Technology almost always advances quicker than the law can keep up with it. However, attorneys may now have some guidance to an unanswered question – is Facebook fair game for investigation? Last week the New York State Bar Association and the New York City Bar Association both issued ethics opinions addressing when lawyers may use Facebook or other social networking sites to aid in litigation.
The NYSBA addressed the question of whether an attorney, during a pending action, may view the profile page of a party that is not their client in order to obtain information, including impeachment material. The Association answered that this was an ethical practice, so long as the page was open for “public” viewing. The NYSBA contrasted this with a 2009 Philadelphia Bar Association opinion in which it was deemed fraudulent, deceitful, and against the ethics code for an attorney to have a third-party make a “friend request” to a non-represented witness in order to view that party’s private profile. The NYSBA opinion follows the logic that public information is available for anyone to view, while private information is not.
In a very technical and detailed opinion, the NYCBA opined that attorneys or third-parties acting on the attorney’s behalf may send “friend” requests to individuals not represented by an attorney, provided that they identify who they are and why they are making a friend request. Similar to the Philadelphia Bar Association opinion, the NYCBA believes that the ethics code would prohibit attorneys from obtaining private information through deceitful means.
While not specifically noted in either opinion, it seems to follow that the ethics code would prohibit sending a “friend request” to an individual represented by counsel. Of course if the party is represented by counsel, but has a public profile, then it would not violate any ethics codes if an attorney were to view the profile.
Thanks to Alex Niederman for his contribution to this post.
NYSBA opinion: <a href="http://www.nysba.org/AM/Template.cfm?Section=Home&CONTENTID=43208&TEMPLATE=/CM/ContentDisplay.cfm">http://www.nysba.org/AM/Template.cfm?Section=Home&CONTENTID=43208&TEMPLATE=/CM/ContentDisplay.cfm</a>
NYCBA opinion: <a href="http://www.nycbar.org/pdf/report/uploads/20071997-FormalOpinion2010-2.pdf">http://www.nycbar.org/pdf/report/uploads/20071997-FormalOpinion2010-2.pdf</a>