Can a lawyer hire a third person to send a “friend request” to a witness? According to an opinion from the Philadelphia Bar Association’s Professional Guidance Committee the answer is no.
Although the information on someone’s Facebook profile is discoverable, a lawyer can’t try to access the page through deception. Although imperfect, I liked this analogy in the Bar Opinion:
The inquirer has suggested that his proposed conduct is similar to the common — and ethical — practice of videotaping the public conduct of a plaintiff in a personal injury case to show that he or she is capable of performing physical acts he claims his injury prevents. The Committee disagrees. In the video situation, the videographer simply follows the subject and films him as he presents himself to the public. The videographer does not have to ask to enter a private area to make the video. If he did, then similar issues would be confronted, as for example, if the videographer took a hidden camera and gained access to the inside of a house to make a video by presenting himself as a utility worker.
This opinion should not affect a workplace from putting a sensible policy in place for dealing with Facebook and other Web 2.0 tools. Make sure you have a Blogging / Social Internet Policy.
- Legal Ethics and Facebook by Andrew Perlman on the Legal Ethics Forum
- Opinion 2009-02 of the Philadelphia Bar Association’s Professional Guidance Committee (.pdf) March 2009