by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)
Social media can be a valuable tool for litigators. Every state or local ethics authority that has considered the issue has held that public social media profiles are fair game. So litigators can generally mine the public profiles of witnesses, jurors, or even their own clients for useful information. But the same is not true for private social media profiles. Lawyers attempting to access anyone’s private social media profile are entering an ethical minefield. If someone is represented by counsel, then an attorney requesting access to that person’s private profile violates RPC 4.2, which prohibits communicating with individuals represented by counsel. Even if the person is not represented by counsel, some jurisdictions hold that it is still improper for lawyers to request access to private social media profiles unless they identify themselves and explain why they are requesting access. (Good luck getting someone to accept that friend request.) And requesting access from jurors is always improper because RPC 3.5 prohibits ex parte communications with jurors.
A recent ethics opinion from the Supreme Court of Pennsylvania, Office of Disciplinary Counsel v. Miller, offers another example of lawyers using social media improperly. In that case, respondent was the elected district attorney of Centre County, Pennsylvania. The Centre County judiciary had declared the sale of bath salts to be a nuisance and had enjoined three stores from selling them. Purportedly to track the sale of bath salts and enforce these injunctions, respondent created a fictitious Facebook account under the name “Brittney Bella.” To “portray a connection to the local community,” respondent created a fake backstory for “Brittney Bella,” claiming that she was a Penn State dropout who had moved to State College from Pittsburgh. She also included photos “from around the internet of young female individuals” on Bella’s Facebook profile, “to enhance the page’s allure.”
Once she established the fake Facebook account, respondent “liked” local establishments that sold bath salts, which led people who also “liked” those establishments to send “friend” requests to the fictitious Ms. Bella. Respondent accepted these requests and sent her own “‘friend requests’ in order to appear legitimate.” Respondent also encouraged the attorneys and staff in her office to help her with the Brittney Bella gambit. She told her staff that she “made a Facebook page that is fake for us to befriend people and snoop.” She encouraged them to “use it freely to masquerade around Facebook.” Finally, she requested that they “edit it . . . to keep it looking legit,” and “[u]se it to befriend defendants or witnesses if you want to snoop.” Respondent did not provide any guidance to her staff to prevent contact with defendants or witnesses.
Although respondent would later claim that her fake Facebook page was a “proper law enforcement operation,” she never sought an advisory opinion before creating and using the page. To the contrary, before she created the page, she “discussed with the Pennsylvania State Police the possibility of that entity creating a similar Facebook page,” but the State Police “declined due to information technology concerns, among other issues.” Finally, respondent claimed that the “exclusive purpose” of the fake account was to “facilitate the self-identification of sellers of illegal and highly dangerous synthetic drugs and paraphernalia,” but the account remained active after the stores were raided and owners prosecuted, and even “friended” criminal defendants in other, unrelated cases.
The Disciplinary Board of the Supreme Court of Pennsylvania concluded that respondent violated several ethical rules when she established and used the fake Facebook page. The issue was one of first impression for the Board. But other jurisdictions had addressed it, and had generally held that attorneys who do what respondent did violate the Rules of Professional Conduct. For example, in an ethics opinion, the Philadelphia Bar Association held that attorneys who request access to private social media profiles without explaining to the recipient why they are doing so are “concealing a highly material fact” in violation of RPC 8.4(c) and RPC 4.3.
In Miller, respondent “used pictures of an individual who had no association with the District Attorney’s office, and had a fabricated backstory,” and also encouraged her staff to send “friend requests” from the account, all of which gave a “false impression to the public and conceal[ed] the fact that the page was operated by the District Attorney’s office.” As a result, respondent’s conduct “crossed the boundaries of professional ethics,” and violated several Rules of Professional Conduct, including RPC 8.4(c), which prohibits attorneys from engaging in fraudulent, dishonest, or deceptive conduct.
Finally, the Board rejected respondent’s claim that her fake Facebook page was part of a criminal investigation. The Board noted that attorneys are prohibited from participating in covert operations under RPC 8.4(c). (The Board noted that some states have an exception to this rule that allows prosecutors to engage in covert activity, but Pennsylvania does not.)
Respondent was suspended for “one year and one day” as a result of her conduct.