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Legal Ethics

Lawyers Can’t Friend Potential Witnesses Under False Pretenses, Ethics Opinion Says

Posted Sep 30, 2010 5:29 AM CDT
By Debra Cassens Weiss

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Lawyers can’t use trickery to obtain evidence on Facebook and other social networking sites, according to a new ethics opinion.

The opinion (PDF) by New York City Bar Association focused on this question: May a lawyer use deceptive behavior to friend a potential witnesses? The bar’s Committee on Professional Ethics concluded the answer is no, while allowing lawyers to play their cards close to the vest.

“We conclude that an attorney or her agent may use her real name and profile to send a ‘friend request’ to obtain information from an unrepresented person's social networking website without also disclosing the reasons for making the request,” the opinion says. A press release has details.

The opinion notes that lawyers are increasingly turning to social networking sites such as Facebook, Twitter and YouTube as potential sources of evidence. A divorce lawyer, for example, may look for evidence of infidelity on Facebook. Or a lawyer representing a plaintiff in a copyright infringement case would be interested in pirated videos on YouTube.

But lawyers searching for information are limited by ethics rules barring misconduct involving dishonesty, fraud, deceit or misrepresentation and prohibiting knowing false statements of fact, the opinion says. “We believe these rules are violated whenever an attorney 'friends' an individual under false pretenses," the opinion concludes.

The opinion lists potential ruses that are off-limits. A lawyer can’t create a false Facebook profile in hopes it will be of interest to a targeted witness. And a lawyer can’t e-mail a YouTube account holder falsely touting a recent digital post in hopes of gaining access to the target’s channel.

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