Whenever I lecture on social media, invariably Philadelphia Bar Association Opinion 2009-02 comes up. So while the opinion isn’t new (it is from 2009) I thought I would take a moment and share its import with you. Regardless of whether you practice in Pennsylvania, the opinion is based in sound reasoning and I recommend you follow it.
Opinion2009-02 involves an attorney who wisely asked before he acted in having a third party friend a witness in a case. The issue of import here is that the third party wouldn’t hide his relationship with the attorney, but nor would he make it known to the witness.
In response, the Guidance Committee makes it very clear that efforts to have a third party friend a witness in such a manner is unacceptable under the ethical rules.
The Guidance Committee grounds its opinion in the Pennsylvania ethics rules which, in most cases, are very similar to the model rules.
Misconduct – Pa. Rule 8.4 & Truthfulness in Statements to Others – Pa. Rule 4.1
When it comes down to it, the problem the Committee has with the request of friendship in this case is that it is grounded in deceit. There is, I believe a basic difference in the opinion amongst some as to what lying means. Some people seem to feel that a lie is anything in which the truth is hidden. Others feel a lie is something that has to be asserted. In other words, staying silent is not lying, stating something is.
I don’t know about you, but when I was a child I got in as much trouble for with-holding the truth as for speaking a lie. Perhaps that is why my opinion is so fierce as an adult on this issue. Regardless, I strongly agree with the Opinion which states unequivocally that omitting a material fact, as would be done here, is deceitful. The material fact being the relationship the person doing the friending has with the lawyer.
Responsibilities Regarding Non-Lawyer Assistants – Pa. Rule 5.3
In asking the third party (or allowing a third party) to friend a person under such circumstances, the attorney is procuring inappropriate conduct. In doing so the attorney is responsible for that conduct. Since the Committee determines that the conduct is inappropriate, the lawyer, who is supervising the layperson, may not allow the conduct to occur on his behalf.
This is a very basic tenant of the practice of law. Lawyers cannot get other people to do things they themselves are not allowed to do.
So there you have it. According to the Philadelphia Guidance Committee trying to friend someone under false pretenses is an unethical act for an attorney or someone under the attorney’s control.
I note that others might use this false friend technique to obtain information. I have heard of different groups tricking people into friending them and then utilizing the information for various purposes. I would comment that this is an act in which spammers engage quite frequently, so perhaps legitimate groups who would friend people falsely might reconsider the behavior.
For me, the propriety of such an act is highly questionable for laypeople as well as attorneys. That said, such individuals are not obligated under the ethical rules that attorneys must obey. As officers of the court, we are simply held to a higher standard. And so we should be.