Consider the following hypothetical scenario: An attorney searches for an adverse party in an Internet search engine and discovers that the party has a Facebook page. The attorney reviews the limited public information available on the party’s Facebook page, but he realizes that if he asks to be online “friends” with the party he will be able to access much more detailed, private information about that party. This private information is only available to users the party accepts as “friends.” The attorney suspects that the private information may contain relevant information about the party’s credibility or the lawsuit. Taking advantage of the fact that many social networking users are less than discriminating when accepting “friend” requests, the attorney wonders whether he may ask a third party, such as his paralegal, to attempt to “friend” the party in order to obtain access to the party’s private information. The party and the paralegal are not acquaintances, but the paralegal would use his actual name and other identifying information in an attempt to “friend” the party. Of course, to gain access without raising suspicion, the paralegal would not reveal his affiliation with the attorney or the motivation for becoming “friends.” The question that arises out of this hypothetical is whether, from an ethical perspective, a cyberspace “friend” could become a foe.
In March, the Philadelphia Bar Association Professional Guidance Committee (“Committee”) advised in Opinion 2009-02 that a similar scenario would violate the Pennsylvania Rules of Professional Conduct. In Opinion 2009-02, a nonparty witness was deposed; the witness testified that she had Facebook and MySpace accounts; the attorney believed that the witness would grant access to any user who asked for access to her accounts; the attorney wished to use a third person to seek access to her accounts; and, the third person intended to state “only truthful information, for example, his or her true name, but would not reveal that he or she is affiliated with the lawyer or the true purpose for which he or she is seeking access, namely, to provide the information posted on the pages to a lawyer for possible use antagonistic to the witness.” While the committee recognized the existence of a “controversy regarding the ethical propriety of a lawyer engaging in certain kinds of investigative conduct that might be thought to be deceitful,” the committee concluded that the proposed course of conduct would violate several PRPCs. (See New York Lawyers’ Association Committee on Professional Ethics Formal Opinion No. 737; In re Paulter, 47 P.3d 1175 (Colo. 2002); In re Gatti, 8 P.3d 966, 974 (Ore. 2000); Oregon RPC 8.4).
