Legal Ethics
Attorney Can’t Ask 3rd Party to ‘Friend’ Witness on Facebook, Opinion Says
Posted May 5, 2009 6:38 PM CST
By Martha Neil
A lawyer who wants to see what a potential witness says to personal contacts on his or her Facebook or MySpace page has one good option, a recent ethics opinion suggests: Ask for access.
Alternative approaches, such as secretly sending a third party to "friend" a Facebook user, are unethical because they are deceptive, says the Philadelphia Bar Association in a March advisory opinion.
Not telling the potential witness of the third party's affiliation with the lawyer "omits a highly material fact, namely, that the third party who asks to be allowed access to the witness’s pages is doing so only because he or she is intent on obtaining information and sharing it with a lawyer for use in a lawsuit to impeach the testimony of the witness," the opinion explains.
"The omission would purposefully conceal that fact from the witness for the purpose of inducing the witness to allow access, when she [might] not do so if she knew the third person was associated with the inquirer and the true purpose of the access was to obtain information for the purpose of impeaching her testimony."
Facebook and MySpace profiles are different from public spaces where one can freely film and record others, the opinion says, because an invitation is required to access them, notes a Social Media Today post on the opinion.
Hat tip: Legal Blog Watch.
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Comments
Steve Perkins
May 8, 2009 4:43 AM CST
Perhaps I’m just terribly unethical, but this seems silly. A few years ago in Facebook’s inception, the model was more limited such that you had to have an actual school connection with someone in order to “friend” them. However, now people can search and browse through random people at ease and “friend” requests mean little. I scarcely recall (or just flat out don’t know) half the people friending me these days, and any marginally attractive female with photos posted is going to lure plenty of strangers. The idea that it’s unethical to “friend” someone who is not really your friend? Duh… that is what what today’s Facebook IS.
It should not be overlooked that people on social networking sites by default must ACTIVELY CONSENT before any individual can view content they are posting. If someone actively consents to grant total strangers such access, then I’m not grasping the ethical quandary. In a divorce action, if you’re willing adding total strangers to your Facebook account while posting, “OMG! I am totally cheating on my wife.. LOL!”, then how can you possibly have a reasonable expectation of privacy?
Granted, the ethical situation changes if you are not “friend”-ing them as a stranger… but rather go out of your way to pose as someone they should know.
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Response to Perkins
May 8, 2009 5:47 AM CST
To Mr. Perkins:
You miss the thrust of the opinion. The reason it is unethical is because the invitation is sought under false pretense. Consider whether a Facebook user would respond differently to a “random” friend request than to a friend request that explains, “I’d like to be your friend to examine your personal postings, etc. for use in litigation.” As the article states expressly, “Not telling the potential witness of the third party’s affiliation with the lawyer “omits a highly material fact, namely, that the third party who asks to be allowed access to the witness’s pages is doing so only because he or she is intent on obtaining information and sharing it with a lawyer for use in a lawsuit to impeach the testimony of the witness,”
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Tom
May 8, 2009 6:20 AM CST
Assuming the information sought is not just fishing, Facebook postings/pages would be discoverable under discovery rules and/or in preparation for a deposition or other responsive requests, wouldn’t they?
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Matt
May 8, 2009 7:19 AM CST
What about a situation in which your client is already a “friend” of the opposing party on Facebook, and your client allows you access to their profile to browse what they can see of the opposing party’s information?
There is no false pretense, because your client was already a friend of the opposing party, and it’s just as if your client looked through the information and gave it to you. Would this be deemed unethical as well?
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Joe
May 8, 2009 7:43 AM CST
The “one good option” mentioned above would also seem to be improper if the witness is the opposing party and represented by counsel, right? I seem to recall a rule about contacting an opposing party only through counsel. So, even saing “I’d like to be your friend to examine your personal postings, etc. for use in litigation” is out of the question. I think the only options are: (1) hoping the opposing party makes his/her profile publicly accessible and/or (2) seeking access through a discovery request.
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alwayssunnyinohio
May 8, 2009 7:53 AM CST
RE: Matt’s question. My gut says its unethical if it can be shown that the third party is probing the incident with the witness at the impetus of the the lawyer without disclosure. This stuff is always discoverable regardless if geared towards communications regarding the case, but from the prospective of the witness, subject to a motion to quash a subpoena duces tecum at least in part if it goes beyond that scope.
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Kevin
May 8, 2009 7:56 AM CST
Joe -
I think you’re mostly right, however the definition of “contact” may come under fire if the party is *already* a friend of the opposing witness and the party simply combs through statements made on Facebook without ever *contacting* the witness.
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Joe
May 8, 2009 8:03 AM CST
Kevin, I agree. I was only referring to the friend request scenario. If already friends, I think a party is free to roam through the witness’s profile.
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AndytheLawyer
May 8, 2009 8:11 AM CST
Obttaining information under false pretenses,using a willing third party without much more, can’t be unethical. If it was, every prosecutor in America that lied (personally or through police interrogators) to accuseds, defendants and witnesses to obtain information for a prosecution would be subject to discipline. But this sort of thing is standard procedure in law enforcement and prosecution establishments.
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Chris
May 8, 2009 8:27 AM CST
I find this ridiculous. If you don’t know a person, don’t accept their friend request.
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P
May 8, 2009 8:33 AM CST
What if the facebook page is not set to private and anyone can access it? I have a similar issue and the defendant’s page is public, so I can check it without having to be his friend. I think that is ethical because he has chosen to allow public access to his page.
What do you think?
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KrisAnn
May 8, 2009 8:49 AM CST
Facebook Witness
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Brooke
May 8, 2009 9:08 AM CST
How is this any different then the tactics that private investigators use? i think if you are willing to accept a friend request from a complete stranger when you have no idea what their intentions are, then there should be no ethical issues. i think an ethical issue could arrise if through FB you are contacting the other party and attempting to get information out of them with respect to the litigation. However, if that information is already freely posted on their wall, then i think that should be fair game.
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Paul
May 8, 2009 9:26 AM CST
The ethical focus is on the attorney—who is supposedly held to a higher standard of professional , i.e. “ethical” “moral?” conduct. The idea is an attorney cant send someone to “friend” a witness without telling the witness everything the witness needs to know in order to make a reasonably informed decision about whether to interact with the supposed “friend” One part of me sees the intuitively “positive” aspect. But then the voice of suspicion kicks in. In at lease some cases, the “friending” between the “friender” and the witness may be legitimate and only later the “friender” somehow becomes aligned with the attorney who is adverse to the witness. In these cases then, the attorney may have to fight against ethical criticisms where wrongdoing has in fact occurred. Some opinions create more problems than they resolve.
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Paul
May 8, 2009 9:27 AM CST
oops—that second to last sentence should say “...where NO wrongdoing has in fact occurred.” =)
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C Free
May 8, 2009 9:38 AM CST
P… I am there with you and have been doing it for two (2) years for my PI cases… It’s interesting to see my poor plaintiff’s dancing and partying online.
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R
May 8, 2009 11:01 AM CST
Nothing at all wrong with Googling a plaintiff like P and C Free are doing. I found some very damaging stuff on a plaintiff in a PI case I had recently.
The only problem is in engaging in deception to gain access to the information. That seems like a no-brainer to me.
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fjp
May 8, 2009 11:49 AM CST
I wonder if this is one of those situations where it would have been better to ask forgiveness than permission. There is no way to present this to the bar in a request for advisory opinion that doesn’t sound like you are asking for an endorsement for doing something sleazy. But—as a result, the opinion doesn’t address the level of privacy expectation the witness can reasonably have, if any, in her Facebook postings. Is there any term of service that restricts anyone you “friend” from republishing information you put on your page? And as #14 has observed there are implications that may affect other kinds of contacts, online and in person. Suppose you find out, by accident, that a friend of yours is the witness’ fishing buddy and the witness talks about the case. Now, of course, as a result of this conversation your friend probably knows that you (lawyer) are interested in what the witness says about the case. Does this mean you need to instruct your friend never to say anything to you again about what the witness says while they are fishing?
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IEskwaya
May 8, 2009 12:06 PM CST
It seems silly to me.
I can recall prosecutors doing all kinds of things to get information about a suspect. For example, where a suspect has refused to volunteer his DNA, prosecutors will seek to obtain it anyway they can, such as by tricking them into sending a letter, thus taking their DNA off the licked envelope seal.
Nevermind the actions of police seeking information and conducting investigations. An undercover police officer will become your child’s godfather, and his information is accepted in court.
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sb
May 8, 2009 12:14 PM CST
Paul, you raise an interesting hypothetical, which prompts an answer and then another question. Your answer is, if I find a “friend” who knows about something and who is willing to provide information, that friend is a legitimate witness whether they got the information from Facebook or from good old-fashioned talking to the party. There would be no ethical dilema involved in your hypo, where the friend is already friend-ed, for valid reasons, and then afterwards gives the information to the attorney, for whatever reason.
The question I have is, if the hypothetical situation is ethically acceptable, then why isn’t it OK to have someone pose as a friend to get information? Forget about Facebook for a minute, because I think it’s a red herring. Constitutionally, if I tell person A (who is not my spouse, my attorney, my therapist, or a member of the clergy) about something and then person A tells the police or an attorney, I have given up my rights of privacy by disclosing the information to person A, because a reasonable person would expect that person A would then be free to tell whoever he or she wants. Put a different way, if I have something I don’t want anyone to know about, I’m not going to tell anyone about it. If anyone does know about it, then everyone is able to find out about it. So why the extra emphasis placed on the fact that this is information publicly shared via Facebook? As I stated before, even if you have the account set to “private,” your information, pictures, and postings are still on there for others to see, over whom you have no control as to their redissemination of that information, so that’s the legal definition of publicly available information.
Can someone tell me why I’m wrong? Because I don’t think I am….
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J. Snarkel Moore
May 8, 2009 1:39 PM CST
None of you seem to see the bigger picture. Imagine the changes ones creates when, without supposition or fabrication, details in the little things are left for others…so is it facebook? or the burdens that society inflicts on those who aren’t willing to subject themselves to what OTHERS say should be the way things are done. I’m looking at all your posts and can’t believe you people don’t see it
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Rocco
May 8, 2009 4:45 PM CST
I use MySpace pages all the time against witnesses who accuse my clients of sex crimes and other crimes against persons. It’s one of the best tools out to destory a DA’s case. We’ve also done what this article says is unethical . . . making up a name to get invited into a person’s private page. Yea, seems like we’re getting as sneaky as the DA’s office!
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Sandra J McLaughlin
May 8, 2009 7:37 PM CST
Judges are generally quite ignorant of social media, its intricacies and interactions in using it. Everything posted on fb or myspace is accessible with the right tools. I do not believe there is ANY expectation of privacy if you post on the net, ANYWHERE! The only ethical ‘problem’ that I see is the deception. Had the lawyer asked to be her friend using his fb name/ID, and she accepted, there should be no problem. To a journalist student today, that is like telling counsel she cannot read the local newspaper because there may be an article in it about the opposing party!!
We lawyers were warned about the use of fax machines, then cell phones, and finally emails, as we lost the expectation of privacy and they became nearly universally discoverable. I had an appeals court judge who had his emails printed out every morning!
The bytes are captured for ‘all eternity’ basically. The Black Box endeavor captures an entire day of the net on a hard drive and gives that computer to students in third world countries to use, so they do not fall so far behind the rest of the world’s kids just because they are so remote. It is similar to google capturing info and a user later accessing it by date or subject, in a cache.
Police scan students’ fb everyday without permission, just hunting for crime! Every underage drinking party that has been busted in my area has arisen from the info posted on fb or myspace.
BTW, fb no longer allows the access referenced above unless one is a friend. One may see a user name, photo if posted, and the user’s friend list ONLY, and IF if she chooses to post the photo, the town and birthdate, nothing else.
Two years ago, I looked for friends of a girl who had been murdered. I was able to go from her friend A to A’s friend B, and then find someone on B’s list to go to C. I was 5 links out determining the identity of her friends. Lots of HS kids used fake names and towns, no phone numbers, nor contact info other than instant msg IDs. My daughter’s HS wanted to know if Kat had so many friends in it, that they should call in a grief counselor, as she attended a school 30 miles away. I found over 70.
She had a lot of rock bands added as friends. At that time, if you added a rock band and that rock band had 3000 fb friends, you got them all! You had access to them and they to you. I do not know how much access, but my point is that if Kat still had her same fb site, she’d still have all of these “friends!”
How can anyone think that fb isn’t as public as any bulletin board….at the library, the laundromat, or online???? The PI’s who read this KNOW it is not!! Law enforcement know it is not! Police, FBI, insurance companies and law firms advertise these types of jobs—sleuthing, ... or just reading! LOL Kids carefully craft posts knowing that the special guy will spy it, even though he is not on her friend list!
There are several ways to set the privacy levels now, but I have people on my friend list from all over the world and only once asked a man who he was.
I suspect he is government wanting to know about our Tea Party posts, NRA posts, and why we connect so many friends from other countries. (We are lawyers, journalists, photographers, politicians and college kids, mostly, on my list of a thousand friends and my friends’ thousands. Most college kids seem to have over 500, often several thousand on their lists. I see a significant difference, in the use and understanding of social media, between 16 year olds and 25 year olds, and an even greater difference between 25 and 35 y.o.
My son refuses to add me as a friend as he knows my fb usage! LOL I hope lawyers know that anyone’s IP address is traceable in an email, which is why servers don’t use static addresses anymore. I have had people tell me they are in one state, only to ‘locate’ them in a different state! The understanding of social media by tweens through early twenties is that all of it is public. Job offers are retracted from people who indiscreetly post items on their fbs! That future ‘corporation’ employer did not become a friend on the guy’s fb, but it knew what was there!
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Criminal Defense Attorney
May 9, 2009 2:36 PM CST
I support your position, Perkins. And, as that implies, I do think this opinion is hogwash.
As a criminal defense attorney, I see this play out another way. I am a criminal defense attorney in a college town; many of my clients are college students. The District Attorney’s office uses “interns” to gather incriminating Facebook and Myspace info against defendants and anyone I list as a witness. If it’s not unethical for a DA to get an intern/volunteer to gather Facebook dirt by “friending” my clients, then it’s fair game for everyone else.
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dah
May 10, 2009 3:23 PM CST
I think people who are on social networking sites are IDIOTS! Anything and everything can and will be used against you in a court of law. What really gets me is that lawyers and judges are on facebook. I’ve seen similar postings as what someone has posted above like “I’m totally cheating on my wife! LOL” by attorneys! Dah! Did they take civil procedure?
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Paul
May 11, 2009 7:16 AM CST
If the government can use Facebook and other on-line contacts to build a case, then a private attorney as an equal right to build a case/defense for their client. This in one sided justice.
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Heather Peno
May 17, 2009 3:58 PM CST
So, would it not be OK if you’d hired a PI who gave you the info from FB?
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