made. This part of the analysis applies regardless of whether the person sought to be “friended” is represented or whether the person is a party to the action.
New York addressed this topic in an opinion issued by The New York State Bar Association Committee on Professional Ethics Opinion #843 (Opinion #843), followed by the New York City Bar Committee on Professional Ethics Formal Opinion 2010-2 (Opinion 2010-2).
Opinion #843 addresses the propriety of accessing the Facebook page of a party if the lawyer does not send a friend request and relies on the information publicly available within the party’s profile. The opinion concluded that accessing publicly available information from an adverse party’s social networking website was permissible.
Opinion 2010-2 carried the question a step further, inquiring whether a lawyer, directly or through an agent, may contact unrepresented parties through a social networking website and request permission to access their private profile to obtain information to be used in litigation. Noting New York courts’ approval of an “informal discovery” policy, the Opinion determined that attorneys or their agents may send friend requests to unrepresented parties’ if they use their real names.
In Robertelli, the DRB recommended New Jersey adopt the standards promulgated in the ethics opinions of Philadelphia and San Diego, among other jurisdictions, which restrict social media communications with represented and unrepresented individuals.
The Robertelli case was just one of the many discussed during Faegre Drinker’s recent virtual CLE Presentation, Social Media: Ethical Considerations for In-House Attorneys. We will provide further updates on the “friending” issue and related developments as they arise.