Friending a Naive Adverse Witness for Info Could Violate Ethics Rules

Thinking of asking an acquaintance or paralegal to friend an adverse witness to gain information that could be used for impeachment?

Don’t do it, an ethics opinion warns.

The Philadelphia Bar Association’s Professional Guidance Committee has warned that such a plan would violate Pennsylvania ethics rules, the New Jersey Law Journal reports.

“Deception is deception, regardless of the victim’s wariness in her interactions on the Internet and susceptibility to being deceived,” the opinion (PDF) says.

The inquiring lawyer explained that an 18-year-old adverse witness has accounts on MySpace and Facebook, and tends to accept anyone who sends a friend request. The lawyer sought advice on a plan to have a third party send a friend request, with the aim of obtaining information that could be used against the witness. The third party would give his or her real name, but would not reveal any link to the lawyer.

The March opinion saw several ethical problems with the scenario. First, if the third party is a paralegal, the plan could violate an ethics rule barring lawyers from ordering assistants to do things that lawyers cannot do under the ethics rules. Second, the plan would violate an ethics rule barring lawyers from inducing others to engage in conduct involving dishonesty, fraud, deceit or misrepresentation. Third, the plan violates a rule barring false statements of material fact in the course of representation.

“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,” the opinion said. “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.”