Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Sunday, October 10, 2010

Lawyer Ethics and Social Media


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

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Agreed. its a little stupid that state resources are being dealt with when dealing with such an obvious question.

i will add that their claim that you cannot friend a person in that it is inherently dishonest is crap. everyone who uses facebook understands that their "friends" are really strangers who might have really nasty intentions about you.

i think it all comes down to this ridiculous "lawyers can never lie rule." i mean it calls to mind that Geico ad, where the announcer says, "was Abraham Lincoln really, really honest?" And then cue fake old film footage (ignoring that movies were not invented while he was alive), interacting with his wife who asks him if she looks fat in her dress, and lincoln struggling with whether to tell her the truth.

I suppose then the ethics committee would want him to say affirmatively "yes, you do!" it got so bad, that attorneys in virginia needed permission to participate as attorneys of the commonwealth to participate in stings.

What these bar associations forget, and i think it is high time the Federal Courts started reminding them, is that everything they do is in contravention of free speech. that is not to say it is invalid, just that it has to be narrowly tailored to fulfill a compelling purpose.

Posted by: Aaron Worthing | Oct 12, 2010 12:20:51 PM

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