Tuesday, May 5, 2009

Professionalism alert: Unethical for lawyer to use third party to "friend" witness on Facebook

This is an interesting "advisory opinion" from the Philadelphia Bar Association's Professional Guidance Committee concluding that it is unethical for a lawyer to hire a third party in order to "friend" the Facebook and/or MySpace profile(s) of a litigation witness for purposes of obtaining relevant information contained therein.  The lawyer in question apparently thought the witness's profile contained information he might be able to use to impeach her during a deposition in the case.  According to the opinion, after the attorney realized the witness would not likely "friend" him if he used his real name, he came up with the idea of hiring a third party to do it.  As the opinion states:

The inquirer proposes to ask a third person, someone whose name the witness will not recognize, to go to the Facebook and MySpace websites, contact the witness and seek to “friend” her, to obtain access to the information on the pages. The third person would state only truthful information, for example, his or her true name, but would not reveal that he or she is affiliated with the lawyer or the true purpose for which he or she is seeking access, namely, to provide the information posted on the pages to a lawyer for possible use antagonistic to the witness. If the witness allows access, the third person would then provide the information posted on the pages to the inquirer who would evaluate it for possible use in the litigation.

While ethical rules prevent attorneys from engaging in deceptive conduct, the attorney in question analogized his request to videotaping a potential witness in public given the non-private nature of Facebook and MySpace profiles.  However, the advisory opinion concluded:

The inquirer has suggested that his proposed conduct is similar to the common — and ethical — practice of videotaping the public conduct of a plaintiff in a personal injury case to show that he or she is capable of performing physical acts he claims his injury prevents. The Committee disagrees. 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.

Hat tips to the Social Media Blog and The Legal Blog Watch.

I am the scholarship dude.

(jbl)

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