Dr. Seuss, Cheese and Social Media, Part II: Ethical Pitfalls, Pretexting and Duties of Candor

 Imagine the following eloquent cross-examination:

ATTORNEY SAM: Good morning, Witness. I am Sam. Do you like green eggs and ham?
WITNESS: I do not like them, Sam-I-am.
ATTORNEY SAM: Would you eat them in a house?
WITNESS: I would not eat them in a house.
ATTORNEY SAM: Would you eat them with a mouse?
WITNESS: I would not eat them with a mouse.
ATTORNEY SAM: Would you eat them here or there?
WITNESS: I would not eat them here or there. I would not eat them anywh --

Why the sudden break in testimony? Because last month Attorney Sam managed to get Witness to "friend" him on Facebook, and he is now holding up the fruits of that endeavor as Exhibit A -- a photograph posted on Witness's page in which he is . . . eating green eggs and ham.

Part One of this article discussed how an attorney's use of social media can lead to breaches of confidentiality, conflicts of interest, unintended relationships, and improper advertising. But as comprehensive as this list seems, additional ethical issues can rise out of an attorney's immersion in social media.  These problematic issues include misrepresentations made to third parties on social media and violations of one's duty of candor to the court.  

1.  False and Misleading Behavior (Pretexting):  The ABA Model Rules of Professional Conduct ("ABA MPC") for lawyers are full of prohibitions against attorneys engaging in various types of false and misleading statements.  For example:

  • ABA MPC Rule 4.1: Attorneys cannot make false, material statements to a third party.
  • ABA MPC Rule 4.2 -- Attorneys cannot communicate with a represented person.
  • ABA MPC Rule 4.3: Attorneys cannot misrepresent their role or disinterestedness to an unrepresented party, and must correct any misunderstanding as to these issues.
  • ABA MPC Rule 5.3: Attorneys are responsible for the conduct of a non-lawyer assistant and must make reasonable efforts to ensure the person's conduct is compatible with the lawyer's professional obligations.
  • ABA MPC Rule 8.4(c): Attorneys cannot engage in conduct involving dishonesty, fraud, deceit, misrepresentation, or encouragement of such.

In today's cyberworld, every single one of these rules can be evoked when an attorney engages in pretexting, which raises ethical concerns relating to contacting opposing parties and gathering information without full disclosure or consent.

What is pretexting? The long, boring answer: obtaining personal information under false pretenses, usually by concealing one's identity or intent. The short, more interesting answer: the Hewlett-Packard (HP) scandal of 2006. HP spied on its own directors' personal phone records to determine who was leaking company information, by having private investigators call up phone companies, pretending to be the directors who were seeking their "own" records. Criminal charges were brought against the HP Chairman of the Board, Patricia Dunn, the alleged brains behind the investigation. The charges were eventually dropped "in the interests of justice," but not before Dunn was pressured to step down as Chairman.

While the HP scandal did not concern social media, it brought the growing practice of pretexting to the forefront -- a problem that has been magnified in the online context. People, after all, are easier to deceive in a virtual world.  It would be simple for Attorney Sam to create a false Facebook page in order to get our Witness to accept his friend invitation. The end result: the incriminating impeachment photo.

Did Attorney Sam act improperly? Most likely. Bar associations and courts are bearing down heavily on pretexting lawyers. While it is fine if the social media page is public, like a blog or an open Facebook page, see, e.g., NY State Bar Ass'n Comm. on Prof. Ethics, Op. 943 (Sep. 10, 2010), if the attorney must interact with the person to gain access (i.e., "friending"), the pretexting would likely violate one or more ABA rules.

"But wait," Attorney Sam might say. "I may not have told him who I was, but Witness accepts friend invitations from everyone, even people he doesn't know!" Too bad.  The pretexting still involved "dishonesty, fraud, deceit or misrepresentation." See, e.g., Philadelphia Bar Ass'n Prof. Guidance Comm. Op. 2009-02.  Whether Witness might still have accepted Attorney Sam's invitation if he knew of his identity, is irrelevant. Id.  Similarly, at least in Philadelphia, even where the attorney is honest about who he is when making a friend request, an attorney must make full disclosure of his motive, otherwise the request is deceitful since the attorney is concealing a highly material fact -- that he is trying to obtain impeaching testimony. Id. Luckily for Attorney Sam, New York has come out a different way. There, if an attorney uses his real name and profile without disclosing the reason, no ethical violation may be found if the person being friended is an unrepresented party. See NYC Comm. On Prof. and Jud. Ethics 2010-2 (Sep. 2010).

"Wait!" Attorney Sam says again, eager to remove all doubt. "Maybe it wasn't me who made the friend request. It was my private investigator, who also doubles as my paralegal!" But if the paralegal or investigator engages in this conduct at the attorney's request, and possibly even without his express knowledge, the attorney is still on the hook -- for example, under Rules 5.3 and 8.4(c).  There are, however, limited exceptions. Remember, as set forth in Part I, that this case by Cheese, Inc. is a patent infringement case, and might have overtones of trade secret issues. Some bar association ethics committees allow for pretexting when investigating violations of civil or intellectual property rights.  New York is one example.  See, e.g., NY Cty Lawyers Ass'n Comm. on Prof. Ethics No. 737. Similarly, in Alabama, "[d]uring pre-litigation investigation of suspected infringers of intellectual property rights, a lawyer may employ private investigators to pose as customers under the pretext of seeking services of the suspected infringers on the same basis or in the same manner as a member of the general public." Alabama State Bar Office of the Gen. Counsel Op. 2007-05.  This ruling has been found applicable to social media.

In short, friending witnesses or anyone else involved in the case is risky. The law is still not quite settled. Until it is, better safe than sorry.

2.  Duty of Candor.  In addition to a duty not to make false statements to third parties, a lawyer also has a duty of candor to the court:

  • ABA MPC Rule 3.3(a): A lawyer shall not knowingly . . . make a false statement of fact or law to a tribunal . . .

While social media does not necessarily cause an attorney to violate this duty, it does make it easier to be caught with one hand in the cheese cabinet. A prime example is an attorney who asked Judge Susan Criss of Galveston, Texas state court, for a continuance because of the death of her father. Judge Criss peeked at the lawyer's public Facebook page during the week of the alleged funeral, and found that she had posted a string of status updates detailing her week of drinking and partying.

Attorneys might rail against the unfairness of judicial intrusions upon their Facebook pages. But at least one court has held that attorneys likely have no "reasonable expectation of privacy" on social media despite whatever privacy settings they employ, since Facebook and MySpace do not guarantee "complete privacy." Romano v. Steelcase, 907 N.Y.S.2d 650, 655 (2010). This was proven again just this past week on July 20, 2011, when police found an escaped drug offender lunching with his Oklahoma lawyer a day after he escaped from jail -- in part because they discovered that the lawyer had posted a Facebook photo of the two of them together.

In short, lawyers who use social media -- whether personally or for investigative purposes -- should therefore be careful:  sometimes it is not possible to both have your green eggs and ham, and eat them too. 

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Coming soon, the final installment of our "Dr. Seuss, Cheese, and Social Media" trilogy, on what happens when attorneys discuss or contact judges on social media.