Recent articles in the Daily Report and ABA Journal have focused on lawyers' use of social media to obtain information about a party they don't represent, such as an opposing party. In some cases, lawyers have themselves "friended" an individual on Facebook to gain access to photos, activity and commentary that are not publicly available. In other cases, paralegals or other law firm personnel have initiated such friend requests, sometimes at the direction of attorneys.

The American Bar Association's Model Rule 4.1(a) prohibits a lawyer from making "a false statement of material fact or law to a third person." Rule 8.4(c) forbids a lawyer from engaging "in conduct involving dishonesty, fraud, deceit or misrepresentation." According to state bar associations across the country, these rules may be violated when an attorney (or someone else in the firm) friends an individual under false pretenses. In cases where an individual's Facebook, Twitter or other social media accounts are unprotected and open to the public, there's no issue with using information posted there. The potential ethical violation comes, however, when an "unfriendly" Facebook friend request or Twitter following makes available information the individual deems to be private.

The Daily Report cites the case of two New Jersey defense lawyers slapped with ethics charges for directing a paralegal to "friend" the plaintiff in a personal injury case. The New Jersey Office of Attorney Ethics found the lawyers' actions to be "a ruse and a subterfuge designed to gain access to non-public portions of [the] Facebook page for improper use." The lawyers are fighting the charges.

The bottom line: Attorneys can review social media to see what is in the public domain, but should not "friend" (Facebook) or "follow" (Twitter) any adverse party in a lawsuit. Don't friend, don't follow are words to practice by.

Sincerely,