The small act of sending someone a friend request in litigation could get you into big trouble. Before selecting the little blue “Add friend” button on Facebook, take a moment to consider the serious ethical violations that may result from sending a friend request.
Let’s say you represent Acme Corp. One of Acme’s employees left for a competitor and Acme is now losing customers to it. You sued the former employee for tortious interference with Acme’s customers. After filing the complaint, you learn the former employee is “Facebook friends” with his new coworkers (potential witnesses) and some of Acme’s customers. You want to investigate the former employee’s Facebook profile to obtain information about the case, but the former employee’s Facebook privacy settings prohibit you from seeing most of his Facebook profile.
Ethical Pitfall 1: Friend request from an attorney to an opposing party
You might consider sending a friend request to the former employee in order to obtain access to the profile. If you visit the profile and select the “Add friend” button, Facebook will generate a message to the former employee that says “[Your Name] wants to be friends.” If the former employee accepts your request, you will be able to access the Facebook profile. But be careful.
By sending the opposing party a friend request, you may violate the ethical rule prohibiting ex parte communications with a represented party. Rule 4-4.2 of the Florida Rules of Professional Conduct states that a lawyer must not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter. By sending a friend request to the former employee, you will have sent an electronic communication to the represented party that was motivated by the quest for information about your pending case. You might therefore violate Rule 4-4.2 if the former employee is represented by counsel.
Ethical Pitfall 2: Friend request from a third party to an opposing party
You might realize that it is unlikely that the opposing party would accept your friend request, even if an attorney does not represent the opposing party. You might therefore consider asking a third party, perhaps your paralegal, assistant, or a mutual real life “friend” of the former employee, to send a friend request to increase your odds that it will be accepted. You might consider having that third party supply you with information on the former employee’s Facebook page. But you might want to think twice.
Rule 4-8.4 prohibits a lawyer from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. Multiple ethics opinions have advised that an attorney may violate this rule by asking a third party to send a friend request on an opposing party or witness for purposes of obtaining information in litigation if the third party does not identify as an agent of the attorney or fails to disclose that the friend request is made for purposes of obtaining information in the litigation. Therefore, if you try to increase your chances of gaining access to the former employee’s Facebook page in a manner that circumvents Rule 4-4.2, you might violate Rule 4-8.4 by engaging in deception.
Ethical Pitfall 3: Friend request to a witness without explaining the purpose
You might also send a friend request to a witness (perhaps an employee of Acme’s competitor who you have not sued) who just might be “Facebook friends” with the former employee and have information on his or her Facebook profile that can help your case. But watch out for one final ethical trap.
Rule 4-4.1 prohibits a lawyer from knowingly making a false statement or failing to disclose a material fact to a third person. The second part of that rule is the key. Some opinions caution that by not disclosing to the witness that the reason you are sending a friend request is to obtain information in pending litigation, you may be failing to disclose a material fact. This information would be important for the witness to decide whether to provide access to his or her Facebook profile—and, therefore, may be a material fact that must be disclosed under Rule 4-4.1.
These ethical pitfalls can be avoided by sending formal written discovery, such as a request for production to the opposing party or a subpoena to the witness. But if you chose to make new “friends” in litigation, be sure to navigate around these ethical pitfalls to avoid serious legal consequences.