According to BNA’s Privacy Law Watch, the Philadelphia Bar Association’s Professional Guidance Committee has declined a lawyer’s plan to collect information about an adverse witness by hiring someone gain access to the witness’ social networking web sites.
The attorney asked for permission from the Bar Association’s committee before implementing the plan of hiring a third party to befriend the 18-year old witness online, and thereby get access to the witness’s Facebook and MySpace accounts.
In advising the attorney against this plan, the committee noted that the attorney would be responsible for any unethical actions of the third party under Pennsylvania Rule of Professional Conduct 5.3 (Responsibilities Regarding Nonlawyer Assistants). The plan of pretending to "friend" the witness would violate several other Pennsylvania Rules of Professional Conduct including:
- 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation),
- 4.1(a) (knowingly making false statements of material fact to third person), and
- 8.4(a) (violating rules through acts of another).
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Read the full opinion online.
Note that the opinion cites to an article in the Georgetown Journal of Legal Ethics entitled: "Ethical
Responsibilities of Lawyers for Deception by Undercover Investigators and Discrimination Testers: An Analysis of the Provisions Prohibiting Misrepresentation under Model Rules of Professional Conduct."