Can a lawyer or investigator send a fake or deceptive 'friend request' to view someone's private social media page for use in litigation?
NYC Bar Ethics Opinion 2010-02: Obtaining Evidence From Social Networking Websites
Short answer: A lawyer may not use deception, directly or through an investigator, to gain access to a person's private social networking page, but may send a truthful "friend request" using the lawyer's or investigator's real name and profile.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York City Bar Association's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.
Plain-English summary
The opinion addresses one narrow question: whether a lawyer, acting alone or through an agent such as a private investigator, may use trickery on the internet to reach an unrepresented person's otherwise secure social networking page. The committee concludes that the lawyer may not.
The committee grounds the answer in Rules 8.4(c) and 4.1. Rule 8.4(c) prohibits conduct involving "dishonesty, fraud, deceit or misrepresentation," and Rule 4.1 prohibits a lawyer from knowingly making a false statement of fact to a third person while representing a client. Creating a false profile, or otherwise falsely portraying the requester as a long-lost classmate, prospective employer, or friend of a friend, to induce a witness to accept a "friend request," violates both rules. Under Rule 8.4(a) and Rule 5.3(b)(1), the analysis is the same whether the lawyer does this personally or directs an investigator to do it; the lawyer remains responsible for the agent's deception.
The opinion does not prohibit all contact. Consistent with the Court of Appeals' policy favoring informal discovery (Niesig v. Team I; Muriel, Siebert & Co. v. Intuit), the committee concludes that a lawyer or investigator may use her real name and profile to send a "friend request" to an unrepresented person without disclosing the reason for the request. The line is crossed only when the requester falsely identifies herself.
The committee notes opinions allowing limited deception when key evidence is otherwise unobtainable (N.Y. County 737; ABCNY Formal Op. 2003-02), but finds them inapplicable here because non-deceptive routes, ordinary discovery of the individual or subpoenas to the networking site, are ordinarily available, so trickery cannot be justified as a last resort.
In practice
Under this opinion, a lawyer who, under the New York Rules as they stood in 2010, uses a fabricated identity or a false pretext to obtain access to an unrepresented person's private social media page, whether personally or through an investigator, is engaging in conduct the opinion treats as prohibited deception. The opinion treats a "friend request" sent under the lawyer's or investigator's truthful real name and profile as permitted, subject to compliance with all other rules, including Rule 4.2's restrictions when the person is known to be represented.
Common questions
Q: Can a lawyer create a fake Facebook profile to friend a witness and view their posts?
A: No. The opinion concludes that creating a false profile to induce a "friend request" violates Rules 8.4(c) and 4.1 as deception and a false statement of fact to a third person.
Q: Does it matter if a private investigator, not the lawyer, sends the deceptive request?
A: No. Under Rules 8.4(a) and 5.3(b)(1), the lawyer is responsible for an investigator's deceptive conduct, so the same prohibition applies.
Q: Can a lawyer send a friend request at all?
A: Yes. The opinion permits a lawyer or investigator to send a "friend request" to an unrepresented person using a real name and profile, without disclosing the reason for the request.
Q: Does the "necessity" exception that some opinions allow for deception apply here?
A: The opinion finds it generally inapplicable, because non-deceptive means such as ordinary discovery and subpoenas to the networking site are usually available, so deception cannot be justified as a necessary last resort.
Background and rules framework
The opinion interprets New York's analogues to Model Rule 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation), Model Rule 4.1 (truthfulness in statements to others), Model Rule 5.3 (responsibilities regarding nonlawyer assistants, here NY Rule 5.3(b)(1)), and the imputation provision of Model Rule 8.4(a). It also flags Rule 4.2's no-contact rule as governing if the person is represented, citing N.Y. State 843 (2010) for the separate point that a lawyer may view the public pages of any person's social media without making contact.
Citations and references
Rules of Professional Conduct:
- MR 8.4(c) / NY Rule 8.4(c) (dishonesty, fraud, deceit, or misrepresentation)
- MR 4.1 / NY Rule 4.1 (false statement of fact to a third person)
- MR 5.3 / NY Rule 5.3(b)(1) (responsibility for nonlawyer's conduct)
- MR 8.4(a) / NY Rule 8.4(a) (violating the rules through the acts of another)
Cases:
- Niesig v. Team I, 76 N.Y.2d 363 (1990), policy favoring informal discovery
- Muriel, Siebert & Co. v. Intuit Inc., 8 N.Y.3d 506 (2007), ethical limits on informal ex parte discovery
Other opinions cited:
- N.Y. County Op. 737 (2007): limited dissemblance only when evidence not reasonably obtainable by other means
- ABCNY Formal Op. 2003-02: limited undisclosed taping for a greater societal good
- N.Y. State 843 (2010): a lawyer may access public social media pages of any person
See also
- NYC Bar Ethics Op. 2012-2: Jury Research and Social Media
- NY State Bar Op. 843: Access to Public Pages of Another Party's Social Media
- NY State Bar Op. 977: Social Media Petition and Survey in a Pending Case