Ethics Opinion Addresses Whether a Lawyer Can Investigate Someone by Posing as a "Friend" on Facebook
Social networking is all the rage. In a recent survey by The Nielsen Company it was reported that last year people spent almost 14 billion minutes on Facebook, five billion minutes on MySpace, 300 million minutes on Twitter, and 202 million minutes on LinkedIn. So, it stands to reason that there may be information posted to someone’s Facebook page, for instance, that may be relevant in a lawsuit, such as material that might impeach a witness or show some type of illegal activity. But, how do you get access to the information if you’re the attorney handling a matter? If you intend to use the information against someone, and they know that, they will surely not be your “friend.” Can you misstate your identity and intent in order to gain access? Can you hire an investigator to pose as a “friend” and provide the information to you? What if you’re investigating a potential violation of intellectual property rights, or even a possible criminal act?
The Philadelphia Bar Association Professional Guidance Committee recently addressed whether an attorney could hire an investigator to pose as a “friend” for the purpose of gathering information from a third party’s Facebook and MySpace pages. Opinion 2009-02 (March 2009). An attorney had deposed a non-party witness who was helpful to the other side. The witness was not represented by counsel. The attorney knew based on deposition testimony that the witness had both Facebook and MySpace accounts, and firmly believed there was information posted to those pages that could be used to impeach the witness’s testimony. So the attorney asked the Professional Guidance Committee whether they could ethically have a third person, whose identity the witness would not recognize as being associated with the attorney, pose as a “friend” to gain access and gather information from the pages that could then be potentially used against the witness.
The Professional Guidance Committee said “no” based mainly on Rule 8.4 which states that a lawyer cannot “engage in conduct involving dishonesty, fraud, deceit, or misrepresentation … .” The Committee concluded that the proposed conduct would flatly violate this Rule “because the planned communication by the third party with the witness is deceptive.” The Committee rejected the argument that the proposed conduct was similar to hiring an investigator to perform surveillance of a plaintiff in a personal injury case, a practice the Committee acknowledged was common and ethical. In the surveillance scenario, an investigator simply follows the person around and videotapes them in public places. No misrepresentations are made in order to gain access.
How Far Does Rule 8.4 Go? It Depends on What Jurisdiction You Are In
Application of Rule 8.4’s mandate varies greatly across jurisdictions and has led to a significant debate over its appropriate scope. New York County, the District of Columbia, Utah and Arizona have all issued ethics opinions; Oregon, Florida and Alabama have adopted exceptions regarding their respective versions of the Rule; and there is case law allowing exceptions as well, for example, “testers” for investigating fair housing issues. The debate shown by these authorities demonstrates a wide disparity in situations and interpretations.
The New York County Lawyer’s Association Committee on Professional Ethics recently issued a formal opinion that allows non-governmental lawyers to utilize and/or supervise an investigator who employs dissemblance under some circumstances. Formal Opinion No. 737 (May 23, 2007). These circumstances include the investigation of violations of law regarding civil rights and intellectual property.
The District of Columbia Bar’s Legal Ethics Committee concluded in its Opinion 323 (March 29, 2004) that lawyers employed by the government do not violate the Rule’s prohibitions if they engage in “fraud, deceit, or misrepresentation” in the course of their non-representational official duties. The Committee was confronted with the situation where lawyers working for government agencies might be required from time to time to act deceitfully as part of their official duties, and as authorized by other applicable law.
Florida allows an exception related to lawyers employed by the government in a criminal enforcement agency or regulatory agency to advise and supervise others involved in an undercover investigation. It also allows a lawyer employed in a capacity other than as a lawyer by a criminal law enforcement agency or regulatory agency to participate in an undercover investigation.
Perhaps the broadest exception is in Oregon, which allows lawyers to advise and supervise “covert activity” in the investigation of violations of civil or criminal law or constitutional rights. “Covert activity” is defined as “an effort to obtain information on unlawful activity through the use of misrepresentations or other subterfuge.” The covert activity “may be commenced by a lawyer or involve a lawyer as an advisor or supervisor only when the lawyer in good faith believes there is a reasonable possibility that unlawful activity has taken place, is taking place or will take place in the foreseeable future.”
Lawyers should be aware of what the rules in their jurisdiction are when considering the use of a misrepresentation of some type in an effort to gather evidence in a case, whether themselves or through an investigator. In those limited jurisdictions where there is an ethics opinion, case law, or a version of the Rule that allows for an exception, lawyers should be extremely careful to analyze the situation and decide whether they fall within the exception before acting. Social networking sites may provide fruitful ground for information gathering, but attorneys must be aware of the standards that govern their conduct when gathering information.