This lawyer’s ethical issue about Facebook isn’t really about Facebook

The Lawyerist blog todaycovered the ethical dilemma of a Philadelphia attorney about using Facebook to collect information in alitigation:

The premise for the opinion is straightforward: a lawyer wanted toknow if he could have a non-lawyer assistant send a Facebook “friend”request to a witness for the opposing party in a piece of litigation.The lawyer apparently thought there were juicy tidbits to be found onthe witness’s Facebook  page (or at least information with impeachmentvalue) but did not think the witness would accept a friend requestdirectly from the lawyer (no surprise there—he had just recently takenher deposition). But the lawyer thought a friend request from anotherwise unknown assistant stood a good chance of being accepted.

The Philly opinion frowned on the lawyer’s proposal. It called ita “highly material fact” that the witness would be making a friendrequest without disclosing the real reason for the request. Inducingthe witness to respond favorably without that important fact would be adeception traceable to the lawyer, violating several ethics rules.


What is most important about the decision, Lawyerist notes, is that itis not really about Facebook at all. The issue facing the attorney inthis situation is a classic ethical problem that has always facedlawyers trying to collect as much information as they can inpreparation for a trial — they cannot send somebody out to collectinformation under the pretense that they are not associated with thelawyer. The article concludes, and I agree, that, “while it iscertainly possible for a lawyer to violate an ethics rule while usingsocial media, it is the lawyer’s conduct, not the medium, that willlikely be at the heart of the issue.”

2 thoughts on “This lawyer’s ethical issue about Facebook isn’t really about Facebook

  1. irving gold says:

    I agree with your assessment, and not being a lawyer, my next comment may be off-base but… It also seems to me that the social media in question is particularly well-suited to this type of investigatorial deception, but in terms of cost and ease of use. So while the generic legal issues remain the same, the vehicle creating the issue is also relevant, no? Murder and assualt are murder and assault regardless of whether an icepic is used or a semi-automatic. But we have laws specific to firearms and not to icepics…

  2. Anonymous says:

    So maybe there needs to be a lower standard for what constitutes an ethical violation on platforms like Facebook where it’s easier to get information, and where lawyers and investigators might make mistakes without thinking it through first?

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