It is well established that attorneys or others acting on their behalf cannot surreptitiously “friend” targets of an investigation or individuals named in a lawsuit for the purpose of gaining access to their social media pages. ABA Rule 8.4 prohibits attorneys from engaging in “conduct involving dishonesty, fraud, deceit, or misrepresentation.” For example, in New York, attorneys are prohibited from impersonating a high school friend of a defendant to gain access to portions of a social media page that the general public cannot view.
When a lawyer is prohibited from engaging in a particular act, he or she cannot instruct someone else to engage in that same act on his or her behalf. ABA Rule 8.4(a) prohibits an attorney from “knowingly assist[ing] or induc[ing] another” to commit acts that would violate the rules of ethics. In most states, an attorney is also responsible for his or her nonlawyer assistants. If a lawyer with direct supervisory authority over an employee is aware of his or her conduct that violates the attorney’s ethical obligations but fails to act, the attorney has violated ethics rules.
In New Jersey, two defense attorneys found themselves under the bar association’s scrutiny when their paralegal friended the plaintiff in a personal injury action. The attorneys are alleged to have directed the paralegal to make the request, but both deny the charges. They were charged with violating state ethics rules concerning communication with unrepresented parties, failure to supervise a nonlawyer assistant, and engaging in dishonest conduct. This should be a lesson for lawyers to instruct their employees to refrain from surreptitiously friending potential witnesses or opposing parties.
Less well settled is whether attorneys can friend a nonparty if they do not misrepresent their identity. As the New York City Bar Association points out, ethical issues arise because of the informality of the Web and the fact that it is much easier to deceive a person online. The bar association noted that “if a stranger made an unsolicited face-to-face request to a potential witness for permission to enter the witness’s home, view the witness’s photographs and video files, . . . the witness almost certainly would slam the door shut and perhaps call the police.”
Other state bar ethics opinions suggest that it is improper for lawyers or their employees to friend a witness even without misrepresenting themselves. An attorney sought guidance from the Philadelphia Bar Association about whether someone acting under the attorney’s direction could attempt to friend a person using only truthful information but not revealing that he or she was acting at an attorney’s request. The bar association held that this action would violate misconduct rules because “it omits a highly material fact, namely, that the third party who asked to be allowed to access the witness’s page 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 a witness.”
Similarly, the New Hampshire Bar Association opined that it is a violation of an attorney’s ethical obligations to attempt to friend a witness, because the request likely will omit material information and deceive the witness. Compare this to Oregon, where the bar association has stated that a friend request, without further information, does not imply the person requesting access is disinterested in the information but rather is seeking the information for an unidentified purpose. Oregon places the obligation to inquire about the requestor’s intent on the witness.