On February 8, 2019, the Supreme Court of Pennsylvania suspended a lawyer/prosecutor for creating a fake Facebook page in an effort to catch criminals. See Office of Disciplinary Counsel v. Miller, No. 32 DB 2017 (Pa. Feb. 8, 2019).
In an effort to identify stores selling illegal “bath salts,” the respondent, the District Attorney of Centre County, Pennsylvania, created a “fictitious Facebook account under the name of ‘Britney Bella,’ for the purpose of ‘liking’ establishments suspected of selling illegal bath salts” so that her office could identify potential targets for investigation. Id. at 18. After creating the page, the respondent encouraged her staff to “befriend people and snoop.” Id. at 19.
Desite the respondent’s “intent to curb criminal activity in her county,” her conduct was “fraudulent and deceptive” in violation of Rule 8.4(c) (prohibiting “conduct involving dishonesty, fraud, deceit or misrepresentation”). Said the court:
Respondent’s tactics crossed the boundaries of professional ethics. . . . Every lawyer licenesed in Pennsylvania, including prosecutors, is bound by the ethics rules to practice law within this construct.
Id. at 33.
This conduct would likewise run afould of the Louisiana Rules of Professional Conduct. Louisiana Rule 4.1 prohibits a lawyer from “making a false statement of material fact or law to a third person.” Furthermore, in dealing with an “unrepresented person,” Louisiana Rule 4.3 provides that a lawyer “shall not state or imply that the lawyer is disinterested,” and must make “reasonable efforts” to correct any misunderstanding that the person might have about the “the lawyer’s role in a matter.” Thus, a Louisiana lawyer must not lie to anyone as to his identity or purpose in making a friend request on social media. Further, a Louisiana lawyer must make efforts to affirmatively correct any misunderstandings the would-be friend may have about the the lawyer’s loyalties. The takeaway? A Louisiana lawyer may make a friend request to an unrepresented1 person, but the lawyer can’t lie or mislead. If the lawyer’s would-be friend is confused as to the lawyer’s role, the lawyer must correct the confusion.
- As to the propriety of making such a request to a represented person, Louisiana Rule 4.2 would prohibit any friend requests whatsoever if the friend request relates to a matter on which the would-be friend is represented by counsel. ↵
