The ever-increasing use of social media sites such as Facebook, and the tendency of many people to post personal photos and details on their pages, present an almost-irresistable temptation to lawyers in search of potentially damaging information about witnesses or parties involved in their cases. Yet despite the ready availability of this information, lawyers need to be mindful of their ethical obligations as they try to gain access to personal sites.
The overarching principle for lawyers to remember is that they must not be deceitful or misleading in attempting to access information from social media. It is pretty clear that this means that a lawyer cannot use a false name or identifying details to induce the target to “friend” him. However, different jurisdictions disagree about whether lawyers must inform potential “friends” of their connection to the case or the true purpose of their friend request. Some states say that as long as the lawyer tells the truth–even if it’s not the whole truth–that’s enough. Other jurisdictions suggest that the omission of significant information (especially when that information might cause the target to reject the friend request) is misleading and therefore unethical.
The second basic principle is that the lawyer can’t use someone else to do what he himself would not be permitted to do. So it doesn’t solve any ethical problems to ask a paralegal, or even a friend, family member, or private investigator to make the request. The lawyer is permitted to use information obtained by someone else, as long as the person was not acting at the lawyer’s direction.
Simply viewing a page that is accessible to any member of the public (even if it requires Facebook registration) is generally approved, because it does not involve any “communication” with the page’s owner. Likewise, sending a friend request that contains all of the lawyer’s identifying information and connection to the case is not unethical, so long as the target isn’t represented by counsel–it’s just not likely to be successful!
While the Massachusetts Office of Bar Counsel has not yet addressed the social media issue, other jurisdictions are beginning to weigh in. Just last month, the New Hampshire Bar Association issued an ethics opinion outlining the permissible methods of accessing social media under that state’s rules. The New Hampshire opinion contains a helpful review of emerging ethics opinions from other jurisdictions.
But it’s pretty clear that if the owner has restricted access to the desired information, and refuses a proper friend request, the only safe way to access this type of information is through a proper discovery request such as a deposition subpoena directed to the witness and/or Facebook. Anything short of complete transparency and honesty is a recipe for disaster.