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: Continue reading →