Many resourceful litigators know that these social networking sites, and others like LinkedIn, Twitter, etc. can be “evidentiary gold mines” in civil cases as well. Indeed, if a witness in a case has a profile on a social networking site, an attorney may be able to dig up some pretty juicy (and free) information that could be used to impeach the witness or gain settlement leverage– all without leaving the comfort of her computer terminal.
- Model Rule 4.2 restricts a lawyer’s ability to communicate with a represented person about a given matter without the knowledge and consent of the person’s counsel. “Friending” a party or witness represented by counsel could clearly run afoul of this provision.
- Model Rule 4.3 addresses a lawyer’s communication with unrepresented persons. Again, reaching out an unrepresented witness on a social-networking site could land an attorney in hot water if she is unclear about her identity or her role in the relevant matter.
- Trying to side-step ex parte contact rules by using a third party intermediary is a bad idea for many reasons. It could also violate Model Rule 8.4 as The Philadelphia Bar Association Professional Guidance Committee recently opined in an advisory opinion.