The explosive growth in Facebook and MySpace pages has created a fertile ground for evidence-gathering by trial lawyers. However, these websites enable users to establish privacy settings, and to serve as “gatekeepers,” to control who can gain access to their posted material. One privacy setting limits access to those whom the user has accepted as a “friend.” An attorney who is not on the user’s “friends list,” in theory, could effectively circumvent the user’s gatekeeping by asking a third party to send a friend request to the user. Many social networking users are not particularly selective when it comes to making “friends.”

The Philadelphia Bar Association’s Professional Guidance Committee recently addressed the ethics of this strategem, cautioning that it is unethical for an attorney to use a third party to “friend” a Facebook user who is a litigation witness for purposes of obtaining information that the attorney might use to impeach the witness.

The Committee’s advisory opinion found that an attorney violates rules of professional conduct by gaining access to a private (“invitation only”) social network site by way of deception. Specifically, the opinion explains that by not disclosing to the potential witness the third party’s affiliation with the attorney, the attorney has omitted a “highly material fact” and has “purposefully conceal[ed] that fact from the witness for the purpose of inducing the witness to allow access.” Presumably, had the witness known the “whole story” and the true motivation behind the third party’s friend request, the witness would not have permitted access to his or her social network profile.

Importantly, the advisory opinion distinguishes such invitation-only websites from, for example, videotaping a potential witness in public – again, with the intent of using that information to impeach the testimony of the witness. The attorney who retained the videographer acts ethically because the videographer records the witness’s activity only in public spaces to which access is not restricted. By contrast, through security settings, social network sites are not open to anybody and everybody.

Although the Bar Association’s advisory opinion is not binding on the Disciplinary Board of the Pennsylvania Supreme Court or any court, the opinion does provide a clear message to in-house employment attorneys and outside counsel – namely, that they should proceed with caution before attempting to access a social networking profile or other on-line forum that is password protected or otherwise restricted. This note of caution is even more directly relevant in the context of litigation, where specific rules of evidence and overarching rules of professional conduct are in place.

For additional insight into this developing area, see our earlier entry "No Invasion of Privacy for Publication of MySpace Posting."

This entry was co-authored by Philip L. Gordon and Richard L. Sloane.