Unethical "Friending:" Restrictions on a Lawyers Use of Social Networking Sites for Investigative Purposes

For the past several months, the American Bar Association’s Commission on Ethics 20/20 (ABA) has been soliciting commentary on various ethics issues involving lawyers’ use of the Internet as an information-gathering device. [1] The Internet, dubbed the “information superhighway” in the early 1990s, is commonly used by attorneys to gather information pertinent to a case, such as locating statutes, researching case law and getting directions to the courthouse. However, certain websites—called networking sites—can be used by attorneys to gather personal information about people who are pertinent to case, such as adverse parties and witnesses.

Networking websites, such as Facebook and MySpace, work by allowing individuals to set-up profile pages, on which an individual posts comments, photos and information about himself or herself. By accepting other users’ “friend requests,” the individual grants others access to the page, thereby allowing newfound “friends” to view the page’s contents. The information gained from looking at another person’s profile page can prove valuable to an attorney because it can give them insight on the individual and, possibly, evidence for the case. According to the ABA, “[an] ethics issue arises when lawyers (or their investigators) make the [friend] request [in order to gain] access to the relevant [people’s] profiles without clearly indicating the purpose for the request or by being deceptive about the request (i.e., pretexting).” [2]

This type of information gathering is not new to certain federal and state agencies, which often have agents go “undercover” by creating fake user profiles and “friending” suspects in order to gain access to the suspects’ profile pages. [3] The agencies then use that information to charge the suspect. In this scenario, the burden appears to be placed on the suspect to know who his or her friends are. A vast majority of commentators seem to agree with this risk dynamic, placing blame on users for not protecting themselves and admonishing those who forget that the Internet is public, not private.

However, the legal ethics opinions on this issue often diverge from the majority view. For example, relying in large part on Model Rule 8.4(c), which prohibits a lawyer from engaging “in conduct involving dishonesty, fraud, deceit or misrepresentation,” and Model Rule 4.1, which prohibits a lawyer from “knowingly mak[ing] a false statement of fact or law to a third person [in the course of representing a client],” many ethics opinions require the lawyer, or any third party working on the lawyer’s behalf, to make his or her purposes known to the user. [4] The user’s failure to properly vet friend requests does not excuse a lawyer’s conduct that violates Model Rule 8.4. As explained by the Philadelphia Bar Association:

Even if, by allowing virtually all would-be “friends” onto her Facebook and MySpace pages, the witness is exposing herself to risks like that in this case, excusing the [lawyer’s] deceit on that basis would be improper. Deception is deception, regardless of the victim’s wariness in her interactions on the internet and susceptibility to being deceived. The fact that access to the pages may readily be obtained by others who either are or are not deceiving the witness, and that the witness is perhaps insufficiently wary of deceit by unknown Internet users, does not mean that deception at the direction of the inquirer is ethical. [5]

Therefore, it is likely that any guidance offered by the ABA will echo these opinions, which forbid lawyers from using deception to gather information and instead require lawyers to abide by “informal and formal discovery procedures sanctioned by the ethical rules and case law to obtain relevant evidence.” [6]