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Lawyers and Social Media

Social media websites such as Facebook, Twitter, and Linkedln have transformed electronic communications and social communications all around the globe. These communication techniques have affected many litigation practices and have created many traps for the unsuspecting person. The opinion from a recent advisor in Pennsylvania concludes that utilizing a third party to make contact with a witness through a “friend” request on Facebook or other social media website, and using that information found through the website in the litigation is deceiving information according to the Pennsylvania Rule of Professional Conduct 8.4. This type of contact through a social website is considered a violation due to the fact that the communication would purposely hide and exclude material facts from the witness for the sole purpose of inducing the witness to allow access; when the witness might not have done so if they knew the third person was involved with the inquirer and the sole reasoning of the access was to obtain information for the purpose of impeaching her testimony. In regards to Rule 4.1, the Pennsylvania ethics committee ruled that such deceptive conduct would also constitute the manufacture of a false statement of material facts to a witness. Despite the technology, all attorneys should avoid the use of third parties to access private websites for use in litigation that they have not been granted permission to access themselves or is not normally accessible to the public. Social media has become such a powerful tool, so lawyers must be cautious of the ethical pitfalls that can arise by communicating through websites and that user rules can exceed the casual and personal use that lawyers are used to.

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