14 Comments

1. PatrickKelley  •  Nov 10, 2009 @8:56 am
   

   Can't you just have a PI do that? This is obviously a public page open to friend requests, so while I can understand why you would be loathe to have an employee do this, it is pretty standard for lawyers to avail themselves of the service of private investigators. Hell, ask Perry Mason.

   This being MySpace, on the other hand, I wouldn't suggest you get to worked up over the possible salaciousness of any such photos. MySpace supposedly has standards that will get you banned if you have inappropriate photos, though these standards might be relaxed by the fact the page must be viewed by by acceptance of a friend request. Still, it sounds like she is open to any friend requests, so don't expect too much.

   I put a photo of Priapus on my MySpace profile once, as a joke, for my profile picture. Priapus of course has an erect penis that is larger than he is, at least in this picture. It was obviously not a real person, in fact I think it was a photo of a small sculpture, but MySpace had taken it down within three days. Admittedly, though, this was a public profile.

2. Chris Berez  •  Nov 10, 2009 @9:01 am
   

   You could always have the clerk send the friend request to get better access to the pictures on the grounds that said pictures sound hot…

3. Patrick  •  Nov 10, 2009 @9:25 am
   

   A private investigator is the attorney's agent, so I'd be leery of that route Patrick.

   As for contacting a represented party, well, I'd have an attorney doing this to one of my clients before a judge in a New York minute. I'd enjoy hearing him explain why the subject of the communication had nothing to do with the matter on which I'm representing my client (obtaining impeachment evidence most assuredly does concern the subject of representation).

   I'd also enjoy his explanation of why the communication, "Attorney's paralegal wants to be your friend!" didn't violate the prohibition against misrepresentation of facts the lawyer knows to be false. The true communication would be, "Attorney's paralegal wants one-time access to your MySpace page in order to obtain impeachment evidence which will allow Attorney to make you look like an alcoholic deviant slut at trial!"

4. Dwight Brown  •  Nov 10, 2009 @9:34 am
   

   "…my determination was that it was close to the line, and therefore we would not do it."

   I admire you for that, Ken.

   As I've stated in the past, I am not a lawyer, and do not play one on television, so please forgive a possibly stupid question: could you subpoena the MySpace photos, etc. from MySpace itself?

5. Patrick  •  Nov 10, 2009 @9:41 am
   

   Of course he could, and he could also send a request for production to the other party's lawyer. He doesn't want to do it because the discovery will tip the other side off as to what's going on.

   But I don't think this is even close to the line. It crosses over.

6. PatrickKelley  •  Nov 10, 2009 @10:24 am
   

   I would think MySpace could challenge such a subpoena. There are privacy issues involved here. The minute you click on the little icon saying "I have read and understand the conditions", both sides have agreed to certain requirements, including privacy constraints. MySpace might even be obligated to appeal the subpoena. The complainants lawyer almost certainly will if they don't.

   You might have to make do with whatever portion of the MySpace profile is publicly visible and hope that's enough. If she is to all intents and purposes advertising hot lesbian action, it might well be. A lot of this, naturally, would be dependent on what exactly is the nature of the sexual abuse complaint.

   It might leave a bad taste in your mouth, but having taken the case, you are obligated to represent your client to the best of your ability within the confines of the law. Therefore, if you need this MySpace evidence as a means of calling her character into question and thus serving to impeach her testimony by appealing to normal societal standards and mores, you might have to suck it up and do just that.

7. Eric T.  •  Nov 10, 2009 @10:53 am
   

   I don't think it's a close call. You can't have your agent contact a party represented by counsel. The only reason for the contact would be for litigation purposes.

8. Mike  •  Nov 10, 2009 @1:34 pm
   

   First, I see nothing creepy about seeking all evidence that can exculpate your client. That's zealous advocacy. I think it's creepy that the Rules make it more difficult for a lawyer to obtain exculpatory evidence.

   Second, I think the answer is less obvious that the commentariat suggest.

   What is the matter she retained the lawyer for? To help her testify in the criminal case? Or to possibly pursue a civil lawsuit? If it's the latter, then the contact would not concern the "subject of the representation." Here, you want to impeach her in a criminal prosecution. What happens in the civil case is none of your concern.

9. Scott Jacobs  •  Nov 10, 2009 @1:47 pm
   

   There's always a short recess if the witness says something you believe will be contradicted by her Myspace account. I mean, it shouldn't take more than a few minutes for her and her lawyer to give someone access to the profile right there, and a couple minutes more to find the needed pics.

   I would think.

   But my knowledge of how the law works comes from Law & Order episodes, Matlock, and Perry Mason, so I might be wrong.

10. eb  •  Nov 10, 2009 @2:05 pm
    

    what about "friending" a defendant against whom you already have a judgment?

    i would like to "friend" a defendant on facebook in order to obtain his most current e-mail address for collection purposes. he stopped making payments on the judgment amount and cancelled the e-mail address i used to communicate with him. he is out of state so domesticating the judgment and instituting "traditional" collection proceedings against him will be more costly. can you use a social networking site simply as a communication portal and nothing more?

    (said defendant was never represented by counsel – so that is not an issue.)

11. Marc J. Randazza  •  Nov 10, 2009 @2:12 pm
    

    Skill and ethics…. I'm glad that my admiration for you is not misplaced… nope, not one bit.

12. Ken  •  Nov 10, 2009 @2:25 pm
    

    eb, if the person was not represented by counsel, I think it is not a problem.

    With all respect to Patrick and Eric, I'm not convinced this is clear-cut. I think the lawyer clearly represents the witness in connection with her status as a witness in general. That part's not in dispute. The question is whether the communication is a communication "about the subject of the representation" if it's merely a friend request without any substance. I think that an argument can be made either way. However, because it's ambiguous, and because you never know how a judge (or the State Bar) is going to go on a new technology issue, I am not inclined to test the matter.

13. Charles  •  Nov 11, 2009 @9:17 am
    

    Is it unreasonable to take a step back and ask what is actually "impeaching" about having party pictures on MySpace?

    Sure, it will shock a puritanical juror that some girls have fun, but what does being drunk or gay or both at the same time have to do with credibility? I can see a limited range of reasons where it might matter – if the witness is claiming to have been offended by someone else's kink, perhaps – but otherwise it seems like the idea is to penalize a person for having a personality.

14. Eric T.  •  Nov 14, 2009 @4:04 pm
    

    And just one day after you posted this abut friending a witness to get info, comes an article directly on the subject:

    http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1202435338350&Evidence_on_Social_Networking_Sites