Lawyers, including the 180,000+ active attorneys in California, must be candid and honest at all times. Governing ethics rules make clear that a trial lawyer shall employ “means only as are consistent with truth” and shall not seek to mislead the judge or jury “by an artifice or false statement of fact or law.” (California Rules of Professional Conduct (“CRPC”) 5-200(A), (B).) California Business and Professions Code § 6068(d) echoes this standard.
Notwithstanding these rules, the Internet is a place where many lawyers have stooped to dishonest tactics. After all, a treasure trove of information valuable in litigation is available online, just a click or two away. Lawyers must know how to access this information ethically.
A prime example is “false friending.” Five years ago, a New York State Bar committee determined that it is ethical for lawyers to search the public portions of social networking sites looking fore damaging information to use against their opponents in lawsuits. (See N.Y. State Bar Ass’n Comm. On Prof. Ethics, Op. 843 (2010).) However, many lawyers look beyond the public portion of websites to gain access to private information. The most common example: seeking out Facebook posts about people who are parties or witnesses in pending litigation. “False friending” is rampant, as lawyers strategize ways of getting around Facebook’s ever-changing privacy settings. The technique tends to work because many users routinely accept friend requests even if they don’t recognize the requester. Often attorneys will pose as someone else out of fear that the targeted person will recognize their real name. Or they might arrange to have a third party, such as an assistant, send the request. Though not all jurisdictions agree, the growing consensus is that in most cases this deceptive type of activity violates a lawyer’s duty of candor.
A breakdown of some of the seminal ethics opinions on this and related issues:
- Phila. Bar Ass’n Prof. Guidance Comm. Op. 2009-02 (2009): The Philadelphia Bar Association considered whether a lawyer could have a non-lawyer assistant “friend” a witness on Facebook and MySpace (in order to access nonpublic information on the witness’s website pages for use against the witness in litigation) without explaining the reason for the contact or disclosing the identify of the assistant’s employer. The opinion concluded that this conduct would violate several professional conduct rules because it involved dishonesty. It violated ABA Rule 8.4(c) because it constituted deceptive conduct by the lawyer’s assistant (omitting a highly material fact). Moreover, because the lawyer was acting in a supervisory capacity, ABA Rule 5.3 dictates that an attorney can be held responsible for any assistant’s deceptive actions. In addition, the conduct would violate ABA Rule 8.4(a), which states that it is professional misconduct for a lawyer to personally violate the rules or “knowingly assist or induce another to do so, or do so through the acts of another.” Finally, the opinion concluded that the conduct would also violate ABA Rule 4.1 because it “constitutes the making of a false statement of material fact to the witness.”
- N.Y. Cnty. Lawyers Ass’n Formal Op. No. 737 (2007): The New York County Lawyers’ Association reached a different conclusion than the Philadelphia Bar Association, approving of the use of deception in a limited situation regarding investigation of civil rights or intellectual property right violations that were imminent or actually taking place, and in the absence of other methods of obtaining the evidence.
- New York City Bar Ass’n Formal Op. 2010-2 (2010): The panel here concluded that an attorney, or his or her agent, may send a friend request to an unrepresented party using the attorney’s real name to obtain such information. The opinion further stated that such a request does not need to specify the reason the attorney is making the request.
- San Diego Cnty. Bar Ass’n Legal Ethics Op. 2011-2 (2011): The San Diego opinion reached the opposite conclusion of the New York City Bar Association, opining that an attorney violates the duty not to deceive when a friend request is sent – either to a represented or unrepresented party – on Facebook without disclosing the sender’s motivation. The San Diego opinion also noted that friend requests to represented parties violate the rules that require such contacts to be routed through counsel.
The takeaway: (1) Lawyers must work diligently to be technically savvy, especially with matters concerning e-discovery; and (2) any lawyer contemplating cyber sleuthing must be aware of, and consider, the ethical parameters that govern online conduct.
Source: Patrick, Wendy L., “Ethics and the Internet,” California Lawyer, Vol. 35, No. 1, January 2015, Los Angeles: Daily Journal Corporation, pp. 34-37.
Uploaded by Adam Nicolai, esq., February 22, 2015