Many (aside: why isn’t it all?) of us who teach Negotiation spend at least some time on Rule 8.4 (dishonesty, fraud, deceit, misrepresentation) and its relationship to Rule 4.1 (fraud).  The New York City Bar’s committee on ethics just issued an opinion in which it declared that an attorney may attempt to “friend” an unrepresented person or otherwise gain access to social networking information — but only if they do so without false pretenses.  The committee was explicitly concerned that an attorney might feign interest in the same things as the targeted person in order to appear to be a more attractive “friend.”  I wonder if the implications for finding online “friends” are nearly so staggering as the implications for finding real friends…

Opinion available here, excerpt included below.

ABA Journal online story available here.

MM

—–

In this opinion, we address the narrow question of whether a lawyer, acting either alone or through an agent such as a private investigator, may resort to trickery via the internet to gain access to an otherwise secure social networking page and the potentially helpful information it holds. In particular, we focus on an attorney’s direct or indirect use of affirmatively “deceptive” behavior to “friend” potential witnesses. …  It would be inconsistent with this policy to flatly prohibit lawyers from engaging in any and all contact with users of social networking sites. Consistent with the policy, we conclude that an attorney or her agent may use her real name and profile to send a “friend request” to obtain information from an unrepresented person’s social networking website without also disclosing the reasons for making the request.

While there are ethical boundaries to such “friending,” in our view they are not crossed when an attorney or investigator uses only truthful information to obtain access to a website, subject to compliance with all other ethical requirements.

The potential ethical pitfalls associated with social networking sites arise in part from the informality of communications on the web. In that connection, in seeking access to an individual’s personal information, it may be easier to deceive an individual in the virtual world than in the real world. For example, if a stranger made an unsolicited face-to-face request to a potential witness for permission to enter the witness’s home, view the witness’s photographs and video files, learn the witness’s relationship status, religious views and date of birth, and review the witness’s personal diary, the witness almost certainly would slam the door shut and perhaps even call the police.

In contrast, in the “virtual” world, the same stranger is more likely to be able to gain admission to an individual’s personal webpage and have unfettered access to most, if not all, of the foregoing information. Using publicly-available information, an attorney or her investigator could easily create a false Facebook profile listing schools, hobbies, interests, or other background information likely to be of interest to a targeted witness. After creating the profile, the attorney or investigator could use it to make a “friend request” falsely portraying the attorney or investigator as the witness’s long lost classmate, prospective employer, or friend of a friend. Many casual social network users might accept such a “friend request” or even one less tailored to the background and interests of the witness. Similarly, an investigator could e-mail a YouTube account holder, falsely touting a recent digital posting of potential interest as a hook to ask to subscribe to the account holder’s “channel” and view all of her digital postings. By making the “friend request” or a request for access to a YouTube “channel,” the investigator could obtain instant access to everything the user has posted and will post in the future. In each of these instances, the “virtual” inquiries likely have a much greater chance of success than if the attorney or investigator made them in person and faced the prospect of follow-up questions regarding her identity and intentions. The protocol on-line, however, is more limited both in substance and in practice. Despite the common sense admonition not to “open the door” to strangers, social networking users often do just that with a click of the mouse.