When lawyers spy through Facebook: the ethics of “regional network” changes

find_us_on_facebook_badgeA colleague sent me a fascinating legal ethics question today via email. Can a lawyer in City A go to Facebook and change the regional network that she lists on her personal Facebook account from City A where she lives and works as an attorney to City B in order to investigate a witness or opposing party who lives in City B?

(Note: This question assumes that the witness or opposing party to be investigated has opened up potentially valuable information on her Facebook page to the thousands of other individuals who list their regional network on Facebook as City B, but not to those listing their network as City A. )

Read my previous post to learn more about these Facebook privacy settings. If you are new to Facebook, you can also read my Facebook 101 post.

Since my answer to the question was “I don’t know,” I went to Twitter and asked that question of my followers, a group of mostly lawyers, law students, and paralegals. The results were stunning. For three hours about a dozen legal professionals from around the country heatedly discussed the topic in 140 character tweets.

Here is my brief summary of the major points, but I highly recommend that you read the full conversation on Twitter about Facebook and legal ethics investigations yourself. And don’t forget to start with the first tweet at 2:34pm, found on page 4, and read backwards.

  1. While the Philadelphia Bar Association issued an opinion this March disciplining an attorney for getting a 3rd party to “friend” a witness on Facebook on the lawyer’s behalf, the question of changing a regional network to see what a person has posted to that network is different. Viewing someone’s Facebook page through their regional network does not involve “contact.” One lawyer compared it to “Googling” the party, although somewhat more private. However several lawyers thought that the problems of deceit and misleading a party that were discussed in the Philadephia Bar Association’s opinion could apply to this type of Facebook research as well.
  2. The participants in the Twitter conversation had mixed opinions on whether changing a regional affiliation on Facebook was misleading or a form of a false statement. If no one notices or relies on the statement change does that matter?
  3. One lawyer asked whether Facebook regional networks were supposed to reflect your real life residency, or whether they were arbitrary. If they are arbitrary and do not imply anything, then changing one’s network would not seem to be any form of a deceit.
  4. Boston Attorney David Barrett reminded us that if an act is unethical for a lawyer to engage in, it is also unethical for a private investigator or other third party to engage in, under Model Rule 5.3. He also noted that the ethics rules were different for each state, so any analysis of this issue would likely have to be done on a state by state basis, by examining the language of a state’s rules regarding false statement, misleading information, and deception.

The consensus was no consensus. Three hours after the conversation began my original question had only been more gloriously complicated with dozens of sub issues. As was stated by several people during the Twitter conversation, this would be a great subject for a webinar or future article by someone with more of a background in legal ethics. I challenge CLE developers reading this to take it on.

Thanks to our conversation participants:

  • David Barrett (@BarrettDavid) – Boston Attorney, Director of Social Media for The Rainmaker Institute
  • Rex Gradeless (@Rex7) – Missouri law graduate, author of the Social Media Law Student blog
  • Joshua Gilliland (@bowtielaw) – California Attorney, e-Discovery blogger, and CLE presenter for D4 LLC
  • Kevin O’Brien (@kpob1) – Pennsylvania law student and legal assistant
  • Eric Cooperstein (@Ethics_Maven) – Minnesota Attorney, Legal ethics, a/c privilege, law practice management, partnership breakups
  • Peter Berge (@SmallFirm) – Minnesota Attorney with Small Firm Success at MCLE, The Solo and Small Law Firm Resource Center
  • Mark Rosch (@MarkRosch) – Vice President of Internet Marketing for Internet for Lawyers
  • Josh Camson (@JoshCamson) – Pennsylvania law student
  • Vicki Voison (@vickivoison) – paralegal trainer, mentor, speaker and author
  • Michael McAlpine (@michaelmcalpine) – Ontario law librarian

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  • Elizabeth Cawood

    Actually this is more of a question, directed to anyone who may know the answer. I don’t know if “spying” as described above is ethical or not, but it seems to make more sense to subpoena someone’s facebook page, info, posts, etc., rather than pretending to friend them as someone else or to use deceit. So here’s the question, albeit a rather obvious one to which I should probably know the answer, but I don’t:

    How does one go about subpoena-ing someone’s facebook page and activity? Who does the subpoena go to? What is their address? Who is the custodian of records who fills out the business records certification? if anyone has done this and can tell me, I would appreciate all the help I can get. Thank you!
    Beth Cawood

    I was able to get Facebook’s information for sending a subpoena or court order to preserve or release information. -Ed.

  • @Elizabeth: I just fired off an e-mail to Facebook to try to find the answer for you! I will post it here when I know.

    I have an interrogatory that specifically asks for a party’s usernames, and I will add a request for addresses of all social networking profiles. That should get you to the right information to make out a subpoena, at least.

  • Stephen Stewart

    Here’s an analogy and you may tell me if it is completely out of scope or tries to make two things similar that are completely different.

    Suppose Person B (who lives in City B) writes a biography about themselves. For whatever reason, they decide they only want to release it locally. I am Person A and I want to find out information on Person B. I learn they have this biography released but they live in City B and I all the way in City A. If I go out of my way to make it over to City B to buy the book and therefore learn tons of information about Person B I wouldn’t have otherwise, is that unethical or illegal?

    Since when has it not been okay to seek out personal information that someone makes public?

  • Is there a Rule of Law or a Canon of the ABA Code of Ethics that prohibits this behavior? I did not see that addressed in any of the correspondence. Is there a black-letter rule of conduct that prohibits it?
    The canons of ethical behavior promulgated by various Bars apply to lawyers admitted to Bar, not to private investigators. Each state that licenses or registers private investigators imposes black-letter regulations and codes on those persons.
    Acting within those parameters, the PI is free to do whatever necessary on behalf of her client (presumably a law firm), provided the evidence does not surface as fruit of the poisoned tree. If the holder of the information would not have given it up, but for deceitful or fraudulent behavior by the collector, then we would agree that the means of collection (of the information) is defective. This principle would seem to not apply when collecting information from the Internet.
    If information evolves into probative evidence, and can be defended (i.e., not discredited) in court, then the investigator should collect that information(and by implication, perhaps the attorney should forbear).
    If there is the mere possibility that information (my background would call it intelligence) could be perceived as having been gained by deceit or fraud, then, whether or not this perception is accurate, the wise investigator forbears.

    Peter Pitorri
    Member, Paralegal Association of Northern Virginia
    Certified Protection Professional
    Registered Private Investigator

  • @Peter: Lawyers are prohibited (by Rules 5.3 and 8.4(a) of the Rules of Professional Conduct in most states) from directing someone else to engage in conduct the lawyer could not do him or herself. If an investigator goes off and engages in conduct that is not traceable to the lawyer, then only civil or criminal laws will apply to the investigator. Lawyers are held to a high standard prohibiting misrepresenting their identity to others. An 8th Circuit case from a few years ago, Midwest Motor Sports v Arctic Cat, a lawyer was disqualified from representation because of the conduct of his investigator.

    @Stephen: Of course it would be ethical to buy the book. The question Leora posed, however, was whether it would be ethical to obtain information by joining a “group” which the lawyer did not otherwise have a reason to join. A better analogy might be if the book was only being sold to people who said they were NY residents, even though no proof was being required. If a MN lawyer resident lawyer said she was a NY resident just to get the book, that would be a misrepresentation, albeit slight.

    I think the issue is that the FB information is not entirely public — there is a thin barrier to entry called a “group.” It may be that a group of up to several million members is considered the functional equivalent of public information; that’s what makes the question difficult to answer definitively. If the group was “graduates of Hamilton College,” whose potential members are limited to about 75,000 but who each have a specific credential entitling them to membership, I would think it would be deceptive for a non-graduate to join that group to obtain information her or she would not otherwise be entitled to.

  • @Eric: Thanks for the note. Your observations raised an issue in my mind re. the use of pretext in skip tracing on behalf of clients who are collection attorneys. A while back, I contracted with a firm that encouraged and expected its independent contractors to use pretext to locate hard skips. They taught, indeed promulgated numerous ruses that one could use to try to locate a debtor in hiding. All of the methods were legal. Nevertheless, some of us, after a few weeks, decided that this was not the way we wanted to spend our careers.
    Now, I ask you: If you were a collection attorney, what would be your position if you learned that your skip tracer were engaged as above?

  • Elizabeth Cawood

    Sam – Thank you! Good ideas.

  • Once I became aware of the investigator’s ruses, I would be forced to put a stop to them.

  • Then again, if you were a collection attorney, you might just let it go on, if it helped your business. But I betray my bias.

  • Marty Rosenbaum

    These practices remind me of “pretexting”, which in some circumstances is prohibited under the Telephone Records and Privacy Protection Act of 2006. The Act criminalizes the practice of obtaining personal phone records from a phone carrier through false pretenses (usually pretending to be the customer). The Act was adopted partially in response to the Hewlett-Packard scandal, where pretexting was used in an investigation of Board members.

    I wonder whether the deliberate use of misleading/inaccurate profile information on a social networking site could ever be a violation of the Act – could the host ever be considered a carrier? Probably not, since the Act is fairly narrow (although California’s anti-pretexting law is broader).

    However, the firestorm of criticism after the HP scandal shows the ethical concerns involved. Attorneys and their agents would be well advised to steer clear of anything that looks similar to these types of practices.

  • Interesting topic. We have been hearing of friend requests that are from secretaries of law firms to get information. As Barrett says depends a lot on the state. But, clearly the lawyer is acting in a very questionable manner. In a deposition would you claim to be someone else or from maybe another firm?

  • The Gramm-Leach-Bliley Act (15 USC, Subchapter II, Sec. 6821-6827) prohibits pretexting [defined in the Act as the use of false pretenses, including fraudulent statements and impersonation] to obtain consumers’ personal financial information. Cases have been brought to enforce these provisions http://www.ftc.gov/privacy/privacyinitiatives/pretexting_enf.html
    On the other hand, the Fair Debt Collection Practices Act (15 USC 1692e Section 807(10) ) holds as “False or misleading representations” The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer.
    And yes, this contradicts what I said in an earlier post (July 9) about certain pretexts being legal, in connection with debt collection.

  • Mike Lee

    Misrepresenting your regional network seems to be no longer an issue because it is no longer considered your “network.” Only schools and workplaces qualify for the added privacy protection. See http://www.facebook.com/help/?faq=15263.

    To get into a school or workplace network, the user must provide a valid school or workplace e-mail address (or must be invited by someone already in the network, in the case of joining a high schools). Thus, there’s less ambiguity that joining a network that you do not validly identify with is a violation of Facebook’s TOS, and this is probably unethical… maybe even legally offensive in light of Lori v. Drew. But would it be ethical to get a friend that is within the same network as the witness (e.g. alumni of the same school)?