Here’s the situation: a witness is heavily involved in social media such that she will “friend” anyone that asks. Some have wondered whether an attorney or her assistant could use their real identity and gain access to, for example, a FaceBook site after the account holder accepts the friend request.

While Virginia has not formally weighed in on the issue, the Philadelphia Bar Association Professional Guidance Committee Opinion 2009-02 concluded that such an investigation would constitute unethical pre-texting. Specifically, a paralegal seeking access to the witness’ social media pages would be doing so under false pretenses, i.e. to find out information about the witness without revealing the true nature of the inquiry. To do so would be in violation of Rule 4.1 (making a false statement of fact to a third-person), Rule 8.4 (misconduct to engage in conduct involving dishonesty), and Rule 5.3 (responsibility for non-lawyer assistants). My sense is that the Virginia State Bar would agree.