Social networking sites offer an abundance of exculpatory and impeaching evidence that may not be obtainable without some undercover detective work. Unfortunately, discovery rules and ethical guidelines have not kept pace with the digital sprawl of MySpace and Facebook. In the absence of explicit direction from the Rules of Professional Conduct and the laws governing online behavior, flying a false flag in these uncharted waters may be hazardous.[FOOTNOTE 1]
Before an attorney or investigator considers using subterfuge — such as concealing his true identity and purpose to contact a witness through an online profile — he ought to be mindful that legal and ethical precedents on this subject are slow in coming.
