By Carl W. Chamberlin
Facebook can be a gold mine of information about litigants and witnesses. A personal injury plaintiff alleging debilitating leg injuries may post photos of her latest hiking trip. A defendant in a wrongful discharge case may make discriminatory remarks. Potential witnesses may disclose their whereabouts, and a divorcing spouse may display behavior that could be used to show parental unfitness. But often Facebook profiles have been made private and can be viewed only by a “friend.”
May an attorney ethically request to become a Facebook friend for the purpose of accessing someone’s private profile in the course of representing a client?
The first concern is whether the friend request is going to a party represented by counsel. Under California Rules of Professional Conduct (CRPC) 2-100, a lawyer while representing a client shall not communicate directly or indirectly about the subject of the representation with a party the lawyer knows to be represented by another lawyer without that lawyer’s consent.
A friend request is at least an indirect communication. A “party” can be any party in the litigation or transaction and includes officers, directors, partners, and managing agents, as well as certain other employees. (CRPC 2-100(B).) So, for example, an attorney may not gain access to the private Facebook page of an opposing party’s employee without the consent of the party’s attorney. (San Diego County Bar Association Legal Ethics Opinion. 2011-2.)
What if the friend request is going to a party who is not represented by counsel, or to a non-party such as a witness or expert? Even then, the attorney must not employ deception, such as using a false name to trick the recipient into accepting it. Under Business and Professions Code section 6106, an act involving dishonesty is a cause for discipline, and Business and Professions Code section 6068(d) imposes a duty to use “means only as are consistent with truth” in maintaining the client’s cause.
Although not incorporated into the current CRPC, ABA Model Rule 4.1(a) prohibits a lawyer from knowingly making a false statement of material fact to a third person, and ABA Model Rule 8.4(c) prohibits conduct involving dishonesty or deceit. The attorney may even have to affirmatively disclose his or her “affiliation and the purpose for the request.” (San Diego County Bar Association Legal Ethics Opinion. 2011-2.)
Can the attorney avoid these obstacles by having someone else make the friend request? Doing so to conceal the request’s purpose may itself be a prohibited deception. In addition, CRPC 1-120 provides that a lawyer “shall not knowingly assist in, solicit, or induce any violation of these rules or the State Bar Act.” CRPC 3-110, which imposes a duty to supervise the work of subordinate attorneys and non-attorney employees or agents, both prohibits the attorney from circumventing ethical rules and requires supervision of others so they do not violate the rules on their own.
The bottom line? Don’t try to friend, if you have to pretend.
Carl W. Chamberlin is an attorney, adjunct professor, and member of the BASF Legal Ethics Committee. The views expressed in this article are his own.