Attorneys often research adverse parties online to obtain potentially useful—and publicly available—evidence for use in a case. But, as an ethical matter, may an attorney access information available only through an adversary's private social media account?
The New Jersey Supreme Court just considered this question in a professional-misconduct complaint involving "Facebook spying" of a plaintiff by opposing counsel. In a recent ruling, the court held that attorneys who access an opposing party's private Facebook account without proper consent may face discipline for unethical conduct.
The disciplinary case arises out of a personal injury matter, in which the plaintiff sued the borough of Oakland, New Jersey, over injuries he sustained after allegedly being hit by a local police cruiser in 2007. Although the plaintiff had a private Facebook page, the borough's defense attorneys enlisted a paralegal at their firm to send a Facebook friend request to the plaintiff. The paralegal did not identify herself as an agent of defense counsel, and the plaintiff accepted the paralegal's request without realizing that she worked for the borough's counsel.
But when the defense attorneys later sought to introduce printouts of the plaintiff's Facebook page at trial and included the paralegal on their witness list, the plaintiff realized that opposing counsel had been spying on him through the paralegal.
The plaintiff brought the conduct of defense counsel to the attention of the New Jersey Office of Attorney Ethics, which is now investigating the matter. The Office of Attorney Ethics alleges in a complaint filed with a state ethics committee that defense counsel had violated numerous New Jersey Rules of Professional Conduct. These violations include, for example, improper communication with a person represented by counsel; failure to supervise a non-lawyer assistant; and engaging in "dishonesty, fraud, deceit, or misrepresentation." The defense attorneys claim that they acted in good faith and that they were unfamiliar with the privacy settings on Facebook.
To be clear, no final decision has been issued on the merits of this case, as the New Jersey Supreme Court's ruling confirms only that the Office of Attorney Ethics has discretion to review the ethics complaint. The case will now proceed to a merits hearing.
But even if New Jersey has yet to rule definitively on the ethics of social media spying, existing guidance offers a cautionary note. For example, the New York City Bar Association has stated that "[a] lawyer may not attempt to gain access to a social networking website under false pretenses, either directly or through an agent." Similarly, the Massachusetts Bar Association has stated that party counsel may "friend" an unrepresented adversary only when that lawyer discloses his or her identity as the party's lawyer. Likewise, the Philadelphia Bar Association has held that an attorney may seek access to the private social media page of a witness only by doing so "forthrightly," or by revealing that he or she is an attorney in the litigation.
Attorneys would do well, therefore, to ensure that they do not contact an adversary on social media—and especially not without first identifying whom they represent. Engaging in subterfuge to gain access to the private social media site of an adversary is likely to get you into hot water.
Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.
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