A lawyer wants to get access to an adversary witness’s Facebook page so he can use information he finds there to impeach her testimony at trial. But even though she accepts virtually anyone who asks to be her “friend” whether she knows them or not, he worries that she wouldn’t accept his request if she recognized his name and face from her deposition, which might prompt her to guess his intent. So the lawyer asks an office paralegal to send her a “friend request” instead. Sure enough, she accepts, and soon the paralegal is gathering all sorts of dirt on the witness and passing it on to the lawyer.
Is this an ethical plan for the lawyer, or not? Earlier this year, the Philadelphia Bar Association’s Ethics Committee issued a legal ethics opinion that concluded it was not: the paralegal was acting for the lawyer, who was using subterfuge and misrepresentation to gain the witness’s consent to explore her private (or semi-private) Facebook information. The Committee said that it didn’t matter that the witness was careless with granting access, or that she gave consent to other “friends” that she barely knew:
“…the planned communication by the [paralegal] with the witness is deceptive. It omits a highly material fact, namely, that the third party who asks to be allowed access to the witness’s pages is doing so only because he or she is intent on obtaining information and sharing it with a lawyer for use in a lawsuit to impeach the testimony of the witness. The omission would purposefully conceal that fact from the witness for the purpose of inducing the witness to allow access,when she may not do so if she knew the third person was associated with the inquirer and the true purpose of the access was to obtain information for the purpose of impeaching her testimony.The fact that the inquirer asserts he does not know if the witness would permit access to him if he simply asked in forthright fashion does not remove the deception. The inquirer could test that by simply asking the witness forthrightly for access. That would not be deceptive and would of course be permissible. Plainly, the reason for not doing so is that the inquirer is not sure that she will allow access and wants to adopt an approach that will deal with her possible refusal by deceiving her from the outset.”
Lawyers are, of course, forbidden from engaging in misrepresentation or dishonesty in the practice of law.
I’ve been discussing this opinion with lawyers—law firm, solo practitioners and government—all over the country this year, and I can report that the vast majority of them think the Philly Bar Ethics Committee is all wet. Mots of them argue that while it is true that the paralegal is a stand-in for the lawyer, in essence a disguise (and a disguise is misrepresentation) to keep the witness from discerning that the lawyer is trying to gain access to her private musings, there is no in inherent representation of the motive for a “friend request” in any such communication. There is no implication that the individual requesting access has benign intent. How, they ask, is this scenario different from a lawyer hiring a private investigator to attend a neighborhood party, when there are allegations of discriminatory practices among the residents that the lawyer want to confirm? Suppose some individuals in the neighborhood would recognize the lawyer, and would ask him to leave (or be careful what they say around him), but are not going to be equally suspicious of a stranger. Assuming the investigator just goes quietly around the gathering, munching potato chips and taking surreptitious video but never misrepresenting his identity of employer, his activity would probably not constitute an ethical violation for the lawyer. Simply doing investigation that the lawyer himself would not be permitted to do does not constitute misrepresentation.
I’m not convinced that’s a fair analogy, however. It would be closer if the investigator had to be granted permission before he could get into the party. Let’s presume he actually does live in the neighborhood, but is only going to the party to spy for his lawyer boss, who does not. Lawyer ethics rules take the position that a non-lawyer who is doing a task for a lawyer represents the lawyer’s purposes, duties and ethics, not his own. If the paralegal had won “friend” status from the witness before he knew his attorney employer wanted access to his new “friend’s” Facebook page there would be no deception, just as the investigator could attend his neighborhood party for the usual reasons, and then turn mole afterwards without breaking any legal ethics principles.
The Philadelphia Bar concludes that the witness is being tricked into providing access without full disclosure. What if the lawyer, however, had just taken a shot, asked to be accepted as a friend using his own name and photo, but without disclosing anything more, and been successful, because the witness didn’t recognize him? Or suppose she did recognize him, but stupidly or naively assumed he really just wanted to be friends? Absent a clear attempt to deceive, would the lawyer’s request, undisguised, but without disclosure of the lawyer’s motive, be unethical? I don’t think so.
What if he intentionally declined to use his real photo as a “profile picture,” however, opting instead for the Facebook default avatar? Would this constitute sufficient intent to deceive, under the Committee’s reasoning, to constitute ethical misconduct?
The Philadelphia Bar opinion was the first to tackle Facebook ethics in a legal context. The Committee’s members were making assumptions about how private Facebook is, and may have been placing more emphasis on the term “friend” than is warranted when discussing social networking. Based on the opinions of the lawyers I’ve been talking with, it is fair to assume that the Philadelphia Bar’s word will not be the last on the clash between Facebook and legal ethics.
Ethics Alarms 
How about a different analogy then?
Facebook is your house. If you left your front door open all the time, could the lawyer walk in and see and use evidence lying on the kitchen table?
(I think the answer is yes.)
What if you lock the front door and gave his assistant a key, could that assistant use the key you gave her to enter your house and document what she saw?
(I think the answer is yes.)
The burden should be on the homeowner to know who has access to his home and not give keys to strange people, or if he does, to know the consequences of doing so.
Could a lawyer find someone who already has access and pay them to be a mole?
I have to run, and can’t give proper consideration to everything in your post, but I will say that the first example is still unethical, and probably illegal. An open door doesn’t make trespassing legal or right.
Since the Internet is a bit of a “bizarro” world, we have to eliminate “trespassing” from consideration in our analogy. With facebook, if you leave it open, you expect unannounced visitors to come and go as they please. And if you lock it down, giving someone a key means that they can come and go as they please.
Additionally, the friend request process doesn’t lend itself to the requestor presenting motivations and intentions. It’s really an “Up/Down” request unless the target sends them a message to clarify questions they may have.
Here’s another example. Glenn Beck is raising money to support Tea Party Candidate A. He thinks if he walks up to you in the street to ask for a $5 donation, you will say “No”, so he has his producer, who isn’t well known, come and ask you for “…a $5 political contribution.” Your choices are: Say no. Say yes. Ask a question.
Has the producer or Glenn Beck done anything wrong?
No. But he has asked for money, not to look around my house. There are people I would trust to look around my house. Someone posing as one of those people would be tricking me: unethical. Let’s say I generally let ANYONE except those I affirmatively distrust, look around my house. If one of those people who would be an exception—someone I won’t trust— recruited a stranger (and I trust strangers) as his stand-in. Has he done anything wrong?
Of course he has.
I’m far from a legal expert, but doesn’t this really center on what “friend” means on facebook or in real-life? (You seem to at least imply this in your last paragraph.) I think the jury is still out on what a facebook friend is. Some people confine their friend to real-life friends other will add any acquaintances, and yet others will accept almost anyone.
I disagree because of yet another example (i’m sorry!)
A 16 year old has friends over and are drinking in her house, having a wildly good alcoholic time. Doorbell rings and looking through the peephole, she sees a uniformed police officer. She asks what he wants and he wants her to open the door. She cracks the door open wide enough for them to see each other. She hasn’t had anything to drink yet and she is the only person he can see. He asks to be invited inside but she refuses. He has no firsthand evidence that any crime is being committed and leaves. But anecdotally, he knows that kids like to break rules and thinks they have to be drinking. He goes back to the station and picks up the youngest plain clothes detective on the force and the drive back to the house. The plain clothes detective rings the door bell and gives a dashing smile and asks if he can come inside the house. The 16 year old smitten with how cute the young man looks invites him in. Upon entering he sees an obviously young attendee with a beer bottle and proceeds to identify himself as a police officer.
Are you saying the detective is in this case wrong?
Yup. He’s ethically AND legally wrong—police can’t do that. That’s what badges are for. A police officer who gets into your house that way is engaging in an illegal search. Police are like vampires—you have to invite them in. The difference is that there are no vampire ethics.
Hey, I agree that Facebook can be used in nefarious ways, and I address that in my latest post – “Social Media – Not Always a Waste of Time” – and Lawyers, law enforcement and motivated people who have no scruples are always going to abuse or push the envelope.
But the Positives completely out weigh the negatives… and that has to do with the vigilance of the individual to protect themselves, until we all “take it down a notch” to quote John Stewart and learn not to take advantage of others for being open, generous, and nice… which are addressed in the comments on this thread.
AND, another example I thought of, I was friended by a gal about a year ago who was very stereotypically attractive… but after a while I noticed she was giving frequent updates in my newsfeed WITH ALL CAPS ranting on and on about right-wing perspectives, and I soon started to think she was a paid operative of some political organization put there to help Manufacture Consent. I think that would be an interesting Ethic Alarms topic in and of itself, I don’t know how much it has to do with this – but it is a way the system as it is set at this time is being played.
After I posted some counterpoints and links that exposed her spin, I was “De-friended” and now cannot access her wall or friends… she didn’t want debate, she wanted to gather as much of the flock as possible and scrub their brains of any differential opinion.