Ethics charges for two lawyers over Facebook friending a litigant

It was bound to happen sooner or later…

Mary Pat Gallagher of the the NJ Law Journal reports here (subscription required) that two NJ defense lawyers face ethics charges after their paralegal allegedly friended an attorney-represented plaintiff in a personal injury case.

Details on the allegations and some takeaways for both lawyers and HR professionals after the jump…

 

It all started innocently enough…

And then, defense counsel allegedly asked the plaintiff “very specific” questions at deposition that indicated that counsel had gotten the goods from a non-public portion of the plaintiff’s Facebook page. This concern appears to have been validated when the defendant later supplemented its discovery responses with Facebook pages from the plaintiff and his friends.

Thereafter, the plaintiff filed an ethics complaint with NJ’s Office of Attorney Ethics, in which he claims that a paralegal working with defense counsel friended him to obtain non-public information from this Facebook page. The NJ Law Journal article is silent both as to why the plaintiff accepted this friend request.

In any event, the attorneys involved have each been charged with violating multiple provisions of the rules of professional ethics, including those governing communications with represented parties, failure to supervise a non-lawyer assistant, and conduct prejudicial to the administration of justice.

According to the article, the attorneys claim that they merely instructed their paralegal to “perform a broad and general internet search” for information relating to the plaintiff and never instructed her to actually friend the plaintiff. Further, both defense attorneys deny being familiar with Facebook’s privacy settings. Notwithstanding, both dispute that the friend request was pretextual because the paralegal used her real name when making the friend request.

The article concludes by highlighting that while three other bar associations (Philly, NYC, and San Diego) have published ethics opinions on lawyers (and their agents) using Facebook to friend litigants, the NJ Bar does not.

Three takeaways from this story:

1. 1. Lawyers and HR professionals must have a basic grasp on social media. As the report suggests, naiveté has its price.

 

1. Lawyers should not friend represented parties. At the very least, doing so would violate the rule of professional ethics that directly addresses this issue. Similarly, lawyers should not have an agent Facebook friend represented parties. However, IMHO, if a plaintiff, prior to taking legal action, is a Facebook friend of an employee of the defendant, I see nothing wrong with asking (but not requiring) that the employee obtain privacy-protected Facebook information from the plaintiff that is not publicly available in order to use that information to defend the lawsuit. Similarly, I see no reason why the plaintiff couldn’t access private Facebook information that would benefit his/her case from one of the defendant’s employees. I also think it makes sense for plaintiff’s counsel to Facebook friend the client to see what’s there before I do.
2. Lawyers: Do not let anything in this post dissuade you from researching litigants — represented or not — online. Anything public is fair game. I have gotten the goods on many plaintiffs who, intentionally or not, failed to adjust their online privacy settings so that I, and the rest of the world, could see what they have posted. Heck, I would argue that you have an affirmative duty to conduct a diligent online investigation. Otherwise, you may miss ascertaining valuable online information relating to your case. Plaintiffs’ bar, for heaven’s sake, tell your clients to adjust their Facebook privacy settings.

Tangentially related, in the HR space, I believe that, generally, HR should not be Facebook friends with employees. I actually get this question a lot from HR professionals: Should we friend our employees? Certainly don’t require it as a condition of employment. And don’t do it to keep tabs on them. (Although, I think that it is fine for workplace friends to be Facebook friends too. I am Facebook friends with some of my colleagues).

How could using Facebook to monitor employees backfire? Imagine a situation in which HR friends two employees, one of whom was sexually harassing the other on Facebook. HR misses the sexual harassment. The victim never complains and, instead, files a lawsuit. The victim may be able to successfully argue that the company should have known about the sexual harassment, but did nothing to stop it. That would negate a critical employer defense.

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