Here’s a real-world example that plopped into my lap on Monday:
Two individuals are friends on Facebook. Facebook Friend No. 1 (FBF1) is a male attorney. Facebook Friend No. 2 (FBF2) is a female with protected updates (i.e., to friends only). FBF2 has an accident (and for the sake of this discussion, let’s assume insurance is not involved), and actually posts about the accident at the scene or shortly thereafter through her iPhone Facebook app, and then later through her home computer. FBF1, as a friend, is privy to all of her statements on Facebook. Other friends respond to her posts with questions and comments. FBF2, not wanting to leave her family or friends out of the loop responds in detail. All the while, of course, FBF1 is in the loop. As a few days go by, FBF2 continues to post about her experience, illiciting responses from friends and family. Sometime after the accident, FBF2 believes she has an actionable claim and contacts FBF1 through Facebook email, seeking help. FBF1 agrees to represent her, but remains friended to her through Facebook. During the course of negotiations, FBF2 posts updates about her extracurricular activities that suggest her health is fine, contrary to the claims made.
So here are my top 4 questions:
1. Is FBF1, the attorney, a witness?
Comment: I think he is because he has access to information forming the basis of the suit. Now he isn’t the only witness necessarily, as FBF2 might have a hundred or more other friends who read the posts in the stream or even commented on them, but he is a witness nevertheless.
2. Is FBF1 disqualified from representing FBF2?
Comment: I don’t know. There was a good article in the recent edition of the Texas Bar Journal on attorney disqualification, and at least in this example, the attorney wouldn’t be the only one who could offer testimony on an essential element of FBF2′s case. That alone would probably keep the attorney from being disqualified. But it certainly would be embarrassing having to be deposed assuming opposing counsel could get that far. Now, if FBF1 is an associate who got a partner involved only to have this issue pop up later, well, that could be a different problem altogether.
3. If FBF2 continues to post updates about her condition, the events leading up to the accident, or her case after she has retained FBF1, has some portion of the attorney-client privilege been waived?
Comment: I have no clue on this one. If FBF1 remains a “friend” to FBF2 and receives the posted updates, are those communications to the attorney disclosed to unnecessary third persons? I’m thinking the attorney has an obligation, after assuming representation, to “unfriend” the friend cum client to avoid this question.
4. Are all of FBF2′s friends witnesses, and can I subpoena them to find out what they know about the facts of the case?
Comment: Yes. As an attorney, I’m glad that FBF2 has given me a list of potential witnesses to interview once suit has been filed and I’ve obtained the Facebook postings. The idea of being able to contact friends of FBF2 to find out what they know about the accident makes me kind of giddy in fact, particularly because it will make the witness uncomfortable having to deal with me. For a good post on subpoenaing information from Facebook, see the Lawyerist post here. [SHAMELESS PROMOTION WARNING: We will be releasing the O'Connor's California Civil Pretrial Handbook next year, and I can assure you that the subpoena chapter is amazing.]
I’m sure there are many other issues here, I’m just not smart enough to see them all. So please, discuss below and let me know what you think.
[Image (cc) by madmolecule]
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