In our last installment, we discussed how the phenomenon of social networking is taking hold in the legal profession. Recognizing the benefits for lawyers increasing their exposure on the Internet, bringing them more clients and growing their professional networks, we outlined some of the risks that are rapidly coming to light, including how social networking and blogging lawyers are encountering ethical, legal and employment problems.
Another ethical “red flag” that has been observed is that some lawyers may be using deception to gain access to social networking profiles of those they encounter in the legal process. For instance, the use of these social networking sites by litigators can be particularly effective in obtaining information against the interests of opponents and adverse witnesses. Like other effective investigative techniques, this method of obtaining information has its ethical limitations and can become a trap for lawyers when taken too far.
Responding to a lawyer inquiry, a Pennsylvania bar association committee recently opined that a lawyer’s use of an employee or agent to contact an adverse witness through a “friend request” on Facebook® and using the information found in the profile in litigation is deceptive and in violation of the state's rules of professional conduct1. The inquiring lawyer believed that the targeted witness generally granted these requests and that the employee or agent would be able to uncover information that could be used to impeach the witness at trial. While the ethics opinion observes that information in social networking profiles is probably discoverable, the committee differentiates conduct involving deceit from more straight forward investigative activities commonly used by lawyers, their employees and agents:
Lawyer Supervision of Deceptive Tactics. If an employee or agent of the lawyer, at the lawyer’s behest, deceptively interacts with a targeted witness or other person through a social networking profile, the offending lawyer is not insulated from responsibility for the misconduct. Ordering, ratifying or procuring deceptive conduct would nonetheless render the lawyer ethically responsible2.
Deceptively "Friending" Equals Dishonesty, Fraud, Deceit or Misrepresentation. The proposed communication by the lawyer’s employee or agent with the targeted witness omits a material fact, namely, that the lawyer’s designee is seeking access to the profile solely to gain adverse information to impeach the testimony of the targeted witness3. Even if the targeted witness would likely permit access to the profile to the lawyer if he or she forthrightly asked for access does not remove the deception.
Comparing Deceptively "Friending" with Permissible Investigative Activities. The proposed conduct can be easily differentiated from the common --and ethical -- practice of videotaping the public conduct of a plaintiff in a personal injury case to show that the plaintiff is capable of performing physical acts. The committee recognized that, in the circumstance of the video, the videographer merely follows the subject and films him or her in public. The videographer does not seek to enter a private space. If the videographer did use such deception, the lawyer directing such conduct might confront similar ethical questions.
In sum, careful lawyers seeking information concerning adversaries or third parties through social networking sites must recognize when they are going too far in their investigative techniques. Likewise, lawyers must remember that deceptive investigative techniques, which are lawyer directed, will implicate legal ethics rules when undertaken by employees or agents of the lawyer, just as they would if the lawyer committed the acts.