A 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. )
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.
- 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.
- 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?
- 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.
- 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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