Ali, our Millennial attorney, has been hard at work preparing her case. Depositions are about to start and she’s run into a bit of an ethical dilemma. Let’s see if we can help her.
Jamal, the defendant employer who fired Ali’s client for being pregnant (allegedly) will call a former female employee to testify that Jamal has never said anything negative about pregnant women. However, the former female employee has pictures on her Facebook of her on a romantic getaway with Jamal. Ali wants to have a third party “friend” the witness in order to retrieve these pictures and challenge the witness for bias. The third party will not lie but will not disclose her association with Ali. May Ali ethically do so?
Sorry Ali, you can’t. Illinois Rule of Professional Conduct 5.3(b) states: “With respect to a nonlawyer employed or retained by or associated with a lawyer … (b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer.” Rule 5.3(c) states: “a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if: (1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved.”
In this scenario, Ali is requesting that a third party friend the witness. She therefore, is ordering the conduct involved and is responsible for that third party’s conduct.
RPC 8.4(c) then states that “It is professional misconduct for a lawyer to … engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” The third party’s friend request will omit 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 she is intent on obtaining information and sharing it with Ali to use in a lawsuit to impeach the testimony of the witness. The third party is violating RPC 8.4(c) and, pursuant to RPC 5.3(b) and (c), so is Ali.
Although we have no Illinois ethics opinions on this issue, the Philadelphia Bar Association’s Professional Guidance Committee, applying the Pennsylvania Rules of Professional Conduct (virtually identical to those in Illinois), has concluded that the inquiring lawyer could not ethically engage in the proposed conduct. Specifically, the Philadelphia Committee determined that the proposed “friending” by a third party would constitute deception in violation of Rules 8.4 and 4.1, and would constitute a supervisory violation under Rule 5.3 because the third party would omit a material fact. Philadelphia Bar Op. 2009-02 (March 2009)
Ah ha, Ali says, but what if the witness allows access to everyone? There are many Facebook users who don’t care who the person sending the friend request is; they will accept it regardless. The Philadelphia Committee had a response for that as well: “Even if, by allowing virtually all would-be “friends” onto her Facebook and MySpace pages, the witness is exposing herself to risks like that in this case, excusing the deceit on that basis would be improper. Deception is deception, regardless of the victim’s wariness in her interactions on the internet and susceptibility to being deceived.”
The question is not whether it’s possible to do this; the question is whether it’s ethical. And both the Rules of Professional Conduct, and a bar association, state that it is not.
Ali can’t use a private Facebook page to impeach a witness. She will have to get those photos some other more ethical way. Share your thoughts on how she might do that below. Until next time.