Sunday, October 10, 2010
Can a lawyer use publicly available information on Facebook in a pending case without friending the person. In NYS Bar Opinion No. 843 (Sep't. 10, 2010), the NYS Bar Association says yes:
Topic: Lawyer's access to public pages of another party's social networking site for the purpose of gathering information for client in pending litigation.
Digest: A lawyer representing a client in pending litigation may access the public pages of another party's social networking website (such as Facebook or MySpace) for the purpose of obtaining possible impeachment material for use in the litigation.
Rules: 4.1; 4.2; 4.3; 5.3(b)(1); 8.4(c)
A copy is available by clicking Download Facebook
Sui Generis provides a summary of several other ethical opinions that have been issued on this topic.
Frankly, I do not even see how this is an issue. If someone posts something on Facebook, a lawyer, a professor and an employer can use it just as if that individual published a book or a newspaper article in college. If a lawyer misrepresents who he or she is (in order to be "friended" on Facebook), that is a different question than presented in this ethical opinion.
Mitchell H. Rubinstein
Hat Tip: New York Public Personnel Law