The Internet has become a major part of almost everything we do. We often warn our friends, family and clients to be careful about what they put up on "the Net" as what is put there will be visible to "the world" and may be there for a long time, if not forever.
What are the rules that have to be followed when evidence is gathered from the Web? It is generally thought to be acceptable to Google for information. What are the rules about looking for personal information about an adverse party in pending litigation through other types of social media? Can you investigate by looking on the Facebook page of a party? Can you "friend" someone on Facebook for the specific purpose of gathering information for litigation?
Some of these issues were recently addressed in a case pending in New Jersey where two New Jersey defense lawyers were charged with ethics violations for allegedly having made an improper use of Facebook.
In this case it is alleged that the defense attorneys had their paralegal "friend" a plaintiff in a personal injury case so they could access information on his Facebook page that was not otherwise available to the public. The lawyers dispute that they directed their paralegal to act in this specific fashion.
The "friend" request, alleged to have been made "on behalf of and at the direction of" the lawyers, "was a ruse and a subterfuge designed to gain access to non-public portions of [the] Facebook page for improper use" in defending the case, the Office of Attorney Ethics charges.
The OAE says the conduct violated Rules of Professional Conduct governing communications with represented parties, along with other strictures.
The paralegal gathered photographs and information from Facebook concerning the plaintiff’s family members and two people who witnessed the accident.
At first, the paralegal was able to freely grab information from the plaintiff’s Facebook page but after the plaintiff upgraded his privacy settings so that only friends had access, she sent him the "friend" request, which he accepted, the complaint says.
The defense attorneys were charged with violating RPC 4.2, concerning communications with represented parties; 5.3(a), (b) and (c), failure to supervise a non-lawyer assistant; 8.4(c), conduct involving dishonesty and violation of ethics rules through someone else’s actions or inducing those violations; and 8.4(d), conduct prejudicial to the administration of justice. The defense attorneys were also charged with breaching RPC 5.1(b) and (c), which impose ethical obligations on lawyers for the actions of attorneys they supervise.
It is disputed that the “friending” was "a ruse and a subterfuge," since the paralegal used her own name.
At the present time there are no New Jersey ethics opinions specifically addressing "friending" people for litigation purposes but three bar groups around the country have deemed it unethical.
In March 2009, the Philadelphia Bar Associations Professional Guidance Committee found in Opinion 2009-02, that it would violate the equivalents to RPC 8.4(c) and 4.1 for a lawyer to have a third party seek to “friend” a witness whose testimony was helpful to an adverse party.
The New York City Bar Association’s Opinion 2010-02, said contacting an unrepresented person through a social networking website and asking for permission to access her web page to obtain information to use in litigation would violate the counterparts to RPCs 4.1, 5.3(b)(1) and 8.4(a) and (c).
Opinion 2011-2, from the San Diego County Bar Legal Ethics Committee on May 24, 2011, involved a lawyer representing a plaintiff in a wrongful discharge matter who wanted to “friend” two high ranking employees of the company who his client had said were unhappy with the company and had disparaged it. The committee said the attorney was barred from ex parte contact with a represented party to elicit information pertaining to the case by any means and that the duty not to deceive prohibited making a friend request of even an unrepresented witness without disclosing the purpose of the request.
"Represented parties shouldn’t have ‘friends’ like that and no one – represented or not, party or non-party – should be misled into accepting such a friendship," wrote the committee.
The first hearing in this NJ case is expected to take place this fall.
Lewis J. Pepperman is Co-Managing Director of Stark & Stark and the Chair of the Litigation Group in Stark & Stark’s Lawrenceville, New Jersey office. For questions, or additional information, please contact Mr. Pepperman.