• “Friending” Leads to Ethics Complaint
  • March 12, 2015 | Authors: Seth L. Laver; Michael P. Luongo
  • Law Firm: Goldberg Segalla LLP - Philadelphia Office
  • An important aspect of litigation requires counsel to become investigator, to track leads, to turn every stone. Counsel seeks to better understand her adversary. Generally, this discovery process takes the form of formal document production, a long-standing and generally understood method of obtaining information. In this digital age, many attorneys also take to social media to gain additional information. However, unlike traditional paper discovery, using social media during litigation is fraught with peril.

    Recently, the New Jersey Office of Attorney Ethics filed a complaint against two defense attorneys for Facebook activity. The attorneys had represented a city borough and police department in a personal injury action filed by a plaintiff claiming injuries sustained when he was struck by a police car. One of the defense attorneys allegedly directed his paralegal to conduct an internet search to obtain info about the plaintiff.

    The paralegal accessed the plaintiff’s Facebook page, which was originally public, but later made private. Using her true identity, but not disclosing her association with the law firm, the paralegal sent a “friend” request to the plaintiff, which he accepted. Once she had access to the plaintiff’s private Facebook page, the paralegal obtained information that the defense attorneys could use to impeach him, including a video showing him wrestling.

    The plaintiff eventually learned of the paralegal’s connection with the defense attorneys and filed a grievance with the ethics committee. The committee initially determined that there was no violation of the ethics rules and declined to take up the matter. The plaintiff’s attorney didn’t give up there and contacted the Office of Attorney Ethics, requesting a full investigation and hearing. The OAE reversed.

    The OAE concluded that the attorney had violated Rule of Professional Conduct 4.2 (communicating with a person represented by counsel), Rule 5.1(b) and (c) (failure to supervise a non-lawyer assistant), Rule 8.4(a) (inducing another to violate ethics rules), Rule 8.4(c) (conduct involving dishonesty and deceit), and Rule 8.4(d) (conduct prejudicial to the administration of justice).

    The OAE’s ruling suggests that in some jurisdictions “friending” an adversary on Facebook, or otherwise accessing an adversary’s private account, conflicts with the rules of professional conduct. When social media accounts are not publicly accessible, attorneys should first seek to obtain the information though traditional methods to ensure compliance with the rules. Given the evolving ethical considerations applicable to social media accounts, attorneys and their clients must undertake a careful determination whether social media information is necessary and, if so, how to obtain the information within the confines of the rules.