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Arizona State Law Journal
Fall 2011
Comment
FRIENDING, FOLLOWING, AND DIGGING UP EVIDENTIARY DIRT: THE ETHICAL
IMPLICATIONS OF INVESTIGATING INFORMATION ON SOCIAL MEDIA WEBSITES
Allison Clemency a1
Copyright (c) 2011 Arizona State Law Journal; Allison Clemency
I. Introduction
With over 750 million active users on Facebook 1 and 50 million tweets issued daily, 2 social media has become ubiquitous in
modern society. Recent reports indicate that approximately two-thirds of United States citizens who are active on the Internet
also maintain an account on at least one social media site. 3 Not surprisingly, in the near decade since its inception, social media
has revolutionized the manner in which the world receives news, individuals communicate and stay connected, and businesses
operate. 4
Social media has also made its way into the legal community. Many lawyers and judges maintain their own social media profiles
and blogs. 5 A court in Australia even authorized the use of social media to serve a default judgment by posting the judgment's
terms on the defendant's Facebook *1022 wall. 6 But, perhaps the greatest value of social media to the litigation process
is the plethora of information contained on any given social media profile that can serve as evidence--most notably in cases
involving personal injury and divorce. 7
Social media is unquestionably a valuable source of information and potential evidence. 8 Yet, given the various privacy settings
that control access to personal profiles on social media sites, lawyers are often unable to obtain the information contained on
the sites through a general, public Internet search. 9 Rather, they must take further steps to access protected information, and
some of the tactics employed to obtain such information can run afoul of the rules of professional ethics.
For example, suppose that a lawyer has deposed a witness, who mentioned that she frequently used social media websites such
as Facebook and MySpace. The lawyer now wishes to search the witness's social media profiles for possible impeachment
evidence. The witness has her privacy settings calibrated in such a way that the lawyer is unable to access the information
contained on the social media profiles through public searches alone. Subsequently, the lawyer quickly learns that one of his
employees attended the same high school as the witness and has heard that the witness liberally accepts friend requests on the
social media sites to which she is a member. The lawyer then asks the employee to friend the witness on Facebook, assuming
that the witness will accept the request, thus providing the lawyer with access to the witness's otherwise private profile. 10
*1023 The American Bar Association's Model Rules of Professional Conduct (Model Rules) provide a framework in which
to analyze the potential ethical issues that arise in this hypothetical situation. 11 However, social media is still a relatively new
phenomenon in the eyes of the legal community, and the Model Rules and associated interpretations have not yet provided a
comprehensive approach to the use of social media as an investigatory tool. This comment will argue that, when using social

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media for investigatory purposes in civil litigation, lawyers should take a conservative approach to accessing social media
sites through informal discovery, limiting their searches to passive review of publicly accessible pages and requesting further
access only when dealing with pages maintained by unrepresented persons. This comment will further argue that the current
Model Rules provide an adequate framework in which to identify ethical problems associated with social media, but without
further supplementation, cannot sufficiently instruct lawyers on the precise ethical limitations on their use of social media as
an investigative tool.
Part II of this comment provides a brief overview of social media, explaining how social media sites function and the privacy
settings that control information shared on the sites. Part III then details the available mechanisms for conducting factual
investigation on social media sites. Part III also includes a discussion of the ethical pitfalls associated with informal discovery
on social media sites, identifying the Model Rules implicated by such investigations and explaining the current law and
ethics opinions that have addressed similar issues. Finally, Part IV presents the best practices for using social media in fact
investigation under the current Model Rules and explains the need for supplementary standards that dictate how lawyers may
ethically use social media to conduct fact investigation.
II. Overview of Social Media
Social media refers to interactive websites that allow users to connect, communicate, and share information. 12 Most social
media websites allow users to set varying degrees of privacy controls that limit the individuals who may view and interact with
the users on their social media profiles. 13 *1024 Some of the most prevalent social media sites today include Facebook,
MySpace, LinkedIn, and Twitter. 14
Facebook is a social utility that helps people communicate more efficiently with their friends, family and coworkers. 15
Facebook users create profiles that contain personal information, pictures, and a wall on which other users may post
comments. 16 Each user profile is situated within a network--a smaller community, such as a school or professional group,
with whom the user identifies himself or herself. 17 After creating a profile, users can communicate through several features,
including status updates, wall posts, personal messages, and live chats. 18 Users are also free to calibrate their profiles' privacy
settings to control who can view the information contained on the profile. 19 If another Facebook user wishes to view or post
on a profile that has restricted viewing access, the user must friend, the other party--send a request for friend status--and the
party must accept in order for the user to view the profile. 20 Once the requester obtains friend status, the requester can then
view the information contained on the profile and post comments on the user's wall. 21 Through *1025 the various applications
and functions available to all users, Facebook facilitate[s] the sharing of information. 22
MySpace 23 and LinkedIn 24 are structurally similar to Facebook. MySpace also allows users to create profiles and share
information with other users. 25 LinkedIn invites its users to create profiles summarizing their professional accomplishments
and goals, upload resumes, post job listings, and connect with other professionals. 26 Both MySpace and LinkedIn also provide
privacy controls that allow users of the sites to limit the information that is publicly viewable. 27 Users who wish to gain fuller
access to a restricted profile must also request such access. 28
Twitter is a slightly different form of social media site. 29 Rather than maintaining a profile, Twitter users distribute tweets-short messages consisting of 140 characters or less. 30 Other users are invited to follow each other on Twitter and gain instant
notification when a user issues a new tweet. 31 Most Twitter accounts and tweets are publicly viewable. In fact, Twitter recently
partnered with Google to make all publicly available tweets and Twitter users searchable on Google. 32 Although the default

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setting for all Twitter users is to have tweets publicly available, users can opt to set *1026 privacy controls restricting the
ability to view their tweets to their followers alone. 33 In such an event, a Twitter user interested in viewing another user's
tweets that are not publicly accessible must request to follow the user, and the user must accept. 34
III. Uncovering Evidence Contained on Social Media Sites
Social media sites have increasingly found a place in the litigation process because they contain a wealth of personal information
and can be either a goldmine or smoking gun, depending on [the] perspective. 35 Codes of professional conduct charge
lawyers with the ethical obligation to represent clients competently 36 and diligently, 37 which includes, among other things,
conducting exhaustive legal research and factual investigations. 38 Commentators recognize that searching social media sites is
now commonplace--some even suggest mandatory--in any thorough litigation-related fact investigation. 39 Yet, in the course
of zealously representing clients with the requisite competence and diligence, lawyers may not violate their other ethical
obligations. 40 Thus, while lawyers must recognize social media sites as a source of potentially vital information, they must
also select the proper and ethical channel to conduct their investigation of the sites. 41 Generally, lawyers have at their disposal
two options: (1) formal discovery, and (2) informal discovery. Although formal *1027 discovery is ethically sound, it does not
always provide the most efficient or successful means for obtaining evidence. 42 Conversely, informal discovery can readily
provide the desired information, but can potentially lead lawyers ethically astray if conducted improperly. 43
A. Formal Discovery of Social Media: Ethically Sound But Practically Problematic
A lawyer wishing to obtain evidence contained on an otherwise private social media site may ethically seek such information
by utilizing formal discovery mechanisms. 44 Several courts have allowed formal discovery of information contained on social
networking sites 45 and find the practice is entirely ethical so long as the lawyer ensures that his or her discovery request is
made in good faith and comports with the appropriate laws. 46 The Federal Rules of Civil Procedure, the equivalent state rules,
and other laws applicable to electronically stored information govern the discoverability of social media. 47 However, added
layers of complexity accompany any formal request for discovery of information contained on social media sites, given the
notions of privacy associated with the sites and the existence of multiple entities with access to and control of the information
contained thereon. 48
*1028 Courts have recognized that the privacy interests associated with information contained on social media sites cannot
serve as an absolute bar to discovery. 49 Despite this recognition, courts will often take into consideration the potential
invasion of privacy associated with discovery of social media profiles when determining the adequacy of discovery requests. 50
Generally, courts will reject a pure fishing expedition into private matters . . . [and] hesitate in ordering wide-scale discovery
[of social media profiles]. 51 Thus, given the attendant privacy concerns, courts may place heightened importance on the
narrowness of requests for information contained on social media sites. 52
Confusion also surrounds the proper party, entity, or individual to subpoena for the information contained on social media
profiles, and who is entitled to hand over the evidence. The United States District Court for the Central District of California
has recognized that the Stored Communications Act 53 can be grounds for quashing subpoenas issued directly to MySpace
and Facebook ordering the production of certain stored information from a party's profile. 54 In relevant part, the Stored
Communications Act provides that an electronic communication service provider cannot knowingly divulge to any person
or entity the contents of a communication while in electronic storage by that service . . . . 55 Because of the Stored
Communications Act, parties may not be able to obtain information directly from the service providers, e.g., Facebook,

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MySpace, Twitter, without also obtaining the account owner's consent. 56 Ultimately, *1029 formal discovery is an ethical
channel for obtaining access to social media profiles, but the procedural and technical structure in which to conduct formal
discovery of social media is still in a somewhat fledgling state. 57
B. Informal Discovery of Social Media: Practically Efficient But Ethically Problematic
Although avenues for the formal discovery of social media sites are emerging, many practitioners and courts still favor informal
discovery because of its efficiency, ability to canvas a broad range of information, and cost effectiveness. 58 Social media sites
are dynamic, and the content contained on each profile changes frequently. 59 Informal discovery allows for timely research and
collection of information before it disappears. 60 However, unlike formal discovery, informal discovery of social media sites
carries with it numerous ethical pitfalls. 61 Although courts have not yet *1030 addressed the ethics of informal discovery of
social media sites, several city and state ethics committees have recently considered hypothetical scenarios and analyzed the
ethical problems associated with informal discovery of information on social media sites. 62 The opinions generally reason that
informal discovery of social media sites presents two primary ethical problems: (1) use of deceptive investigatory tactics, a
practice commonly referred to as pretexting, and (2) engagement in prohibited communications. 63
1. Recent Ethics Committee Opinions Addressing the Use of Social Media
The Philadelphia Bar Association Professional Guidance Committee (PBA) was the first ethics committee to address the
ethics of informal discovery of social media sites. 64 An inquirer asked whether a lawyer could ethically enlist one of his
employees to friend an unrepresented witness, who was not a party to the lawsuit, in order to gain access to the witness's social
media profiles. 65 The inquirer had recently deposed the witness and during the deposition learned that the witness maintained
Facebook and MySpace profiles. 66 Shortly thereafter, the inquirer conducted research of the witness's profiles finding that he
could not access the information contained on the profiles without obtaining the witness's permission. 67 The inquirer believed
that the profiles contained information that could be used to impeach the witness if she were to testify at trial and believed from
his research that the witness had a tendency to liberally accept friend requests even from unfamiliar individuals. 68 However,
the inquirer feared that the witness would not grant him access to her profiles if he asked directly, and *1031 instead, desired
to enlist one of his employees to friend the witness in an attempt to gain access to her profile. 69
The PBA began its analysis by looking to the Pennsylvania Rules of Professional Conduct (Pennsylvania RPC) and finding
that the proposed behavior would implicate at least three of the Pennsylvania Rules. 70 First, because the proposed behavior
involved a third party, the PBA considered Pennsylvania RPC 5.3, making lawyers ethically responsible for conduct of a third
party if the lawyer orders or, with the knowledge of the specific conduct ratifies the conduct involved[.] 71 The PBA reasoned
that if the proposed behavior violated another Pennsylvania Rule the lawyer would be responsible for the acts of the employee
because, at a minimum, the lawyer had knowledge of and ratified the specific conduct. 72
Second, the PBA considered whether or not the employee's conduct would constitute a violation of the Pennsylvania Rules such
that the behavior would be attributable to the overseeing attorney. 73 The PBA specifically looked to Pennsylvania RPC 8.4,
which prohibits lawyers from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation through his or her
own acts or the acts of another. 74 The inquirer expressly desired to have the third-party employee request access to the witness's
profile rather than directly requesting himself because he believed that the witness would deny his request but would accept the
request of an unknown person. 75 Thus, the inquirer intended to use the third-party request to conceal that he was seeking access
to obtain potential impeachment evidence. 76 The PBA suggested that the inquirer could *1032 simply [ask] the witness

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forthrightly for access . . . [which] would not be deceptive and would of course be permissible. 77 However, because the
inquirer intended the employee's request to conceal a material fact, namely that he was seeking to obtain impeachment evidence
from the witness's profile, the employee's conduct was deceptive and violated Pennsylvania RPC 8.4(c). 78 Consequently,
the lawyer would be responsible under both Pennsylvania RPC 8.4(a) and Pennsylvania RPC 5.3(c)(1). 79
Although some states allow for limited use of covert and deceptive investigatory tactics akin to the tactic at issue in this advisory
opinion, the Committee found that Pennsylvania recognized no such exception to the absolute reach of Pennsylvania RPC
8.4, and all deceptive investigatory practices are categorically unethical. 80 Finally, without explanation, the Committee found
that the inquirer's proposed conduct also constituted a false statement and violated Pennsylvania RPC 4.1, which prohibits
lawyers from making false statements of material fact to third persons. 81 Therefore, the Committee advised the inquirer that his
proposed behavior implicated at least three of the Pennsylvania Rules of Professional Conduct and would be an impermissible,
unethical form of investigation. 82
In September 2010, both the New York State Bar and the New York City Bar Associations addressed the issue of how a lawyer
might ethically access information from social media sites. 83 The New York State Bar (NYSB) determined that lawyers may
ethically access and view the public pages of another party's Facebook and MySpace profiles. 84 In rendering this decision, the
NYSB analyzed the Philadelphia decision agreeing with the committee that the two primary areas of concern were deception
and improper communication. 85 Because the question before the NYSB pertained to only the publicly accessible pages of a
social media profile, the committee found that a lawyer would not engage in any deception or communication when accessing
the sites. 86 Consequently, the conduct in question would be ethical. 87
*1033 Shortly thereafter, the New York City Bar Association's Committee on Professional Ethics (NYCBA) issued an
advisory opinion answering the narrow question of whether a lawyer, acting either alone or through an agent . . . may resort to
trickery . . . to gain access to an otherwise secure social networking page and the potentially helpful information it holds. 88
The NYCBA looked to the state's policy in favor of informal discovery and determined that a categorical ban of informal
discovery of social media would be improper. 89 Instead, informal discovery should be allowed, and the Committee offered a
few scenarios in which such discovery would be ethically permissible. 90 The Committee concluded that a lawyer or a lawyer's
agent could ethically use his or her real identity and social networking profile to send a friend request to an unrepresented
person without also disclosing the reasons for making the request. 91
Conversely, the Committee determined that the use of a false identity a nd fabricated profile would clearly violate the New
York Code of Professional Responsibility (New York Code of Prof'l Resp.). 92 Similar to the PBA, the NYCBA looked to
New York Code Prof'l Resp. R. 8.4, 93 prohibiting attorneys from engaging in conduct involving dishonesty, fraud, deceit
or misrepresentation, and New York Code Prof'l Resp. R. 4.1, 94 prohibiting lawyers from making false statements of fact
or law to third persons while in the course of representing a client. 95 The NYCBA determined that a lawyer violated the
aforementioned rules any time the lawyer or lawyer's agent used false pretenses, i.e., a false identity and false *1034 profile,
to obtain evidence from a social media site. 96 The committee also recognized that New York has carved out several exceptions
to the general prohibition on deceptive, covert investigatory tactics but found that the availability of formal discovery rendered
all possible exceptions inapplicable to the instant matter. 97 Thus, the committee deemed social media an acceptable research
tool, albeit with some restrictions. 98
Finally, on May 24, 2011, the San Diego County Bar Association Ethics Committee (SDCBA) addressed the issue of whether
a friend request on Facebook constitutes an impermissible ex-parte communication. 99 In the factual scenario presented to

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the Committee, a lawyer was representing an individual in a wrongful discharge action. 100 After the defendant employer had
filed its answer to the complaint, the lawyer began sending friend requests to some of the high-ranking employees at his
client's former company. 101 The lawyer believed the high-ranking employees were also dissatisfied with their employer and
may have posted disparaging comments on their Facebook profiles about their employer's treatment of employees. 102
The Committee concluded that sending a friend request to a represented party would constitute a violation of California
Rule of Professional Conduct 2-100, which prohibits a lawyer, while representing a client, from communicating directly or
indirectly about the subject of the representation with a party the lawyer knows is represented. 103 Based on California law, the
Committee first determined that high-ranking employees would constitute parties within the meaning of the rule. 104 When
determining if a friend request constitutes communication, the Committee posited that if transferred from the virtual world
to an in-person interaction *1035 there would be no question that a friend request is in fact a communication. 105 Indeed,
the Committee suggested that a friend request is tantamount to telling the opposing party, [p]lease give me access to your
Facebook page so I can learn more about you. 106 While conceding that the communication may not appear to concern the
subject of the representation, the Committee relied on the broad scope of discovery and the use of open-ended questions in fact
gathering to conclude that the request also concerned the subject matter of the representation. 107
The Committee then looked to the PBA, NYSB, and NYCBA opinions and agreed with the central holdings of each opinion. 108
The Committee agreed that a lawyer's general duty not to deceive extended to social media and requires that a lawyer provide a
statement identifying the lawyer's involvement in a representation when sending friend requests to unrepresented persons for
purposes of fact gathering. 109 Ultimately, the Committee concluded that a lawyer may never request access to a represented
party's profile and may only request access to the profiles of unrepresented persons after providing full disclosure of the purpose
for the request. 110 The Committee found this rule strikes the right balance between allowing unfettered access to what is
public on the Internet about parties without intruding on the attorney-client relationship of opposing parties and surreptitiously
circumventing the privacy even of those who are unrepresented. 111
All four ethics boards found that the respective state codes of professional conduct did not foreclose all informal discovery of
social media websites; however, the Committees emphasized that lawyers must be cautious not to run afoul of professional
ethics while conducting such discovery.
2. General Authorities on Pretexting
Pretexting is a somewhat amorphous concept that generally refers to the use of deceptive and surreptitious tactics to uncover
evidence. 112 *1036 Specifically, pretexting typically involves a lawyer, or lawyer's agent, concealing or falsifying his or her
identity and purpose in order to obtain information. 113 Commentators have suggested that pretexting does not depend on the
depth of deception, but instead, depends on the level of privacy invaded through the use of less-than-forthright tactics. 114
The Model Rules do not directly address pretexting, but the practice of pretexting implicates five specific Model Rules: 115 (1)
Model Rule 4.1, prohibiting lawyers from making false statements of material fact; 116 (2) Model Rule 4.2, prohibiting lawyers
from communicating about the subject of a matter with a person known to be represented by counsel; 117 (3) Model Rule
4.3, prohibiting lawyers from making misleading statements to unrepresented third parties; 118 (4) Model Rule 8.4, prohibiting
lawyers from *1037 engaging in conduct involving dishonesty, fraud or deceit; 119 and (5) Model Rule 5.3, making lawyers
ethically liable for enlisting or ratifying the acts of a third party that violate any of the aforementioned rules. 120

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The blanket prohibition on deceptive tactics encompassed in most codes of professional conduct has led some courts to harshly
criticize and condemn the practice of pretexting. 121 For example, in Midwest Motor Sports, Inc. v. Arctic Cat Sales, Inc., the
United States District Court for the District of South Dakota sanctioned a lawyer who enlisted an investigator to conduct and
record interviews under false pretenses to elicit specific admissions from employees of the defendant corporation. 122 Similarly,
in In re Crossen and In re Curry, the Supreme Court of Massachusetts upheld the disbarment of lawyers who conducted a sham
interview of a former judicial clerk to gather evidence of a judge's bias toward the lawyers' client. 123 As Midwest Motor Sports,
Crossen, and Curry demonstrate, pretexting is not only forbidden in multiple states but also carries with it a host of severe
punishments for lawyers that choose to engage in the restricted practice. 124
However, in some instances, courts and ethics committees have shown a willingness to carve out exceptions to the abovementioned rule, allowing *1038 lawyers or their agents to engage in pretexting for the purpose of uncovering evidence in
highly specified situations when the lawyers could not likely obtain the information by any other means. 125 New York has
carved out exceptions allowing the use of pretexting to uncover ongoing violations of civil or intellectual property rights. 126
In Gidatex v. Campaniello Imports, Ltd., the United States District Court for the Southern District of New York affirmed the
admission of evidence obtained by private investigators who posed as customers and spoke to furniture store employees to
uncover the store's trademark infringement. 127 The court found strong policy reasons in favor of such investigations because
undercover investigations are often the only means to detect intellectual property right violations. 128 Although the lawyer's
use of investigators technically violated the literal language of the New York Rules of Professional Conduct, the court found
no violation because [the lawyer's] actions simply do not represent the type of conduct prohibited by the rules. 129 Thus,
the court relied heavily on policy considerations allowing admission of the evidence and refusing to impose sanctions on the
lawyer who oversaw the investigations. 130
Several years after the Gidatex ruling, the New York County Lawyer's Association (NYCLA) issued an advisory opinion
permitting the use of pretextual activity in specified circumstances. 131 Largely grounding its reasoning on the Gidatex holding,
the NYCLA provided that pretexting was permitted when:
(i) either (a) the investigation is of a violation of civil rights or intellectual property rights and the lawyer believes
in good faith that such violation is taking place or will take place imminently or (b) the dissemblance is expressly
authorized by law; and (ii) the evidence sought is not reasonably and readily available through other lawful
means; and (iii) the lawyer's conduct and the investigator's conduct that the lawyer is supervising do not *1039
otherwise violate the New York Lawyer's Code of Professional Responsibility (the Code) or applicable law;
and (iv) the dissemblance does not unlawfully or unethically violate the rights of third parties. 132
The New York approach to pretexting creates only a very narrow window for the use of covert investigations. 133
Although some states recognize exceptions to the general ban on pretexting and deception, the allowance of any pretextual
activity is a hotly debated and heavily criticized topic. 134 Moreover, the situations in which the pretexting exceptions apply
are not easily identifiable and only apply when lawyers have no other acceptable means of obtaining the information. 135 Thus,
most commentators still advise attorneys contemplating the use of pretexting to proceed with caution. 136
3. General Authorities on Prohibited Communications
Model Rule 4.2 prohibits communication regarding the subject of a representation between a lawyer and a person that the
lawyer knows to be represented by counsel. 137 The Rule applies generally to persons represented in conjunction with the

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pending matter rather than specifically pertaining to named parties to the proceeding. 138 Furthermore, the Rule proscribes all
communication regarding the subject of the representation between a lawyer and a represented person, including communication
the lawyer initiates himself or herself and communication that the represented person initiates with the opposing lawyer. 139 Any
form of direct communication, including *1040 in person, telephonic, written or electronic communication, may constitute
a violation of the rule. 140
In 2005, the Oregon State Bar Association Board of Governors (OSBA) issued a formal advisory opinion discussing Internet
based communication. 141 The OSBA addressed two specific issues: (1) whether a lawyer may visit the public website of
an opposing party, and (2) whether a lawyer may communicate via the website with the opposing party. 142 In rendering its
decision, the committee considered the Oregon Rules of Professional Conduct Rule 4.2 (Oregon RPC 4.2), 143 which prohibits
lawyers from engaging in communication with represented parties. 144
The committee concluded that a lawyer would not violate Oregon RPC 4.2 by simply viewing the public website, including a
website requiring payment of an access fee, of a represented party, as the conduct would not involve any communication. 145
Instead, the Committee reasoned that viewing a public website was akin to reading a magazine or newspaper article even if the
website charged an access or subscription fee. 146 However, any attempt to communicate through written electronic messages
over the website would constitute an obvious violation of Oregon RPC 4.2 because written communications via the Internet
are directly analogous to written communications via traditional mail. 147 Thus, the committee concluded that, although not
all Internet activity constituted communication, any Internet activity directly analogous to traditional forms of communication
fell within the proscription of Oregon RPC 4.2. 148
*1041 IV. How to Ethically Use Social Media for Fact Investigation
In light of a lawyer's duty to conduct adequate fact investigations that comport with the applicable rules of professional
conduct, it is imperative that lawyers understand how to ethically navigate social media under the current standards. To provide
lawyers with the necessary guidance to avoid potentially unintended ethical violations, the American Bar Association should
also develop supplementary guidelines to the Model Rules specifically addressing and illustrating how lawyers may ethically
investigate social media. 149
A. The Best Practice Under the Current Rules
Under the current standards, the best approach for investigating social media sites for potential evidence is a conservative
use of informal discovery, resorting to formal discovery channels when access to the desired site appears ethically uncertain.
Generally, this will allow lawyers to conduct only passive review of publicly available pages informally and will require lawyers
to utilize formal discovery mechanisms to obtain access to the privatized profiles of represented persons. 150
*1042 With regard to the ethical ways of conducting informal discovery of social media, the Philadelphia and New York
opinions 151 seem to set the upper and lower boundaries: a lawyer cannot obtain access to a social media profile under false
pretenses, but a lawyer may freely investigate the public pages of a social media profile. 152 Although the ethical rules at issue
in both the Pennsylvania and New York opinions mirror the language of the equivalent Model Rules, the PBA and NYCBA
opinions differ in their treatment of having an agent friend an unrepresented person. 153 The PBA rejected the inquirer's
proposal to have an employee request access to an unrepresented witness's profile because the act would involve deceit, in
violation of Rule 8.4, and would constitute a false statement, in violation of Rule 4.1. 154 Presumably, the employee's friend
request would implicate the ethical rules because the employee was not fully disclosing the purpose of the request. Thus, if

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the employee disclosed the true purpose of the request-- obtaining access to the witness's profile so that the lawyer could search
for potentially useful impeachment evidence--the conduct would not implicate any ethical rules. 155
However, the NYCBA concluded that the very conduct at issue in the PBA opinion would be ethical. 156 The committee stated
that it would be perfectly ethical for a lawyer, or a lawyer's agent, to friend an unrepresented person without also providing
a statement disclosing the purpose of the request. The apparent distinction is that under the New York Rules, the concealment
of purpose as related to unrepresented persons is considered neither deceitful nor a false statement by omission of fact. 157
Although some exceptions to the general ban on pretexting exist, lawyers should be wary of engaging in pretextual activity via
social media sites. Both the PBA and New York ethics committees expressed strong aversion to the use of false identities and
fabricated profiles on social media. 158 *1043 Moreover, as detailed above, the exceptions to the general ban on pretexting are
highly limited and only apply when no other mode for obtaining the evidence is available. 159 Because formal discovery of social
media sites is becoming increasingly available, informal discovery involving pretexting would not likely be the only means of
obtaining the desired evidence. The use of pretexting in informal discovery of social media profiles would consequently only
be potentially permissible in the pre-filing stage of litigation--prior to the time formal discovery devices are available.
Finally, the SDCBA and NYCBA opinions dictate that requesting friend or follower status alone can constitute a form
of communication that regards the subject matter of a representation. 160 However, the OSBA opinion regarding corporate
websites appears to reach the opposite conclusion regarding whether requesting access to a certain webpage constitutes
communication. Indeed, the OSBA committee suggested that a lawyer may permissibly access a website even if access is
conditioned on paying a fee. 161 Sending a friend request is analogous to paying an access fee to view a public website as
both require performing a preliminary activity in order to gain access. Yet, unlike paying an access fee on a public corporate
website, gaining access to a profile through a request for friend or follower status requires the account owner to individually
approve the request and thus respond directly to the individual who made the request. In this regard, a request becomes more
akin to a form of communication. Consequently, the OSBA opinion may in fact be consistent with the SDCBA and NYCBA's
conclusions that friend requests constitute prohibited communication. Consequently, lawyers should limit their use of social
media in fact investigation to passive review alone, and if taking a conservative approach, should refrain from requesting access
to privatized profiles of represented persons. 162
In conclusion, under the current direction of the ethics committees that have addressed the issue of the investigatory use of
social media and the general authority regarding pretexting and prohibited communications, the following standards indicate
the current understanding of best practices under the Model Rules, and their state equivalents:
*1044 (1) Unless a lawyer is entirely clear on the pretexting authority in his or her jurisdiction and confidently feels that the
use of a false identity on a social media site would fall within a pretexting exception, lawyers should never use false identities
and fabricated profiles to obtain access to and information contained on social media sites.
(2) A lawyer using his or her true identity may request friend or follower status of an unrepresented person, but should
include with the request a statement disclosing the purpose of the request.
(3) A lawyer may enlist a third party agent to request friend or follower status of an unrepresented person, but should also
include with the request a statement disclosing the purpose of the request.
(4) Lawyers should refrain from requesting friend or follower status of a represented person's profile.
(5) A lawyer should not engage in interactive review--posting, messaging, tweeting--of a represented person's social media
profile.

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In situations not captured in the above standards, a lawyer should err on the side of caution and resort to formal discovery
methods when he or she wishes to gain access to a private social media profile.
B. The Need for a Supplemental Standard
Given the ubiquity of social media in modern society, lawyers would be remiss in their charge of due diligence to categorically
ignore and decline to investigate social media. 163 Furthermore, social media is not simply a new, interactive forum onto which
lawyers can graft the current Model Rules and understand how to ethically utilize the new technology. Rather, social media
presents ethical scenarios, which the Model Rules alone cannot easily resolve. Although the current Model Rules provide a
basis for identifying and discussing the ethical issues associated with the use of social media as a tool for fact investigation, the
Model Rules as they currently stand do not provide comprehensive guidance to lawyers on the matter. Indeed, the few ethics
committees analyzing the ethical challenges of social media websites have interpreted the permissible scope of investigation
differently despite the parallel nature of the ethic rules under which the committees are *1045 analyzing the proposed actions.
Thus, the addition of supplementary standards would alleviate much of the concern and confusion surrounding social media
and the ethical way that lawyers can use social media to gather evidence.
As mentioned above, the Model Rules and existing authorities generally outline the extreme standards regarding ethical
investigation of social media sites. However, the scenarios presented to the Philadelphia and New York Committees dealt
with a fairly black and white distinction between public and private profiles, and the Committees merely applied the current
ethical rules to reassert the obvious: Lawyers may not engage in intentional deception or misrepresentation, and lawyers are
not permitted to communicate about the subject of a pending matter with a represented party, whether in person or through
email-like communication. The areas between the obviously public and obviously private profiles present the most substantial
ethical questions, and the current Model Rules do not clearly provide guidance. For example, when a Facebook profile's privacy
settings are calibrated so that only friends of friends, or common network members may view the information contained
thereon, could a lawyer ethically friend a person with whom the target maintains a friend status, or could the lawyer change
his or her network in order to gain fuller access to the target's profile? Or, could a lawyer use the profile of a common friend
to access the target's profile?
In the first scenario, the lawyer could potentially change networks ethically so long as the lawyer honestly fit within the
community he or she wished to join, as a network is simply a faceted group of the public invited to view information posted
by the target. Yet, if pretexting and deception are not marked by falsity but instead by intrusions of privacy, a network change
for the purpose of gaining access to otherwise blocked information may tread the border between ethically sound behavior and
ethically proscribed behavior. 164 In the second scenario, the lawyer would literally be assuming the identity of the common
friend to undertake investigation, which seemingly raises deception problems. However, the lawyer would not be in violation
of his or her ethical obligations if the common friend simply provided the lawyer with the information contained on the target's
profile. Similarly, questions still surround when a lawyer must provide a statement of purpose and precisely what interactions
constitute communication on social media sites.
*1046 Accordingly, any supplementary standards enacted to further flesh out the ethics of social media investigation should
address the following matters: (1) can a lawyer develop and change 165 an existing social media profile in order to gain access
to a person's profile that the lawyer could not have accessed under the current state of his or her profile; (2) does a request for
friend or follower status constitute communication concerning the subject matter of a representation within the meaning of
the Model Rules; (3) from whom may a lawyer request friend or follower status; (4) when must a lawyer issue a statement
disclosing the purpose for requesting further access to the otherwise private profile of an unrepresented person; and (5) whether a
lawyer may use a third party's profile, which has pre-existing friend or follower status with the investigatory target's profile,
to obtain information from the target's profile. Implementing supplementary and interpretive standards specifically addressing

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the use of social media as an investigatory tool will help preserve informal discovery as a channel of fact investigation and will
help to ensure that lawyers properly utilize this emerging source of information.
V. Conclusion
Social media has created an entirely new venue for fact investigation, and lawyers must learn to embrace it as a new source of
information. Although the ethical rules governing the investigation of social media sites do not provide comprehensive guidance
for lawyers, lawyers can ethically engage in investigations of social media by taking a conservative approach to informal
discovery investigations and turning to formal discovery mechanisms when in doubt. Social media sites are still relatively new
entities and can easily appear confusing and daunting to the inexperienced user. Supplemental standards to the current Model
Rules can alleviate confusion surrounding the ethical uses of social media for fact investigation, ensure that lawyers stay up
to date with the technological advancements that are altering the necessary channels of due diligence, and help open the door
to a new world of information and potential evidence.
Footnotes
a1
Note and Comment Editor, Arizona State Law Journal. J.D. Candidate, May 2012, Sandra Day O'Connor College of Law at Arizona
State University; B.A., English, Gonzaga University, 2009. The Author would like to thank Professor Bob Dauber for his advisory
assistance, and extends special gratitude to the student editors who assisted during the writing of this article.

Press Room: Statistics, Facebook, http:// www.facebook.com/press/info.php?statistics (last visited Sept. 16, 2011) [hereinafter
Facebook Statistics] (reporting [m]ore than 750 million active users).

Ben Parr, Twitter Hits 50 Million Tweets Per Day, Mashable, Feb. 22, 2010, http://mashable.com/2010/02/22/twitter-50-milliontweets/.

Shannon Awsumb, Social Networking Sites: The Next E-Discovery Frontier, 66 Bench & Bar of Minn. 22, 22 (2009).

See generally Paula Berg, Revolutionizing Corporate Communication: 6 Tips for Implementing Social Media and Inspiring
Organizational Change, Huffington Post, June 8, 2010, available at http:// www.huffingtonpost.com/paula-berg/revolutionizingcorporate_b_603183.html (providing suggestions for implementing a social media business platform and embracing [social media]
as a primary driver of daily communications).

Abigail S. Crouse & Michael C. Flom, Social Media for Lawyers, 67 Bench & Bar of Minn. 16, 16 (2010) (A 2009 global study of
the legal industry's use of social media technology found that 75 percent of lawyers were members of a social networking site ....).

Bonnie Malkin, Australian Couple Served with Legal Documents via Facebook, Telegraph, Dec. 16, 2008; Pamela D. Pengelley,
Fessing Up to Facebook: Recent Trends in the Use of Social Network Websites for Insurance Litigation, 7 Can. J. L. & Tech. 319,
319 (2010).

See generally Pengelley, supra note 6, at 319; David Garrett, Mining Web 2.0 as a Source of Evidence, Law Tech. News, Jan.
6, 2010, http:// www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202437419175; Stephanie Chen, Divorce Attorneys
Catching Cheaters on Facebook, June 1, 2010, CNN.com, http://articles.cnn.com/2010-06-01/tech/facebook.divorce.lawyers_1_
privacy-settings-social-media-facebook?_s=PM:TECH.

Philip K. Anthony & Christine Martin, Social Media Going to Court, Law Tech. News, Feb. 3, 2009, http:// www.law.com/
jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202427941512; Vesna Jaksic, Finding Treasures for Cases on Facebook, Nat'l
L. J., Oct. 15, 2007, http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1192179809126; Ken Strutin, Evidence on
Social Networking Sites, Law Tech. News, Nov. 11, 2009, http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?
id=1202435338350.

Infra notes 19-22.

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10

This scenario is modeled after a hypothetical question presented to the Philadelphia Bar Association Professional Guidance
Committee. Phila. Bar Ass'n Prof'l Guidance Comm., Formal Op. 2009-02, 1 (2009). The entirety of the opinion and the committee's
reasoning will be discussed in Part II of this comment.

11

Infra Part III.B.

12

The terms social networking sites and Web 2.0 are commonly used to refer to social media. See, e.g., Seth P. Berman et al., Web
2.0: What's Evidence Between Friends?, 53 Bos. B. J. 5, 5-6 (2009) (describing Web 2.0 as all emerging social media sites and a
means of facilitating open and dynamic exchange of information).

13

Sharing and Finding You on Facebook, Facebook, http:// www.facebook.com/about/privacy/your-info-on-fb (last visited
Sept. 19, 2011); Privacy Policy, MySpace, http://www.myspace.com/index.cfm? fuseaction=misc.privacy (last visited
Sept. 19, 2011) [hereinafter Mypsace Privacy Policy]; Privacy Policy, LinkedIn, http://www.linkedin.com/static?
key=privacy_policy&trk=hb_ft_priv (last visited Sept. 19, 2011) [hereinafter LinkedIn Privacy Policy].

14

Facebook Statistics, supra note 1 (reporting [m]ore than 750 million active users); Factsheet, MySpace, http:// www.myspace.com/
pressroom/fact-sheet/ (last visited Oct. 10, 2010) (reporting 122 million active users); About Us, LinkedIn, http://press.linkedin.com/
about (last visited Sept. 19, 2011) [hereinafter LinkedIn About Us] (reporting 120 million active users). Other popular social media
sites include YouTube, Digg, and Friendster.

15

Factsheet: About Facebook, Facebook, http:// www.facebook.com/press/info.php?factsheet (last visited Sept. 19, 2011).

16

Id.

17

Id.

18

Id.

19

Privacy options include allowing only friends, friends of friends, or everyone to view the information contained on a user's
profile. Privacy options include allowing information contained on a user's profile to be visible to the Public, Friends, or users
can Customize who can view their information. Sharing and Finding You on Facebook, supra note 13. A 2008 study of college
students using Facebook found that only 32% of the users interviewed had their privacy settings calibrated to the highest setting to
restrict viewing of their personal information. Kevin Lewis et al., The Taste for Privacy: An Analysis of College Student Privacy
Settings in an Online Social Network, 14 J. Computer-Mediated Comm. 79 (2008).

20

See Factsheet: About Facebook, supra note 15; Sharing and Finding You on Facebook, supra note 13.

21

See Factsheet: About Facebook, supra note 15; Sharing and Finding You on Facebook, supra note 13; Data Use Policy: Sharing
and finding you on Facebook, Facebook, http://www.facebook.com/about/privacy/ #!/about/privacy/your-info-on-fb (last visited
Sept. 28, 2011).

22

Factsheet: About Facebook, supra note 15.

23

MySpace attracts a slightly younger membership than Facebook, and is heavily focused on up and coming entertainment, touting
itself as the world's largest music community. About Us, MySpace, http:// www.myspace.com/Help/AboutUs (last visited Oct.
6, 2011).

24

LinkedIn is a professional network geared towards gaining and sharing professional and career contacts. LinkedIn About Us, supra
note 14. Currently, LinkedIn has 120 million active users. Id.

25

Terms of Use Agreement, MySpace, http://www.myspace.com/Help/Terms (last visited Oct. 5, 2011).

26

LinkedIn About Us, supra note 14.

27

Myspace Privacy Policy, supra note 13; LinkedIn Privacy Policy, supra note 13.

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28

For ease of discussion, this article will refer to all requests for viewing access made on Facebook, MySpace, and LinkedIn as
friending or requests for friend status.

29

See, e.g., According to Twitter, Twitter asks what's happening and makes the answer spread across the globe to millions instantly.
RITA Twitters, U.S. Dep't of Transp. Research & Innovative Tech. Admin., http:// www.rita.dot.gov/twitter/ (last visited Sept. 20,
2011).

30

What is Twitter?, Twitter, http://business.twitter.com/basics/what-is-twitter (last visited Sept. 19, 2011).

31

Id.

32

See Adam Ostrow, Breaking: Google Announces Search Deal with Twitter, Mashable, Oct. 21, 2009, http://
mashable.com/2009/10/21/google-twitter-search-deal/; Google Custom Search: Twitter Search, Google, http:// www.google.com/
cse/home?cx=004053080137224009376%3Aicdh3tsqkzy (last visited Sept. 3, 2011). The Library of Congress has also decided to
archive all publicly accessible tweets. Cecilia Kang, Library of Congress Plan for Twitter: A Big, Permanent Retweet, Wash. Post,
Apr. 16, 2010, available at http:// www.washingtonpost.com/wp-dyn/content/article/2010/04/15/AR2010041505752.html.

33

Twitter Privacy Policy, Twitter, http://twitter.com/privacy (last visited Sept. 3, 2011).

34

Id.

35

Pengelley, supra note 6, at 320.

36

Model Rules of Prof'l Conduct R. 1.1 (2007) (A lawyer shall provide competent representation to a client. Competent representation
requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.).

37

Id. R. 1.3 (A lawyer shall act with reasonable diligence and promptness in representing a client.).

38

Id. R. 1.1 cmt. 5 (Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of
the problem, and use of methods and procedures meeting the standards of competent practitioners.).

39

Awsumb, supra note 3, at 24 (Just as it would be unthinkable nowadays to conduct discovery without considering what email
evidence may be available, attorneys should give the same attention to social networking information to ensure that all smoking guns
have been uncovered and addressed.); Chen, supra note 7 (At least 80 percent of attorneys surveyed by the American Academy of
Matrimonial Lawyers cited a growth in the number of cases that used social media over the last five years.).

40

Model Rules of Prof'l Conduct R. 1.3 cmt. 1 (The lawyer's duty to act with reasonable diligence does not require the use of offensive
tactics ....).

41

Id. (The lawyer's duty to act with reasonable diligence does not require the use of offensive tactics ....).

42

Infra Part III.A.

43

Infra Part III.B.

44

See, e.g., Romano v. Steelcase, Inc., 907 N.Y.S.2d 650, 657 (N.Y. 2010) (granting defendant's discovery request for information
contained on plaintiff's MySpace and Facebook profiles).

45

Bass ex rel. Bass v. Miss Porter's School, No. 3:08cv1807, 2009 WL 3724968, at *1 (D. Conn. Oct. 27, 2009) (ordering production
of plaintiff's historical Facebook records after Court conducted in camera review to determine relevance of information); Romano,
907 N.Y.S.2d at 657 (ordering plaintiff to provide defense with an executed consent and authorization form allowing Facebook and
MySpace to release the historical records of plaintiff's profiles).

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46

E.g., N.Y. City Bar Assoc. Comm. on Prof'l Ethics, Formal Op. 2010-2, 3 (2010) (juxtaposing informal and formal discovery of
social media and suggesting that the latter is categorically ethical so long as the attorney requesting discovery complies with the
appropriate legal standards).

47

Romano, 970 N.Y.S.2d at 652-54 (analyzing the propriety of defendant's discovery request under New York Rules of Civil
Procedure); Order Regarding Plaintiff's Motion for Protective Order Pursuant to Fed. R. Civ. P. 26(c) Regarding Subpoenas Issued to
Facebook, MySpace, Inc. and Meetup.com, Ledbetter v. Wal-Mart Stores, Inc., No. 06-cv-01958-WYD-MJW, 2009 WL 1067018,
at *1 (D. Colo. Apr. 21, 2009). In addition to general procedural rules, federal statutes such as the Stored Communications Act and
Electronic Communications Privacy Act may also govern whether or not parties can access information stored on social networking
profiles by availing themselves of the tools of formal discovery. See, e.g., N.Y. State Bar Assoc. Comm. on Prof'l Ethics, Op. 843
(2010).

48

See infra notes 49-57.

49

See Romano, 970 N.Y.S.2d at 656-57.

50

T.V. v. Union Twp. Bd. of Educ., UNN-L-4479-04 (N.J. Super. Ct. Dec. 22, 2004) (rejecting discovery request for information
contained on plaintiff's MySpace and Facebook profiles because plaintiff's privacy interests prevailed, absent a particular showing
of relevance).

51

Steven C. Bennett, Civil Discovery of Social Networking Information, 39 Sw. L. Rev. 413, 420 (2010) [hereinafter Bennett, Civil
Discovery] (discussing the current state of formal discovery for social networking information and recognizing that lawyers must
narrowly tailor discovery requests in order to successfully obtain the desired information from the social networking sites) (internal
quotation marks omitted).

52

See T.V. v. Union Twp. Bd. of Educ., UNN-L-4479-04 (N.J. Super. Ct. Dec. 22, 2004). Accord Bennett, Civil Discovery, supra note
51, at 421-23 (identifying privacy interests as one hurdle to formal discovery of social media profile information); Beth C. Boggs
& Misty L. Edwards, Does What Happens on Facebook Stay on Facebook? Discovery, Admissibility, Ethics, and Social Media,
98 Ill. B.J. 366, 368 (2010) (identifying the same).

53

18 U.S.C. 2701-2712 (2002).

54

Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965, 976, 989-91 (C.D. Cal. 2010).

55

18 U.S.C. 2702(a)(1) (2011).

56

Romano v. Steelcase, Inc., 907 N.Y.S.2d 650, 652 (N.Y. 2010) (analyzing discovery request for social media profile in light of
the Stored Communications Act, which it interpreted to prohibit an entity, such as Facebook and MySpace from disclosing such
information without the consent of the owner of the account and ordering plaintiff to provide such consent).

57

More in-depth analysis of the procedural technicalities and difficulties associated with formal discovery of social media sites is outside
the scope of this article. For more robust discussion of such issues see Awsumb, supra note 3 (summarizing cases involving formal
discovery of social media); Bennett, Civil Discovery, supra note 51 (discussing generally the procedures and problems associated
with formal discovery of social media); Boggs & Edwards, supra note 52 (discussing issues associated with the use of social media as
evidence in litigation); Evan E. North, Facebook Isn't Your Space Anymore: Discovery of Social Networking Websites, 58 U. Kan.
L. Rev. 1279, 1300 (2010) (championing the adoption of the Canadian model for discovery of social media websites); Andrew C.
Payne, Twitigation: Old Rules in a New World, 49 Washburn L.J. 841, 849 (2010) (arguing that social media does not fall within the
scope of electronically stored information as the term was intended when added to the discovery provisions of the 2006 amendments
to the Federal Rules of Civil Procedure).

58

See N.Y. City Bar Ass'n Comm. on Prof'l Ethics, Formal Op. 2010-2, 2 (2010) (discussing New York policy in favor of maintaining
channels of informal discovery).

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59

See Facebook Statistics, supra note 1 (Average user creates 90 pieces of content each month. More than 30 billion pieces of content
(web links, news stories, blog posts, notes, photo albums, etc.) shared each month.).

60

Cf. North, supra note 57, at 1308 (noting that informal research is often necessary to ascertain the nature of available information
contained on social media sites and stressing the importance of requesting that such information be preserved in its current state
when making formal discovery requests).

61

See, e.g., N.Y. City Bar Ass'n Comm'n on Prof'l Ethics, Formal Op. 2010-2, 1-2 (The prevalence of ... social networking websites,
and the potential benefits of accessing them to obtain evidence, present ethical challenges for attorneys navigating these virtual
worlds.); N.Y. State Bar Ass'n Comm'n on Prof'l Ethics, Op. 843 (2010); Phila. Bar Ass'n Prof'l Guidance Comm., Op. 2009-02
(2009) (deeming unethical an attorney's instruction for employee to friend adverse witness on a social networking site); Steven
C. Bennett, Ethics of Pretexting in a Cyber World, 41 McGeorge L. Rev. 271, 277-78 (2010) [hereinafter Bennett, Pretexting]
(using informal discovery of content contained on social media websites as an example of cyber activity that can lead attorneys to
violate rules of professional ethics).

62

N.Y. City Bar Ass'n Comm'n on Prof'l Ethics, Formal Op. 2010-2; N.Y. State Bar Ass'n Comm. on Prof'l Ethics, Op. 843; Phila.
Bar Ass'n Prof'l Guidance Comm., Op. 2009-02.

63

N.Y. City Bar Ass'n Comm'n on Prof'l Ethics, Formal Op. 2010-2, 2-3; N.Y. State Bar Ass'n Comm'n. on Prof'l Ethics, Op. 843;
Phila. Bar Ass'n Prof'l Guidance Comm., Op. 2009-02.

64

Phila. Bar Ass'n Prof'l Guidance Comm., Op. 2009-02.

65

Id. at 1.

66

Id.

67

Id.

68

Id.

69

Id. The Pennsylvania Rules involved in this advisory opinion are identical in language to the ABA Model Rules. See infra notes
71, 74, 103-06.

70

Phila. Bar Ass'n Prof'l Guidance Comm., Op. 2009-02, 1-3.

71

Id. at 2. The PBA specifically referred to Pennsylvania Rules of Professional Conduct, Rule 5.3(c)(1), which provides, [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 ... the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved ....

72

Phila. Bar Ass'n Prof'l Guidance Comm., Op. 2009-02, 2.

73

Id.

74

Id. The PBA specifically referred to Pennsylvania Rule of Professional Conduct 8.4(a), 8.4(c), which provide in full:
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through
the acts of another ...
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation ....

75

Phila. Bar Ass'n Prof'l Guidance Comm., Op. 2009-02, 2.

76

Id.

77

Id. at 3.

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78

Id. at 3-4.

79

Id.

80

Id. at 4-5.

81

Id. at 4.

82

Id.

83

N.Y. State Bar Ass'n Comm'n. on Prof'l Ethics, Op. 843, (2010); N.Y. City Bar Comm'n on Prof'l Ethics, Formal Op. 2010-2 (2010).

84

N.Y. State Bar Ass'n Comm'n. on Prof'l Ethics, Op. 843, 3.

85

Id. at 2.

86

Id. 2-3.

87

Id.

88

N.Y. City Bar Comm'n on Prof'l Ethics, Formal Op. 2010-2, 2.

89

Id. (citing Niesig v. Team I, 76 N.Y.2d 363, 372 (N.Y. 1990) and Muriel Siebert & Co., Inc. v. Intuit Inc., 8 N.Y.3d 506, 511 (N.Y.
2007)).

90

Id.

91

Id.

92

Id. at 3.

93

In relevant part, the rule provides:

A lawyer or law firm shall not:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through
the acts of another;
(b) engage in illegal conduct that adversely reflects on the lawyer's honesty, trustworthiness or fitness as a lawyer;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice ....
N.Y. Code of Prof'l Responsibility R. 8.4 (2009).

94

Id. R. 4.1 (In the course of representing a client, a lawyer shall not knowingly make a false statement of fact or law to a third person.).

95

N.Y. City Bar Comm'n on Prof'l Ethics, Formal Op. 2010-2, 3.

96

Id.

97

Id. at 3-4.

98

Id at 4.

99

San Diego Cnty. Bar Ass'n Legal Ethics Comm. Op. 2011-2, 1 (2011).

100

Id.

101

Id.

102

Id.

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103

Id. at 1-8. In relevant part, California Rule of Professional Conduct 2-100 provides:
(A) While representing a client, a member shall not communicate directly or indirectly about the subject of the representation with a
party the member knows to be represented by another lawyer in the matter, unless the member has the consent of the other lawyer.
(B) [A] party includes: (1) An officer, director, or managing agent of a corporation ... or (2) An ... employee of [a] ... corporation ...
if the subject of the communication is any act or omission of such person in connection with the matter which may be binding upon
or imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part
of the organization.

104

San Diego Cnty. Bar Ass'n Legal Ethics Comm. Op. 2011-2, 2.

105

Id at 3.

106

Id.

107

Id at 5.

108

Id at 7-13.

109

Id at 12-13.

110

Id at 13.

111

Id.

112

See David J. Dance, Pretexting: A Necessary Means to a Necessary End?, 56 Drake L. Rev. 791, 792 (2008) (The investigation
industry defines pretexting broadly as almost any form of deception employed to obtain private information.); David B. Isbell &
Lucantonio N. Salvi, Ethical Responsibility of Lawyers for Deception by Undercover Investigators and Discrimination Testers, 8
Geo. J. Legal Ethics 791, 792-93 (1995) (discussing dissemblance, i.e. pretexting, as involving misrepresentations as to identity
and purpose made for fact-gathering purposes); Douglas R. Richmond, Deceptive Lawyering, 74 U. Cin. L. Rev. 577, 578 (2005)
(defining the general concept of pretexting as [s]urrepetitious discovery and covert investigations conducted by lawyers or at their
discretion).

113

Apple Corps Ltd. v. Int'l Collectors Soc'y, 15 F. Supp. 2d 456, 475 (D.N.J. 1998) (describing the process of pretexting/dissemblance
as involving the concealment of one's identity or purpose).

114

Bennett, Pretexting, supra note 61, at 275 (indicating that the problem with pretexting lies in the degree of intrusion and the type
of information that may be obtained through deception).

115

Commentators consistently cite the following rules when discussing the ethics of pretexting. See Bennett, Pretexting, supra note 61,
at 272-73; Dance, supra note 112, at 804; Isbell & Salvi, supra note 112, at 811; Richmond, supra note 112, at 579-84.

116

The Model Rule provides in full:

In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person; or
(b) fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless
disclosure is prohibited by Rule 1.6.
Model Rules of Prof'l Conduct R. 4.1 (2007).

117

The Model Rule provides in full:

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to
be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by
law or a court order.
Id. R. 4.2.

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118

The Model Rule provides in full:

In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer
is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role
in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an
unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of
such a person are or have a reasonable possibility of being in conflict with the interests of the client.
Id. R. 4.3.

119

The Model Rule provides in relevant part:

It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through
the acts of another...
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation ....
Id. R. 8.4.

120

The Model Rule provides in relevant part:

(c) 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; or
(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct
supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but
fails to take reasonable remedial action.
Id. R. 5.3.

121

See, e.g., Midwest Motor Sports, Inc. v. Arctic Cat Sales, Inc., 144 F. Supp. 2d 1147, 1158 (D.S.D. 2001); In re Crossen, 880 N.E.2d
352, 377, 388 (Mass. 2008); In re Paulter, 47 P.3d 1175, 1182 (Colo. 2002); In re Gatti, 8 P.3d 966, 973 (Or. 2000).

122

144 F. Supp. 2d at 1158.

123

Crossen, 880 N.E.2d at 388; Curry, 880 N.E.2d at 410-411.

124

See Midwest Motor Sports, 144 F. Supp. 2d at 1158; Crossen, 880 N.E.2d at 388; Curry, 880 N.E.2d at 410-11.

125

See, e.g., Gidatex v. Campaniello Imports, Ltd., 82 F. Supp. 2d 119, 126 (S.D.N.Y. 1999); Apple Corps Ltd. v. Int'l Collectors
Soc'y, 15 F. Supp. 2d 456, 475 (D.N.J. 1998) ([A] public or private lawyer's use of an undercover investigator to detect ongoing
violations of the law is not ethically proscribed, especially where it would be difficult to discover the violations by other means.);
N.Y. Cnty. Lawyers Ass'n Comm. on Prof'l Ethics, Op. 737, at 6 (2007), available at http:// www.nycla.org/siteFiles/Publications/
Publications519_0.pdf.

126

Gidatex, 82 F. Supp. 2d at 126; N.Y. Cnty. Lawyers Ass'n Comm. on Prof'l Ethics, supra note 125, at 5.

127

82 F. Supp. 2d at 126.

128

Id. at 122-23.

129

Id. at 126.

130

Id. at 122-23, 126.

131

N.Y. Cnty. Lawyers Ass'n Comm. on Prof'l Ethics, supra note 125, at 2-6.

132

Id. at 1.

133

Gidatex, 82 F. Supp. 2d 119 passim; N.Y. Cnty. Lawyers Ass'n Comm. on Prof'l Ethics, supra note 125, at 6.

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134

See, e.g., Isbell & Salvi, supra note 112, at 795 (arguing that the use of discrimination testers to uncover civil rights discrimination is
an ethical practice and does not constitute pretexting). Compare Dance, supra note 112, at 807 (criticizing the allowance of pretexting
in any capacity as defacing the name of the legal profession).

135

Gidatex, 82 F. Supp. 2d 119 passim; N.Y. Cnty. Lawyers Ass'n Comm. on Prof'l Ethics, supra note 125 at 6.

136

See, e.g., Bennett, Pretexting, supra note 61, at 275 ([L]awyers must proceed with great caution in this area.); Gerald B. Lefcourt,
Fighting Fire with Fire: Private Attorneys Using the Same Investigative Techniques as Government Attorneys, 36 Hofstra L. Rev.
397, 416 (2007) ( Attorneys must be careful not only to be on the cutting edge of investigative technologies in zealously representing
their clients, but also on the cutting edge of ethical approaches to using that technology.).

137

Model Rules of Prof'l Conduct R. 4.2 (2007).

138

Id.

139

Id.

140

Id.

141

Or. State Bar Ass'n Bd. of Governors, Formal Op. 2005-164, 452 (2005), available at http://www.osbar.org/_docs/
ethics/2005-164.pdf.

142

Id. at 452.

143

The Rule provides in full:

In representing a client or the lawyer's own interests, a lawyer shall not communicate or cause another to communicate on the subject
of the representation with a person the lawyer knows to be represented by a lawyer on that subject unless:
(a) the lawyer has the prior consent of a lawyer representing such other person;
(b) the lawyer is authorized by law or by court order to do so; or
(c) a written agreement requires a written notice or demand to be sent to such other person, in which case a copy of such notice or
demand shall also be sent to such other person's lawyer.
Or. R. Prof'l Conduct 4.2. This Rule contains the same text as the Model Rules of Professional Conduct Rule 4.2.

144

Or. State Bar Ass'n Bd. of Governors, supra note 141, at 452.

145

Id. at 453-54.

146

Id.

147

Id. at 454.

148

Id.

149

In September 2009, the ABA convened the ABA Commission on Ethics 20/20 to engage in a substantive review of the Model Rules
to determine their adequacy in light of technological developments. ABA Commission on Ethics 20/20, http://www.americanbar.org/
groups/professional_responsibility/aba_ commission_on_ethics_20_20.html (last visited Sept. 6, 2011). The Commission intends to
assess developments in the use of technology (such as social media websites) for client development and marketing. During its review
of the Model Rules, the Commission can and should also consider developing supplementary comments or an advisory paper to
address the issues raised in this article. See generally Angela O'Brien, Comment, Are Attorneys and Judges One Tweet, Blog or Friend
Request Away From Facing a Disciplinary Committee?, 11 Loyola J. Pub. Int. L. 511, 532-33 (2010) (discussing the ABA's prior use
of supplemental comments to address email communications and suggesting that supplemental standards would be a viable option for
addressing ethical considerations surrounding the personal use of social media by lawyers and judges). The Texas Bar Association is
also in the process of drafting supplemental standards to provide lawyers with guidance regarding advertising, solicitation, and social

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media. See Dustin B. Benham, The State Bar of Texas Provides New Guidance to Attorneys Regarding the Proper Use of Social
Media and Blogs for Advertising Purposes, 52 Advocate (Texas) 13, 14-16 (2010).

150

For purposes of this section, the term private profile refers to a profile on which no information can be viewed publicly. The term
public profile refers to a profile on which all information may be publicly viewed. However, below will discuss why that distinction
is not so easily drawn.

151

N.Y. City Bar Ass'n Comm'n on Prof'l Ethics, Formal Op. 2010-2 (2010); N.Y. State Bar Ass'n Comm'n on Prof'l Ethics, Op. 843
(2010); Phil. Bar Ass'n Prof'l Guidance Comm'n, Op. 2009-02 (2009).

152

Although these opinions are advisory in nature and not binding authorities, they provide the most direct analysis of social media
investigations and set forth workable standards by which lawyers can guide their conduct, thus warranting discussion of the
conclusions set forth therein.

153

Compare N.Y. City Bar Ass'n Comm'n on Prof'l Ethics, Formal Op. 2010-2, 2, with Phila. Bar Ass'n Prof'l Guidance Comm., Op.
2009-02, 3.

154

Phila. Bar Ass'n Prof'l Guidance Comm'n, Op. 2009-02, 3.

155

Id. at 2-3.

156

N.Y. City Bar Ass'n Comm'n on Prof'l Ethics, Formal Op. 2010-2, 2.

157

Id.

158

Id. at 3; N.Y. State Bar Ass'n Comm'n on Prof'l Ethics, Op. 843; Phila. Bar Ass'n Prof'l Guidance Comm'n, Op. 2009-02, 3-4.

159

See supra notes 111-19 and accompanying text.

160

N.Y. City Bar Ass'n Comm'n on Prof'l Ethics, Formal Op. 2010-2, 2.

161

The Committee extended its definition of public websites to include websites requiring access fees. Or. State Bar Ass'n Bd. of
Governors, Formal Op. 2005-164, 453 n.1 (2005).

162

See Shirin Chahal, Note, Balancing the Scales of Justice: Undercover Investigations on Social Networking Sites, 9 J. Telecomm. &
High Tech. L. 285 (2011) (proposing that criminal defense lawyers should differentiate between passive and active review in order
to ethically conduct covert investigations on social media sites).

163

The Virginia State Bar Association posted a list of ethical rules implicated by social media use and included in the list a lawyer's
duty to conduct due diligence as part of competent representation.

164

Bennett, Pretexting, supra note 61, at 279 (indicating that the problem with pretexting lies in the degree of intrusion and the type
of information that may be obtained through deception).

165

Changes to existing profiles might include network changes on Facebook or LinkedIn or may involve becoming a follower of a
Twitter user, whom the lawyer did not previously follow but whose tweets are viewable to the public, so as to gain instantaneous
notice any time the user issues a new tweet. These changes involve action on behalf of the lawyer but would not involve requesting
access in order to view the information.

End of Document

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