A lawyer who wants to see what a potential witness says to personal contacts on his or her Facebook or MySpace page has one good option, a recent ethics opinion suggests: Ask for access.
Alternative approaches, such as secretly sending a third party to “friend” a Facebook user, are unethical because they are deceptive, says the Philadelphia Bar Association in a March advisory opinion.
Not telling the potential witness of the third party’s affiliation with the lawyer “omits a highly material fact, namely, that the third party who asks to be allowed access to the witness’s pages is doing so only because he or she is intent on obtaining information and sharing it with a lawyer for use in a lawsuit to impeach the testimony of the witness,” the opinion explains.
“The omission would purposefully conceal that fact from the witness for the purpose of inducing the witness to allow access, when she [might] not do so if she knew the third person was associated with the inquirer and the true purpose of the access was to obtain information for the purpose of impeaching her testimony.”
Facebook and MySpace profiles are different from public spaces where one can freely film and record others, the opinion says, because an invitation is required to access them, notes a Social Media Today post on the opinion.
(From the ABA Journal)