Lawyer Cannot Ask Paralegal to "Facebook Friend" A Witness

After the flood of attention which lawyers and the media have recently paid to social networking sites, the next logical emphasis will be the ethical use, and mis-use, of such sites by lawyers.

Trying to jump start that inquiry, in Internet Social Networking Sites for Lawyers, we hinted at the risks of Facebook-friend’ing prospective jury members (improper contact under Rule 4-3.5) and we raised concerns about the use of social networking sites being deemed as advertising violations (Rules 4-7 and 4-15).  Indeed, in a recent presentation, we even discussed whether a law firm could revise and tailor its website prior to trial.  We also proposed to a paralegal group that they could not anonymously send Facebook-friend requests to jury members.

But we were clearly not thorough nor quick enough.  The Philadelphia Bar Association Professional Guidance Committee hustled out its Opinion 2009-02 which held that a lawyer could not ask a “third person” (presumably a paralegal or office employee) to Facebook-friend a deposition witness so the lawyer could surreptitiously access the witness’ Facebook page.

For the uninitiated, the default setting on a person’s Facebook page is that only invited/permitted users can see the page.  To gain access, a user needs to send a “Facebook friend request.”  That request usually is accomplished by clicking a button which says “send Friend request.”   There is a discreet link which says “Send a Personal Message” where the pursuing user can enter a greeting or identification or some kind but, at least anecdotally, this is rarely used.  The receiving user can see the name, picture, and a brief description of the person sending the friend request.  That person can then “confirm” or “ignore” the request.  For a good summary of this process, look here.

Here, the lawyer believed the deponent had information on her web page and somehow believed she would accept just about anyone as a Facebook friend (presumably there was some discussion as to the number of Facebook friends or her Facebook practices).  In person, the lawyer did not ask to be a Facebook-friend.  Instead, the question was raised whether the lawyer could properly have a third person send the request — a person who the witness would likely not be able to identify as someone associated with the lawyer.  The obvious intention was that the Facebook-promiscuous user would blindly accept the friend request, thereby giving the lawyer access to the page.

The Philly Bar concluded that this was improperly deceptive under their Rule 8.4, which is nearly word-for-word identical to Florida Rule Regulating the Florida Bar 4-8.4.

First, the lawyer was responsible for the acts of the third person since the lawyer was asking for and ratifying the conduct.  Second, the lawyer was purportedly “engag[ing] in conduct involving dishonesty, fraud, deceit or misrepresentation… because the planned communication by the third party with the witness is deceptive [because] it omits a highly material fact, namely, that the third party who asks to be allowed access to the witness’ pages is doing so only because he or she is intent… on sharing it with the lawyer for use in a lawsuit to impeach the testimony of the witness.”

Unlike that Bar, we note that Facebook friend request typically do not involve an explanation / introduction and question whether this is truly “hiding” information.  Then again, in a non-virtual world example, a lawyer asking another person to cozy up to a witness at a bar to get information seems improper.  Your thoughts?  Comments welcome below.

Source: Florida Law Commentary

Comments

[Maube Mor]

This is very timely. It has come up in my job and I would like to check my local statues and/or opinions to cite to my boss. One part of me is noisy and what's to check out what a particular individual in doing and the other part of me just thinks 'eewwww' not good.

[Jeff Stein, LPI]

Excellent Article, thank you for posting. This is a great article, that I would like to share with my network on facebook.

Jeff Stein, LPI
ELPS Private Detective Agency
Exton, PA 19341
jstein@ELPSPDA.com
Office: 610-241-8084
Cell: 484-364-6247
Fax: 214-594-4362

Visit our website at: www.ELPSPDA.com

[Vicki Voisin, The Paralegal Mentor]

Great information! I am speaking at the Annual Convention of the National Association of Legal Assistants in July. My topic? Social Networking: Not Just For Kids Any More. While social networking can be fun and important to career advancement, the ethical use of social networking should always be considered.

[Andrea Marie Fisher]

If you are on Facebook, and the names listed in your Facebook friends list are REAL and you have tangible "real" proof that you know them, it may be a trademark. Based on this article and my interpretation it is stating that in the Philadelphia Federal Rules of Civil Procedure if it is a trademarked NAME then they are and can be used in a legal setting in which they can be subpoenaed, no matter what jurisdiction they live in, right?

No, if your name is a trademark (like a law has been created for you to protect you), you have tangible proof that it is a real living breathing person you cannot sue.

Based on this article it states ONLY in the the JURISDICTION of PHILADELPHIA not the state of Pennsylvania this law applies. It is my belief you must have residency in that jurisdiction for this law to apply. In order to protect trademarked names (in which a viscious and hateful crime has already occured) you must create or have a federal statute for those individuals that are or deemed to be a trademark. This means that the person in which the federal statute was created, has protection in any state and in any jurisdiction in which they reside, for life. And the law may provide (based on how its written) protection for their children and immediate family members for life. This may also be a non-blood relative, if it is in reference to due harm.

For example, stalking a person, is due harm and intentional infliction of emotional distress. Then this applies to a federal anti-stalking law.

Example one is if Geward is going for a country drive and does so every day. This is what they all do on the weekends. If Geward is driving on any road and is not on a person's land it is not stalking or due harm. Now Tress the neighborhood busy body is saying all the neighbors not Yena again. Because Tress knows of Yena in the community she may have appeared to cause due harm for Yena's name, that is trademarked.

This action or behavior could be deemed as any one thing. It could be looked as a person confused, lost, or just plain going for a drive on a road. Or maybe Yena has always driven on a particular street at a particular time, but no one knows it and no one has prior knowledge then it means nothing, but the person in the window decides she just can't stand Yena. Calls the cops it looks like Yena and the car looks like Yenas, but I just can't tell anymore it is Yena's car or if it Yena at all. Tress has no prior knowledge that Yena is driving down the street to go to work or meet a client. Then no consent from a citizen is necessary, there is no due harm and the actions of Tress the neighbor may be deemed as criminal in nature.

The correlation between the illustrated examples and a trademarked name is if a person comes to you and says, listen my name is Felix Num Dimp, he has tangible proof he's Felix Num Dimp, he's thinks he knows you and friend requests you through Facebook, then he's done NOTHING illegal. It is just a form of an application within Facebook and a means to reunite them with someone they believe is a friend of theirs.

What if, Felix Num Dimp, gets into a car accident, incures a slight brain injury and a severe cuncusion in which the memory of who they know is "fragmented." They find out that the car accident was NO accident and the person who caused the car accident was someone who was a former stalker and who has or may have a vendetta against you, that they never forgot, then you are now placed in a position where your name "may" be placed in the victims crime act based on jurisdiction. When this happens, you are still Felix Num Dimp, but the name of the person now must be changed, not in a public nature, to protect him from the stalker and person who caused him past due harm.

Now Felix gets a phone call from his best best friend and says listen I know you had a bad time the last few months, go on Facebook, look up some friends from high school and maybe you'll feel better about yourself. You do so, and friend request a person. That person remembers you and thinks you are the biggest idiot on earth, and always hated you. You can't remember anything, but their name based on the picture shown, because of the car accident in which you sustained a brain injury and a severe concusion. The person denied your request, but you are super friendly and try again, because you have NO PRIOR KNOWLEDGE that this person even hates you much less thinks your and idiot. The person you friend request tells all your friends on your Facebook page how much of a dope you were in high school. Felix Num Dimp now has grounds for a law suit. His name has been slandered "publicly" in a forum that everyone can see. Once it becomes public nature, its a tangible piece of proof that not only do people not like you, that they still think you are a dope. The friend Felix has friend requested has denied its friendship, and Felix goes, oh well. Two weeks later Felix sees a chat dialog in which the friend he tried to reunite himself with, slandering his name. The chat dialog could be deemed for him or someone he knows, but after reading in its entirety realizes not only do they know him, they think he's a bunny boiling in hot water. This is grounds for slander on a trademarked name and may be deemed as criminal in nature depending on the jurisidiction of Felix and the participants in the Facebook chat dialog, but Felix is an easy going chub and decides to overlook the nature of the conversation and the participants, as time goes on, because they have chosen to unlink them from their Facebook friends list.

In conclusion, a friends request is not harrassment. Its a request. Requests in Facebook can be denied and are not grounds to a civil or criminal suit in any way. One more note, if you have a legal name in which is protected by the government in which you have been defamed, a law has been created to protect you, such as the Victims Crime Act, (ahem) you must abide by the "FEDERAL" laws that were created, prior to becoming of legal age.

I have a legal name, a full name and a name I use in public in which I drop my middle name. You can not sue me for example because the law that was written, provides me protection, or so I thought in a way that a lawsuit can never be created ever.