The Ethics Of 'Friending'

As users constantly update their Facebook and other social networking profiles, they may be unwittingly doing something else as well: creating a cache of evidence for a future adversary to use against them in discovery and at trial. Trial courts have increasingly allowed parties to discover the private portions of social networking sites when doing so would likely lead to the disclosure of admissible evidence.1 In the common scenario, a party observes information on the public portion of their adversary's profiles that tends to undercut that adversary's claims' such as pictures of a plaintiff skiing after claiming to have devastating injuries' and present such information to the court as the "factual predicate" that establishes the potential relevance of the private profile.2 While most courts will not allow a party to simply conduct a "fishing expedition" into their adversary's private digital lives, nor will they declare such information categorically undiscoverable.3

Yet the abundance of information stored on an adversary's private social network profile may unfortunately also subject a party's attorney to a dangerous temptation. Often, a user's private social networking data is available to any person with whom that user is connected on that social network, while only a limited amount of information is available to the public at large. Networking sites' privacy settings allow the individual user to modify what is and what is not available to different categories of viewers. The crafty lawyer, then, needs only connect to their client's adversary via such social networking site' the process referred to as "friending" on Facebook. If the unwary adversary accepts the lawyer's "friend" request, the lawyer will thus be privy to a range of photos, status updates and more, that were once private but, upon successful friending, are now wholly accessible. Such conduct, however, may likely be unethical.

As the New Jersey Law Journal recently reported, two New Jersey lawyers have been charged with ethics rule violations for allegedly directing a member of the firm's non-lawyer staff to "friend" their client's adversary without disclosing that staff-person's affiliation with those lawyers.4 The law firm's paralegal was tasked to perform social media research concerning a medical malpractice claimant, and first scanned the publicly available material on the plaintiff's Facebook page. According the complaint, she proceeded to "friend" the claimant...