ARE THERE OTHER BENEFITS TO USING SOCIAL NETWORKING?
Social networking sites have been an invaluable tool for many attorneys performing research on already contested matters. For instance, if a matrimonial attorney wishes to view the Facebook page of a client’s estranged spouse to look for evidence of infidelity, there are potential conflicts with ABA Model Rule 4.2, which prohibits communication about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter. As described below, the prohibition on communication is not violated by any exchange of words, but simply through the click of a mouse when an attorney seeks access to the party’s pre-existing social networking site.
Although many State Bar Associations are silent on this matter, the question seems to turn on the “private” or “public” status of the target individual’s Facebook account. Facebook, like most all social networking sites, allows users to set the contents of their profile to “public” (where anyone can view its contents), “private” (where only the approved friends of the users can view its contents), or some variation in between, which would allow the users to pick and choose which users of the site may view the contents of their personal page.
The Oregon State Bar Association, for instance, has allowed a lawyer to view the personal page of an opposing party if the page is set for “public” viewing. In allowing the information on such a public page, the Oregon Bar Association likened the material to a “magazine article…written by an adversary” and would therefore not violate ABA MR4.2. However, if the attorney must interact with a represented party – such as via some required approval by the target user in order to gain access to the party’s social networking page (or a particular post) – that conduct would specifically violate ABA MR 4.2. As the Oregon State Bar Association made clear in its January 2001 ruling, any lawyer (or lawyer’s agent) who makes a Facebook “friend request” to a represented party in a contested matter will violate 4.2’s prohibition on contact.
Other ethical violations have resulted from variations on this same situation. The Philadelphia Bar Ethics Committee held that a lawyer could not use a third party to “friend” an adverse witness, in an attempt to find evidence to impeach the witness, on a social networking site. Because the act of in question (the Facebook friend request) omitted the material connection between the third party and the lawyer, as well as the intent to gain information for purposes of the litigation, the communication was deemed to be “deceptive” and thus a violation of 8.4.