Shelly is a paralegal with the in-house legal department of General Auto Insurance (GAI). Allison Attorney is a lawyer in the legal department. Paula Plaintiff filed a claim with GAI after Dennis Defendant ran into Paula’s car in a parking lot, causing damage to her car. Allison has filed suit against Dennis on behalf of GAI and Paula, and has just taken the deposition of Wendy Witness, who saw the incident, but is also Dennis’s co-worker. Wendy claims that Paula suddenly pulled out of a parking space and contributed to the accident. Allison has reason to think that Wendy and Dennis were drinking heavily at a bar before the incident. She also believes that Wendy posted photos of Wendy and Dennis at the bar on her Facebook® page, but has learned that only “friends” can see that area of her Facebook® page. In her deposition, Wendy stated that she grants virtually all requests to be “friended.” If Allison asked Shelly to do so (because Wendy does not know Shelly is Allison’s paralegal), could Shelly go on to Facebook®, request that Wendy “friend” her, and download copies of any photos of Dennis drinking at the bar before the accident?
Explanation
Answer: A - Shelly cannot request that Wendy “friend” her and download copies because Allison, through Shelly, would be engaging in deceptive conduct. Under the Rules of Professional Conduct, lawyers are prohibited from engaging in conduct involving deception, misrepresentation, or fraud. Moreover, a lawyer cannot ask a non-attorney employee to engage in conduct that is prohibited to the lawyer. Answer B is incorrect because photos are discoverable, but Allison may need to serve a subpoena on Facebook® and/or Wendy to obtain copies. Answer C is incorrect because it does not consider Allison’s ethical obligations. Answer D is incorrect because the scenario does not state that Dennis gave Wendy permission to post his photos.
