Social media has opened the door for some interesting ethical considerations. For example, by simply “friending” someone on Facebook, one can see their posts, activity and comments – by not only the friend, but anyone who comments on their posts.

What happens if an attorney instructs an intermediary to do this to gain information that could be helpful (or harmful) to a client’s case? Is this legal?

The Philadelphia Bar Association’s Professional Guidance Committee weighed in on this question, after being asked whether an attorney could use a third person to gain access to the Facebook page of a witness so that they might discredit that individual. The questioner noted that the third person would only state truthful facts but would not reveal why he or she wanted to be Facebook friends. The committee determined that the conduct does, in fact, violate several rules.

Even if the witness freely gave access to his or her Facebook page, the request is deceitful because it did not disclose the true purpose, violating:

  1. 8.4(c) of the Pennsylvania Rules of Professional Conduct due to its deceptive nature,
  2. 4.1 regarding truthfulness in statements, and
  3. 5.3 concerning the lawyer's responsibility for non-lawyer assistants.

It was also noted that using a third party does not insulate the lawyer from ethical responsibility.

The Professional Guidance Committee also shared that attorneys could advise their clients to limit access to their social media by privatizing their page and even deleting information. However, lawyers must take appropriate steps to preserve their client’s potentially relevant and discoverable social media evidence.

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