Generation J.D.

Earlier this year, the Philadelphia Bar Association’s Professional Guidance Committee was requested to offer its advisory opinion on a novel issue involving social networking sites and witness background investigation.

The question was whether a lawyer could, within the bounds of the Rules of Professional Conduct, ask another person to contact a witness on Facebook or MySpace in order to “friend” them and gain access to the information on their personal profiles.  Its opinion, issued in March, can be found here. (Special thanks to Joseph A. Hennessey of Beins, Goldberg, & Hennessey, LLP for recently forwarding this opinion to the MSBA Litigation Email List).

The situation about which the opinion was written involved a lawyer who had deposed an independent witness whose testimony was adverse to his case.  During the deposition, the attorney learned that the deponent had personal profiles on both Facebook and MySpace.  He accessed those sites to view the profiles, but access was limited to “friends” of the witness.  The attorney wanted to know the ethical implications of having a third party “friend” the witness on Facebook and MySpace for the sole purpose of gaining access to her personal profiles.  The attorney hoped to use the information on the profiles against the witness at trial.

Though non-binding, the Committee opined that the proposed conduct would violate Rules 8.4 (Misconduct) and 4.1 (Truthfulness in Statements to Others) of the Pennsylvania Rules of Professional Conduct.  Those rules prohibit “conduct involving dishonesty, fraud, deceit or misrepresentation,” and the making of “a false statement of material fact or law to a third person.”  It does not appear that the Maryland State Bar Association’s Committee on Ethics has yet addressed a similar issue.  However, Pennsylvania’s relevant Rules of Professional Conduct are identical to Maryland’s, so it is likely Maryland’s Rules would similarly prohibit such conduct.

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