July 21, 2009

“Facebook” and/or “MySpace” accounts contain a plethora of personal information. Attorneys have begun to take advantage of this and are seeking discovery of this information. This information can be particularly helpful in impeaching a witness.

Accessing accounts on “Facebook” and/or “MySpace” in order to obtain relevant evidence presents a number of ethical questions. Before accessing this information an attorney should take into consideration the Pennsylvania Rules of Professional Conduct. An attorney should pay particular attention to the way in which the account is accessed to avoid violating the Rules of Professional conduct.

For example, an attorney asks a 3rd party, someone whose name the account holder will not recognize, to access the account and seek “friend” status with the account holder in order to obtain the ability to view the account holder’s personal information. This action could very likely constitute a violation of Rules 5.3 “Responsibilities Regarding Nonlawyer Assistants” (A lawyer shall be responsible for conduct of such a person that would be a violation of the rules of Professional Conduct if engaged in by the lawyer if: the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; …); Rule 8.4 “Misconduct” ( It is professional misconduct for a lawyer to violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so , or do so through the acts of another; … engage in conduct involving dishonesty, fraud deceit or misrepresentation) and Rule 4.1 “Truthfulness in Statement to Others” ( In the course of representing a client a lawyer shall not knowingly. … make a false statement of material fact or law to a third person ; …)

The 3rd party’s failure to disclose the true purpose behind his request (obtain information for the attorney for purpose of litigation) to be recognized by the account holder as a “friend” may constitute one or more of the following: dishonesty, deceit and misrepresentation. Consequently, the attorney that retained the 3rd party to commit such acts is likely responsible for violating the Rules of Professional Conduct.

In contrast, an attorney that obtains access to an account through a 3rd party that is already a “friend” of the account holder is arguably not violating the Rules of Professional Conduct. There was no deceit or misrepresentation in the 3rd party’s request for access to the account. As a result, the attorney conceivably gained access to information obtained without violating the Rules of Professional Conduct.

The information on “Facebook” and/or “MySpace” accounts can be valuable and need not be overlooked. Attorneys just need to be vigilant that the information is accessed in a manner in which the Rules of Professional Conduct are not violated.

Tiffanie C. Benfer is an associate of Hill Wallack LLP in the Yardley office where she is a member of the Litigation Division and the Employment & Labor Law Practice Group. Ms. Benfer concentrates her practice in Employment Discrimination and Civil Rights & Constitutional Litigation.